[00:00:00] Speaker 05:
Our first case for today is 2017-2433, McGuffin versus SSA.

[00:00:06] Speaker 05:
Mr. McGuffin, please proceed.

[00:00:24] Speaker 05:
Please proceed.

[00:00:26] Speaker 00:
May it please the court.

[00:00:27] Speaker 00:
Your honors, good morning.

[00:00:28] Speaker 00:
My name's Clarence Andrew McGuffin.

[00:00:29] Speaker 00:
I'm the petitioner in this case.

[00:00:31] Speaker 00:
Bruce Springsteen said in this song, born in the USA, went back home to the refinery.

[00:00:39] Speaker 00:
Hiram Man said, son, if it was up to me.

[00:00:41] Speaker 00:
This hearkens to William Strong's email to Paula Bosworth, who told Mr. Strong the vet had to be terminated immediately while the other employee

[00:00:56] Speaker 00:
could either be kept or terminated.

[00:00:58] Speaker 05:
The questions of law that this case presents are whether MSPB appeal rights are benefits for purposes of USERRA or whether... Which email is it, because there are a lot of emails back and forth and I have them all in the appendix around page 1,080, which email is it that you think makes the strongest case for a possible USERRA violation?

[00:01:26] Speaker 00:
I think the strongest USERA violation email, Your Honor, would be the one where Paula Bosworth... I need to know what page on the appendix it's on.

[00:01:41] Speaker 04:
Sure.

[00:01:41] Speaker 04:
If it's quoted from one or reported so that one about the vet has to be fired immediately, is that the one you mean?

[00:01:47] Speaker 04:
And if so, which one is that?

[00:01:48] Speaker 00:
That email is at the appendix at page 247, Your Honor.

[00:01:53] Speaker 04:
247?

[00:01:55] Speaker 00:
Yes, Your Honor.

[00:01:58] Speaker 00:
And on the opposing page, which is 241 in my paper copy of the appendix, Your Honor, at the top, there's an email from December 22, 2010.

[00:02:11] Speaker 00:
And in that email, Paula Bosworth, having spoken with Judge McGraw, informs Mark Thompson, who is my supervisor, that we learned today from CHR, Center for Human Resources,

[00:02:28] Speaker 00:
that he is an accepted service employee with veterans preference, and he will acquire adverse action protection, which means he will have MSPB appeal rights after completing one year of current continuous service in the same or similar position.

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We were also informed that any action separating him from employment must be issued by the date mentioned in the email.

[00:02:49] Speaker 00:
And preceding that, Paula Bosworth, who is an attorney for human resources.

[00:02:54] Speaker 05:
Just so I understand who all of the players are,

[00:02:57] Speaker 05:
Who is Mr. Strong in the chain of command?

[00:03:01] Speaker 05:
So Mr. Thompson was your direct line supervisor, correct?

[00:03:04] Speaker 00:
Yes, Your Honor, that's correct.

[00:03:05] Speaker 00:
So who is Mr. Strong?

[00:03:07] Speaker 00:
Mr. Strong was Mr. Thompson's boss.

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He was the hearing office director for the Raleigh ODAR, and he was the decision maker in this matter.

[00:03:15] Speaker 00:
He was the one who signed the termination letter that Mr. Thompson had drafted that they submitted to me on February 4th of 2011.

[00:03:28] Speaker 00:
And so Paula Bosworth was an attorney in Atlanta at the headquarters of Region 4 who provides human resource advice to the managers and supervisors throughout Region 4.

[00:03:43] Speaker 00:
She worked under Deputy Regional Chief Administrative Law Judge Kathleen McGraw, who explained to Paula Bosworth upon Bosworth's query about why it is that a veteran needed to be terminated in the first year rather than the second year.

[00:04:00] Speaker 02:
So what if, hypothetically, a supervisor decides that for a probationary employee, after nine months, the supervisor concludes that this person is just not working out and ought to be terminated?

[00:04:17] Speaker 02:
That wouldn't be an USERRA violation if that was the facts here, would it?

[00:04:23] Speaker 00:
No, Your Honor, it certainly wouldn't.

[00:04:25] Speaker 00:
And I accede that fact.

[00:04:26] Speaker 00:
The issue, as I view it,

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if I may, is that here we had two employees, one myself and the other Ms.

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Banks, both of whom the agency was contemplating terminating.

[00:04:39] Speaker 00:
According to Mr. Strong, we both had performance issues.

[00:04:42] Speaker 00:
That's why he sent the initial query to Paula Bosworth to elicit her professional opinion.

[00:04:48] Speaker 05:
Well, wait.

[00:04:49] Speaker 05:
I thought that the board found, as a matter of fact, that there weren't performance issues with Ms.

[00:04:54] Speaker 05:
Banks.

[00:04:55] Speaker 05:
It was an attendance problem.

[00:04:57] Speaker 05:
And I thought that they actually made a fact finding to that extent.

[00:04:59] Speaker 05:
Am I misremembering the record?

[00:05:02] Speaker 00:
You're not misremembering the record, Judge Moore.

[00:05:05] Speaker 00:
That's absolutely at odds with the evidence of the record and even Mark Thompson's testimony.

[00:05:13] Speaker 00:
The emails that started this whole thing, in fact, said that there were two attorneys who they were considering.

[00:05:24] Speaker 00:
Excuse me, Mr. Strong was contemplating terminating because they're not performing up to the standards that we expect.

[00:05:32] Speaker 00:
And that was me and Angela Banks.

[00:05:34] Speaker 00:
If you look at Angela Banks' performance, the agency contends that the essential functions of the position, excuse me, are to write legally defensible decisions in a timely manner.

[00:05:48] Speaker 00:
Angela Banks had one case for over 93 days.

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She had other cases for 70 days, 60 days, 50, 40, 30.

[00:05:56] Speaker 00:
And so this essential function that they're saying.

[00:05:58] Speaker 02:
But isn't it also true that there was a lot of other counter-evidence in the record that showed that Miss Banks was doing more production than you, or just more work in general through other metrics?

[00:06:13] Speaker 02:
So that we couldn't necessarily say that the story is so compelling that Miss Banks was

[00:06:22] Speaker 02:
as equally behind as you were on certain metrics?

[00:06:26] Speaker 00:
Well, Your Honor, I would say that she was at least equally deficient in whatever metric the agency turns to, whether it's... The DWSIs, for example?

[00:06:39] Speaker 00:
Well, the DWSI, the agency elicited testimony about the DWSI from August until February when I was terminated.

[00:06:49] Speaker 00:
If you look at the whole year's performance,

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DWSI performance metric, which the agency contended wasn't even a performance metric, and which Thompson and Strong and McGraw and Bosworth and Norton, over hours and hours of deposition testimony, insisted was not a performance metric.

[00:07:09] Speaker 00:
It was just a tool for assigning cases.

[00:07:12] Speaker 00:
But if you look at that and assume that it is a performance metric, and you look at Angela Banks, you find that in five out of 10 months, she didn't meet the 100%

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that the agency contends was so essential to the measuring performance.

[00:07:26] Speaker 00:
So the agency wants us to look at their DWSI from August until February.

[00:07:33] Speaker 00:
It wants to look at mine for the entire 12 months, even though the agency dragged its heels to provide me an accommodation until August.

[00:07:43] Speaker 05:
Most of your argument thus far has focused on whether there's a USERA violation.

[00:07:48] Speaker 05:
If I understand the law correctly in this space,

[00:07:51] Speaker 05:
even if there's a USERRA violation, if the agency establishes they would have taken the same action, regardless of the prior military service, then that action is okay, right?

[00:08:04] Speaker 05:
There isn't a problem.

[00:08:05] Speaker 00:
Absolutely.

[00:08:06] Speaker 00:
And I would accede that fact, Your Honor.

[00:08:08] Speaker 05:
It's not a fact.

[00:08:09] Speaker 05:
It's a statement of law.

[00:08:10] Speaker 05:
But on page 20 of the appendix, the board credits Mr. Strong's testimony, which it expressly finds credible,

[00:08:18] Speaker 05:
that he would have taken the same action against a non-veteran who was performing similarly to the appellant after nearly a year on the job.

[00:08:27] Speaker 05:
So what do we do with that?

[00:08:28] Speaker 05:
That is a fact finding by the board based on testimony that it expressly finds to be credible, where he claims that basically anybody who was underperforming at the level that he represents that you were underperforming at, that he would have fired any person, whether they had one year, two years, or 10 years of probationary period, he would have fired them at that point in time.

[00:08:52] Speaker 00:
It's quite an assertion.

[00:08:56] Speaker 00:
Hillen is very clear on what the judge needs to do in order to make credibility determinations.

[00:09:03] Speaker 00:
In this matter, what she did was say, well, they all seem to be saying the same thing at this hearing.

[00:09:08] Speaker 00:
But she never really looked to see whether or not what they said was consistent with- But what would have happened had you made it into the two-year period?

[00:09:18] Speaker 01:
Past that one year, now you're in the two-year period.

[00:09:21] Speaker 01:
Would you have received additional training,

[00:09:25] Speaker 01:
Would there be an extended period at which you could try to come within the acceptable metrics?

[00:09:38] Speaker 00:
After the one-year mark, in other words, the next day, I would have fallen under the performance metric that would have actually looked at whether or not I was performing my work in a timely manner, i.e.

[00:09:51] Speaker 00:
under the seven-day benchmark.

[00:09:53] Speaker 00:
It would have started looking to see if I had been

[00:09:55] Speaker 00:
performing my fair share of the work.

[00:09:58] Speaker 00:
But before that one year, none of that applied.

[00:10:01] Speaker 00:
And so at the end of the hearing testimony, Judge the AJ, I was trying to elicit testimony about what would have happened there.

[00:10:13] Speaker 00:
And she acknowledged that the next day, I would have been under a full performance plan.

[00:10:18] Speaker 00:
And all of the protections of an opportunity to perform successfully notice

[00:10:25] Speaker 00:
and the ability to work under that for six to eight months before the agency could assess and say, well, you're not meeting this standard.

[00:10:34] Speaker 00:
What the agency wanted to do here was look at my performance from the day that I was hired, and then based upon that, before they sent me to training, before they provided an accommodation, say, well, you know he's not performing fair share.

[00:10:46] Speaker 00:
The email's over and over and over again.

[00:10:48] Speaker 00:
I feel like Marco Rubio.

[00:10:52] Speaker 00:
My mouth is so dry.

[00:10:56] Speaker 00:
The emails over and over and over again show that they're applying this inapplicable standard to me.

[00:11:02] Speaker 00:
And Bosworth repeatedly told Thompson and Strong that fair share in the DWSI absolutely did not apply to me.

[00:11:11] Speaker 00:
Judge McGraw was cc'd in every one of these emails.

[00:11:16] Speaker 00:
And she never told Bosworth, that's not correct what you're telling Thompson and Strong.

[00:11:22] Speaker 00:
And so what you have is Thompson and Strong

[00:11:25] Speaker 00:
and Dodds, who's the one who has the draft decision at the beginning of the appendix for the respondent, conspire.

[00:11:34] Speaker 00:
They actually discuss changing their rationale to say that I'm not engaging in learning so that they can misapply the DWSI in fair share.

[00:11:47] Speaker 02:
Well, let's just take this from a pragmatic point of view.

[00:11:51] Speaker 02:
I think whenever an employee is in

[00:11:54] Speaker 02:
someone that's been hired is in their probationary period.

[00:11:57] Speaker 02:
The federal manager is trying to assess, can this person, once they're on a full performance plan, perform the work successfully under the performance plan?

[00:12:11] Speaker 02:
And here, if the federal managers were seeing that you were not making the numbers, then they needed to try to project out, well,

[00:12:24] Speaker 02:
would you ever get there once you reached full employee status?

[00:12:29] Speaker 02:
And if they lost confidence that you would be able to perform under that performance plan, then isn't there a problem and a basis for saying, okay, then this isn't the kind of person that we want to keep on the team?

[00:12:46] Speaker 00:
Your Honor, I'm in my rebuttal time.

[00:12:48] Speaker 00:
Do you mind if I go ahead with my answer?

[00:12:51] Speaker 00:
Well, the problem with that presumption is that

[00:12:54] Speaker 00:
when we look at all the other employees in Raleigh-O-Dar, and when we look at all the other employees throughout Region 4, these metrics that they were applying to me, apparently they weren't applying them to other writers, because you have DWSI numbers that are in the teens, the 20s, the 30s, throughout the five years that I was able to obtain the data and FOIA.

[00:13:17] Speaker 00:
You have people that are 50 days, 70 days, 80 days into the seven-day benchmark, and yet

[00:13:25] Speaker 00:
Strong and Thompson admitted in deposition, they're not even sending them emails.

[00:13:30] Speaker 00:
So these metrics that they're saying are so important and that they're roughly applying to me, assuming what your honor says is true, well, that's fine.

[00:13:41] Speaker 00:
We should project and see if an employee is going to work out.

[00:13:45] Speaker 00:
But to apply a different metric to me than what would be applied to all the other employees, to me it seems

[00:13:55] Speaker 00:
not relevant to that determination of whether I'm going to work out in the long run, particularly when my numbers were on the upswing.

[00:14:03] Speaker 00:
And I was writing good decisions.

[00:14:05] Speaker 00:
And I reserve the balance of my time.

[00:14:10] Speaker 05:
Okay.

[00:14:10] Speaker 05:
Thank you.

[00:14:11] Speaker 05:
We'll hear from the government.

[00:14:14] Speaker 05:
We'll save the remainder of your time for rebuttal.

[00:14:19] Speaker 03:
Thank you, Your Honor.

[00:14:20] Speaker 01:
Why was it so important for the agency to remove him within one year?

[00:14:27] Speaker 03:
Well, I think the agency, as with any employee, when an employee is coming towards the end of their probationary period, will look at how that employee is performing.

[00:14:39] Speaker 03:
Of course, the agency was looking at multiple employees at that time, as Mr. McGuffin mentioned.

[00:14:45] Speaker 01:
But there's clearly a focus here to remove this employee within one year.

[00:14:50] Speaker 01:
And why is that?

[00:14:55] Speaker 01:
Why couldn't you have waited a week?

[00:15:00] Speaker 03:
Well, Your Honor, the nature of the probationary period is such that it is a period in which the employee is still being scrutinized much more carefully because greater rights attach at the end of that period.

[00:15:17] Speaker 01:
And I understand that.

[00:15:18] Speaker 01:
And I thought maybe that'd be your answer.

[00:15:21] Speaker 01:
And I just wanted to clarify that because it seems to me

[00:15:24] Speaker 01:
that your answer is, because he's a veteran.

[00:15:27] Speaker 01:
And because he's a veteran, he has this one year period.

[00:15:32] Speaker 01:
And if we don't fire him before the end of that one year period, then he'll have additional benefits.

[00:15:41] Speaker 01:
Or rather, it'll be a bigger burden on the agency to keep him beyond that one year.

[00:15:47] Speaker 01:
Why isn't that a focus and a decision to terminate on the basis of his veteran status?

[00:15:52] Speaker 03:
Well, Your Honor, just in terms of one element of the record, I would like to point out that the agency was thinking about another employee at that same time as well and considering her work.

[00:16:04] Speaker 03:
So even though she had a longer probationary period, however,

[00:16:08] Speaker 03:
That gets to Mr. McGuffin's broadest argument.

[00:16:11] Speaker 05:
But that's exactly the reason the agency decided to put things on hold with Ms.

[00:16:16] Speaker 05:
Banks is because she had a longer probationary period.

[00:16:19] Speaker 05:
I mean, the emails say we have two employees who are not working out.

[00:16:26] Speaker 05:
That's what the email at 225 says.

[00:16:28] Speaker 05:
They're not working out.

[00:16:30] Speaker 05:
At 226, it says neither of them is performing up to the standards we expect.

[00:16:36] Speaker 05:
But then suddenly, there's an email that says, the vet has to be terminated in his first year.

[00:16:41] Speaker 05:
For the other, it's two years.

[00:16:43] Speaker 05:
Don't forget we need time to get these cleared through HQ.

[00:16:46] Speaker 05:
And then all of the emails started focusing on the vet.

[00:16:50] Speaker 05:
And the vet, vet, vet, because you had two years for the other employee.

[00:16:54] Speaker 05:
So you could play out a pack or a...

[00:16:57] Speaker 05:
a performance improvement plan.

[00:16:58] Speaker 05:
I mean, they have about five different acronyms for what I amount to a performance improvement plan in my mind.

[00:17:03] Speaker 05:
So just assume that whatever acronyms you're using, I'm calling it a performance improvement plan.

[00:17:08] Speaker 05:
That's fine.

[00:17:09] Speaker 05:
But you could allow that to play itself out over a reasonable period of time for the other employee because she had two years.

[00:17:15] Speaker 05:
But because this guy was a vet, suddenly everything stopped with regard to Ms.

[00:17:19] Speaker 05:
Banks, and there are a bazillion emails.

[00:17:22] Speaker 05:
We've got to get rid of the vet right away.

[00:17:25] Speaker 05:
Well, your how does that not amount to a USERRA violation?

[00:17:28] Speaker 03:
Well, your honor, it comes down to the issue of whether a shorter probationary period is a USERRA violation.

[00:17:35] Speaker 05:
And as we've argued, it shouldn't be because USERRA was enacted after the different treatment that you applied to Miss Banks and to Mr. McGuffin.

[00:17:47] Speaker 05:
They were both the emails lumped the two of them together initially in all respects.

[00:17:54] Speaker 05:
The first email was, we have two people that are not working out.

[00:17:56] Speaker 05:
What do we do?

[00:17:58] Speaker 05:
The next email was, neither of them is performing up to the standards we expect.

[00:18:03] Speaker 05:
Then, when you're told one's a vet, we stopped paying attention to Mrs. Banks under performance, whatever that may or may not be, and we started focusing exclusively on the vet.

[00:18:15] Speaker 03:
Well, I think there are two parts to that.

[00:18:17] Speaker 03:
One is that the record shows that there was

[00:18:23] Speaker 03:
substantial evidence that Miss Banks didn't really have the sort of problem that Mr. McGuffin was having with performance.

[00:18:30] Speaker 03:
There was testimony that the concern that they had had about her related to the way that she was making requests for leave with her supervisor and there was basically an interpersonal issue going on and that once they counseled her that was quickly resolved.

[00:18:47] Speaker 03:
In addition, the evidence shows that she had

[00:18:51] Speaker 03:
She was performing much, much better along a couple of measures that are discussed about and discussing the record, ways that the agency kept track.

[00:19:01] Speaker 01:
Doesn't the record also show that Mr. McGuff improved his performance when he was put into this training program before the termination happened?

[00:19:13] Speaker 01:
He actually improved, didn't he?

[00:19:15] Speaker 03:
He did improve.

[00:19:16] Speaker 03:
He did not reach the level at which Miss Banks was performing at that time or the other attorney that was high around the same time.

[00:19:23] Speaker 01:
But he wasn't an upward trend.

[00:19:25] Speaker 01:
So he was improving.

[00:19:26] Speaker 03:
It was an upward trend, yes, during that interval.

[00:19:30] Speaker 01:
So when we look at this email, and this is the October 25th email from Kathleen McGraw, it says,

[00:19:41] Speaker 01:
The veteran has to be terminated in his first year.

[00:19:44] Speaker 01:
And then it goes on.

[00:19:45] Speaker 01:
And for the others, two years.

[00:19:47] Speaker 01:
Don't forget, we also need to get cleared.

[00:19:49] Speaker 01:
The veteran has to be terminated in his first year.

[00:19:52] Speaker 01:
It seems to me that these emails march on to where the termination decision changes from let's terminate him because he's underperforming to let's terminate him now because if he gets beyond another year,

[00:20:08] Speaker 01:
we the agency are going to have a greater administrative burden.

[00:20:13] Speaker 01:
And that is veteran-focused, and that's the use of the violation, isn't it?

[00:20:18] Speaker 03:
Well, no, Your Honor.

[00:20:19] Speaker 03:
As we've argued, you know, what the agency... First of all, what the agency is doing there is just looking at what the probationary period is.

[00:20:27] Speaker 03:
In those emails where it's talking about his veteran status, it's because it's connected to the probationary period.

[00:20:33] Speaker 01:
Let me ask, why does it matter?

[00:20:34] Speaker 01:
Why does it matter whether he's got one year or the two years?

[00:20:37] Speaker 03:
Well, why does it matter?

[00:20:39] Speaker 03:
I mean, it's something that when individuals in the federal service are having performance issues and their supervisors talk to HR and say, we're concerned that this person is having a performance issue, that's the kind of information that HR will give them in terms of what

[00:21:03] Speaker 01:
People with performing issues get fired in the second year, third year, 25 years later.

[00:21:11] Speaker 01:
I mean, we get those cases.

[00:21:13] Speaker 01:
People with poor performance get fired at all the different stages that exist at the agency.

[00:21:22] Speaker 01:
But the focus here was to fire this veteran within one year, precisely because he was a veteran.

[00:21:29] Speaker 03:
Well, Your Honor,

[00:21:31] Speaker 03:
There are e-mails that show that the agency was cognizant of the performance period, but it is not, it's not, it doesn't show animus towards veterans to be aware of what the performance period is, and that the performance, the shorter probationary period is permitted by USERRA.

[00:21:52] Speaker 03:
USERRA was enacted when that probationary period was in place.

[00:21:55] Speaker 01:
And so if it had intended to... Kennedy That's a benefit for the veteran.

[00:21:59] Speaker 01:
And during that one year,

[00:22:01] Speaker 01:
That's a benefit for the veteran.

[00:22:03] Speaker 01:
The veteran can also appeal to the board.

[00:22:05] Speaker 01:
But if the veteran goes into the second year, then the veteran acquires additional rights, additional benefits.

[00:22:14] Speaker 01:
And it's those benefits that it seems to me the agency's trying to avoid.

[00:22:19] Speaker 01:
Because if you fire him later, then your burden is greater.

[00:22:23] Speaker 01:
It'll be a bigger problem on the agency to fire him then.

[00:22:27] Speaker 01:
At that point, it seems to me that the decision of fire

[00:22:30] Speaker 01:
is focused on his veteran status?

[00:22:34] Speaker 03:
Well, the decision, the managers were considering what the probationary periods were, because that's something you do if you're having performance problems with.

[00:22:45] Speaker 01:
Let me ask you this question.

[00:22:46] Speaker 01:
So there's two comparators that were raised, correct?

[00:22:51] Speaker 01:
Two other individuals.

[00:22:53] Speaker 03:
Well, there were Mr. Von Oyen and Ms.

[00:22:58] Speaker 03:
Cade.

[00:23:01] Speaker 03:
There were two people in another office that were also fired, but there are also two people in his own office that were retained.

[00:23:08] Speaker 01:
So I'm not sure which one the court was.

[00:23:09] Speaker 01:
Well, the ones that were fired.

[00:23:11] Speaker 01:
The ones that were fired, yes.

[00:23:13] Speaker 01:
And they were put forward as evidence that Ms.

[00:23:17] Speaker 01:
McGraw would have been fired regardless of his veteran status.

[00:23:20] Speaker 01:
They said, here's two other people that we fired close to the same period of time and for that same reason.

[00:23:27] Speaker 03:
That's correct, Your Honor.

[00:23:29] Speaker 01:
Neither of those individuals are veterans, correct?

[00:23:32] Speaker 03:
That's right, Your Honor.

[00:23:34] Speaker 01:
Okay.

[00:23:34] Speaker 01:
And both of those individuals, one was fired in the 15-month period and the other in the 13-month period.

[00:23:41] Speaker 01:
That's exactly right, Your Honor.

[00:23:43] Speaker 01:
You all didn't come up with firing a veteran within that one-year period, did you?

[00:23:49] Speaker 01:
I'm sorry?

[00:23:50] Speaker 01:
There was no comparator that was offered that had been fired within that one-year period.

[00:23:58] Speaker 03:
not exactly within the one-year period, but there were several, I mean, we do see in the record several non-veterans being looked at in that, at that period.

[00:24:08] Speaker 03:
And that those two individuals were fired shortly after the one-year period, that they considered whether Miss Banks was having issues around the time Mr. McGuffin, they were considering Mr. McGuffin's performance.

[00:24:22] Speaker 03:
in his own office, and then they considered those other two in another office at a slightly later point.

[00:24:27] Speaker 05:
I have two concerns about this.

[00:24:30] Speaker 05:
My first concern, which I'd like your thoughts on, are it seems to me that training period, PIP, whatever, I'll stick with PIP.

[00:24:37] Speaker 05:
The PIP period seems entirely pro forma based on the emails.

[00:24:42] Speaker 05:
The emails are, well, we've got to hurry up and fire him, we've got to hurry up, we've got to leave time for HQ.

[00:24:48] Speaker 05:
First there's talk about putting him on PACs or these longer

[00:24:51] Speaker 05:
Performance plans that would give him a chance to demonstrate that he's meeting the standards And then it was suddenly reduced to we'll just give him two weeks because we've got to hurry this up Well, just give him two weeks doesn't sound like there is any legitimate Desire behind it to see him improve help him improve recognize his improvement These emails read like that training program was entirely pro forma.

[00:25:19] Speaker 05:
That's the way they read

[00:25:20] Speaker 05:
And then when you combine that with the fact that the standard is, is he demonstrating the capacity to learn?

[00:25:27] Speaker 05:
And when during that three-week training period, it was supposed to be four weeks, but by the way, they already wrote the notice of removal of the three-week period.

[00:25:35] Speaker 05:
So they were lining their ducks up before the four-week period even expired because four weeks was the D-day, right?

[00:25:41] Speaker 05:
So three weeks into the period, he was operating at 80%.

[00:25:46] Speaker 05:
His prior statistics have been 62, 37, 44, 13, 36, 40, 55, 63, and 46.

[00:25:52] Speaker 05:
So during the training period when he was getting this more personalized service, which is the whole point of a PIP, to put someone on a program and help see if they're capable of improving, he improved dramatically.

[00:26:05] Speaker 05:
His highest achievement number prior to that in any month had been 63%.

[00:26:10] Speaker 05:
And during the PIP, the training program, he achieved 80%.

[00:26:16] Speaker 05:
And if the standard is capable of learning, I don't understand.

[00:26:22] Speaker 03:
I'm confused.

[00:26:25] Speaker 03:
Well, Your Honor, I mean, the issue here is really whether the agency would have fired somebody

[00:26:34] Speaker 03:
who only managed to get to 80%.

[00:26:37] Speaker 05:
Can you see why, in my view?

[00:26:40] Speaker 05:
Well, first of all, they managed to get to 80% at the three-week mark, because they already drafted the notice of removal.

[00:26:44] Speaker 05:
They didn't even wait out the entire four-week period.

[00:26:47] Speaker 05:
They made their decision three weeks into it.

[00:26:50] Speaker 03:
Well, I don't think that early drafting to prepare for a possibility necessarily shows that the decision was made.

[00:26:58] Speaker 05:
Also, if you look... You don't think these emails showed the decision was made?

[00:27:02] Speaker 05:
Don't you remember the emails?

[00:27:04] Speaker 05:
issue the notice yet we still have to have approval from Falls Church there were three emails because Mr. Thompson was chomping at the bidder to issue the notice of removal and and he kept having to be put on hold don't issue it yet we got to get approval we've got to get approval you don't think those emails indicate the decision was made in advance of the end of the PIP period?

[00:27:23] Speaker 03:
Well the record certainly shows that there were you know mixed feelings but overall a desire to give Mr. McGuffin

[00:27:31] Speaker 03:
That's what I don't see.

[00:27:33] Speaker 03:
I don't see any evidence in this record of a desire to give Mr. McGuffin a chance.

[00:27:36] Speaker 05:
Show me any email that shows anything that shows a desire to give Mr. McGuffin a chance.

[00:27:41] Speaker 03:
Well, if you look back at his initial performance evaluation, you know, it says his work is really, it's really not acceptable how much work he's doing.

[00:27:55] Speaker 03:
But they bring him successful and they start making inquiries and they let him keep his mentor.

[00:28:01] Speaker 05:
I agree with you that his performance could be viewed as completely unacceptable.

[00:28:07] Speaker 05:
And I don't have a problem with his supervisors having thought that when they said, we've got two people that aren't meeting the standards that we expect.

[00:28:17] Speaker 05:
The problem is with how it got handled from that point forward, it doesn't seem to me

[00:28:23] Speaker 05:
that there was any legitimate opportunity for him to demonstrate he was capable of meeting the learning standard thereafter, seems like the decision was made.

[00:28:32] Speaker 05:
And it wasn't made from his banks or other people, because there was a longer runway on those employments.

[00:28:38] Speaker 05:
And that's the problem.

[00:28:39] Speaker 05:
This looks an awful lot like you decided to hurry up, fire a veteran, not actually give them a true pip based on the emails, because he was a veteran and had a one-year period.

[00:28:50] Speaker 05:
and you didn't want additional rights to attach, so we're not even going to give him a chance to actually demonstrate he's capable of learning.

[00:28:55] Speaker 03:
Well, and to be clear, a PIP wasn't required.

[00:28:58] Speaker 03:
So the fact that the agency decided to use a PIP alone shows that the agency was at least trying to give him an opportunity.

[00:29:09] Speaker 03:
In addition, during that period between when

[00:29:17] Speaker 03:
The record shows that there were concerns at the time of his performance evaluation based on the comments in that evaluation.

[00:29:24] Speaker 03:
He was allowed to continue working with a mentor.

[00:29:28] Speaker 03:
The agency tried to

[00:29:31] Speaker 03:
you know, manage his assignments differently and instead of just giving him one a day, all kinds of assignments in a lump, you know, they would try to basically organize him, like this is what you do today and then tell us at the end of the day if you're having trouble.

[00:29:45] Speaker 03:
I mean, at that point, I believe that was on the PIP.

[00:29:48] Speaker 03:
Email us at the end of the day if you can't get it done and explain what's going on.

[00:29:54] Speaker 03:
But he kept his mentor in the office much longer than the other new hires, Ms.

[00:30:00] Speaker 03:
Banks and Ms.

[00:30:00] Speaker 03:
Brewer,

[00:30:01] Speaker 03:
And that was actually one of the agency's concerns is that he wasn't progressing towards independent work, which is one of the things that he was supposed to be showing he was progressing towards.

[00:30:13] Speaker 03:
There's testimony for that by Mr. Thompson.

[00:30:16] Speaker 05:
I know.

[00:30:16] Speaker 05:
I know your time is up.

[00:30:17] Speaker 05:
Can I ask one more question and then I think DeGiorno might have one because he's looking like he wants to ask another question.

[00:30:23] Speaker 05:
My last question for you is, did the agency, in deciding to terminate this individual, apply the right standard that should be applied to him

[00:30:30] Speaker 05:
Namely, it seems to me the right standard, and correct me if I'm wrong, should be a learning standard as opposed to a fair share standard.

[00:30:39] Speaker 05:
Because all of the documents were generated originally with regard to removal according to a fair share standard, which if I understand it right, is the standard that would normally apply at the end of the two-year period.

[00:30:51] Speaker 05:
That there is a training period, you know, one year, two years, right, and that there's a higher standard

[00:30:58] Speaker 05:
that you apply to an employee at the end of the two-year period to assess whether they're capable of doing their job than the standard you would apply at the end of one-year period.

[00:31:07] Speaker 03:
Am I right about this?

[00:31:08] Speaker 03:
Yes, Your Honor.

[00:31:09] Speaker 03:
I think there was some confused use of that terminology in his performance evaluation.

[00:31:15] Speaker 03:
And then there was later testimony in the record where the manager, and I think it was Mr. Thompson, although it could be Mr. Strong, explained that he meant

[00:31:27] Speaker 03:
you know, progressing towards that goal of being able to handle your fair share and that Mr. McGuffin was not progressing towards being able to handle his fair share and that he was not working independently and that that was the concern.

[00:31:44] Speaker 03:
Although he did use the wrong terminology at one point.

[00:31:48] Speaker 05:
Does the evidence bear out that?

[00:31:50] Speaker 05:
Do you think there's substantial evidence for that given, like I quoted you all the percentages, during the training period he clearly had a pretty substantial increase in productivity?

[00:32:01] Speaker 05:
Do you think that the record bears out or provides substantial evidence for a fact finding that despite that he still wasn't demonstrating that he was working towards that?

[00:32:15] Speaker 03:
The agency, yes, I think the agency still had concerns.

[00:32:19] Speaker 03:
He still, at his best, was performing well below the other attorneys he had hired at the same time.

[00:32:25] Speaker 05:
But wouldn't they have, if he had a two-year period, wouldn't they have put him on a little longer of a runway, like they did with Ms.

[00:32:33] Speaker 05:
Banks or other employees?

[00:32:34] Speaker 03:
I don't know, Your Honor.

[00:32:35] Speaker 03:
I mean, they didn't do that with Ms.

[00:32:37] Speaker 03:
Banks.

[00:32:39] Speaker 03:
In addition, as I think the Court mentioned earlier,

[00:32:45] Speaker 03:
You know, the administrative judge made credibility determinations and fact findings that the agency would have treated a non-veteran in the same manner under the circumstances.

[00:32:59] Speaker 03:
And Mr. McGuffin has not come up with any sort of evidence to overcome

[00:33:06] Speaker 05:
you know, this sort of credibility... Except that none of the emails actually support that testimony at all and in fact all of the emails directly contradict it.

[00:33:15] Speaker 05:
I mean this is the worst email I've ever seen.

[00:33:17] Speaker 05:
We've got to fire the vet within a year.

[00:33:19] Speaker 02:
I mean... Can you explain the story of why, you know, beyond the credibility determinations that you're pointing to, that there's actually record evidence to support the idea that

[00:33:35] Speaker 02:
this particular employee was going to be terminated anyway within a 12-month period.

[00:33:40] Speaker 02:
What's that story?

[00:33:42] Speaker 03:
Well, I mean, if you look at the record, there's both more quantitative information that the agency kept track of about decision writers, and there's more qualitative reports that you see in the record.

[00:33:57] Speaker 03:
In terms of quantitative information,

[00:34:00] Speaker 03:
You know, Mr. McGuffin was writing less than half of the decisions that Ms.

[00:34:04] Speaker 03:
Banks and Ms.

[00:34:05] Speaker 03:
Brewer were writing in the same period of time.

[00:34:08] Speaker 03:
In addition, there's this DWSI index, which kind of incorporates certain assumptions about how much work attorneys or attorney advisors or decision writers could do in a certain amount of time.

[00:34:25] Speaker 03:
And in terms of that measure,

[00:34:28] Speaker 03:
You know, he was completing, you know, kind of in the about half of his work for most of the year.

[00:34:35] Speaker 03:
In addition, there were more qualitative reports.

[00:34:40] Speaker 03:
His supervisors testified about having spoken to administrative judges who were concerned about the quality of his work.

[00:34:47] Speaker 03:
And so all of this indicates that the agency had real performance concerns.

[00:34:52] Speaker 03:
There's not evidence that shows that the other

[00:34:57] Speaker 03:
individuals that were hired at the same time had those concerns, and that explains their different treatment.

[00:35:08] Speaker 04:
Okay.

[00:35:10] Speaker 05:
Thank you, Your Honor.

[00:35:11] Speaker 05:
Mr. McGuffin, we'll restore your three minutes of rebuttal time, just that we went over with the government, but just because we restore it doesn't mean you have to use all of it.

[00:35:23] Speaker 00:
Thank you, Your Honor.

[00:35:25] Speaker 00:
First, I want to address your decision, Your Honor, in LAO, in which, or it wasn't your decision, but you were on the panel of judges in LAO that recognized that MSPB appeal rights are a benefit that have been granted to veterans and that have been withheld from non-preference eligibles.

[00:35:42] Speaker 00:
If you look at the appendix, there's the agency's own personnel policy manual, which clearly refutes this notion that I was in a one-year trial period.

[00:35:54] Speaker 00:
MSPB, when it remanded this case back to the AJ, had already determined that I was serving under a two-year trial period.

[00:36:04] Speaker 00:
The only difference was that after one year, I would obtain these benefits.

[00:36:09] Speaker 00:
If you take counsel, or excuse me, if you take respondent at its word that I was a poor performer who should have been terminated.

[00:36:18] Speaker 02:
Can you help me try to figure out what could be the legal test for a Nusera violation for

[00:36:24] Speaker 02:
a veteran who's in their probationary period of one year before they get these statutory rights, appeal rights.

[00:36:34] Speaker 02:
If a federal manager had just decided after six, seven, eight, nine months this person is not working out, needs to go, and there's no reference or discussion to the person being a veteran, that certainly isn't a Lucero violation, right?

[00:36:50] Speaker 02:
know your honor and what what if the there are emails that say yes if you want where one federal manager tells another yes you can go ahead and terminate the person if you want you think you will but just to let you know the one-year anniversary for this person is in two months and just to let you know in at the one-year anniversary

[00:37:17] Speaker 02:
if you choose to try to terminate someone at that time, then all these appeal rights and protections kick in.

[00:37:27] Speaker 02:
And so it'll be a much more arduous process for you as a federal manager to terminate that person at that point in time.

[00:37:37] Speaker 02:
Under that fact, would that be a necessary violation?

[00:37:43] Speaker 00:
I'm not the judge, but I would suggest that it's not.

[00:37:46] Speaker 00:
I would suggest that it's not conceded.

[00:37:48] Speaker 00:
But here, what we have is two people who are explicitly being compared.

[00:37:55] Speaker 00:
And so had the agency terminated... Right.

[00:37:57] Speaker 02:
Then I'm just going to take the comparator away for the moment.

[00:38:02] Speaker 02:
Let's assume for the moment that the bank's not a comparator or we assume that the bank's issue got resolved inside of one year.

[00:38:09] Speaker 02:
So whatever the issue was with banks,

[00:38:13] Speaker 02:
the manager expressed in October had it been resolved before the one-year anniversary.

[00:38:18] Speaker 00:
So I think, Your Honor, that what it would boil down to is whether or not the intention, and that's a factual question, whether the intention was to deny the veteran a benefit of employment based on his veteran status.

[00:38:33] Speaker 00:
So if you're solely looking at this from the perspective of

[00:38:38] Speaker 00:
Am I going to have to do more paperwork to get rid of this poor performer?

[00:38:43] Speaker 00:
Then I wouldn't see how that would be a USERA violation.

[00:38:48] Speaker 00:
But when you take what happened here and you have people contemplating what's easily acknowledged as an employment for a veteran and then upon that acknowledgement proceeding to terminate because of that,

[00:39:05] Speaker 00:
then you have a problem.

[00:39:06] Speaker 00:
Had they fired both of us, everything would be fine.

[00:39:09] Speaker 00:
If I can turn briefly to a timeliness issue that Judge Moore you raised, Mark Thompson admitted in deposition that he had already decided to terminate me by December 18th.

[00:39:24] Speaker 00:
It's in his deposition at page 185, which is in the appendix, but I didn't think I'd need that.

[00:39:29] Speaker 00:
The weekend before Christmas, this guy was a family man on a Saturday,

[00:39:35] Speaker 00:
sent an email to Paula Bosworth with a draft termination letter.

[00:39:40] Speaker 02:
So why isn't that evidence that they would have terminated you anyway, regardless of whether you were a veteran?

[00:39:46] Speaker 02:
Because by month 10, they already decided, your manager decided that you weren't working out.

[00:39:54] Speaker 00:
Because at that point, Paula Bosworth and Judge McGraw had already telegraphed to them that they needed to get a move on on this.

[00:40:03] Speaker 00:
And at that point,

[00:40:04] Speaker 00:
Mr. Strong said, listen, we need to couch this in terms of engaging and learning, go poll some judges, including one who was in on the emails, Judge Dodds, and say that he's not engaging and learning so we can terminate him.

[00:40:19] Speaker 00:
Mark, you go ahead and start working the draft.

[00:40:22] Speaker 00:
And so, again, the timeliness and pretext issue, both of those decisions, the Judge Hall and the Judge Dodds decision, were after December 18th.

[00:40:32] Speaker 00:
One was,

[00:40:34] Speaker 00:
Judge Hall's email was on January 26th when they're already sending drafts down for review.

[00:40:41] Speaker 05:
Okay, Mr. McGuffin, we are well beyond our extra time, so I thank both counsel for their argument.

[00:40:46] Speaker 05:
The case will be taken under submission.