[00:00:16] Speaker 00:
Next case is Elizabeth Summers versus Department of Veterans Affairs, 2018-14-27.

[00:00:48] Speaker 00:
We're ready when you are, Mr. Vogelsang.

[00:01:00] Speaker 01:
Good morning, lawyers.

[00:01:01] Speaker 01:
May it please the court?

[00:01:02] Speaker 01:
I am Michael Vogelsang.

[00:01:04] Speaker 01:
I'm the attorney for the appellant.

[00:01:05] Speaker 03:
Mr. Vogelsang, do you challenge the MSPB's determination as to the second car factor regarding retaliatory animus?

[00:01:15] Speaker 03:
Yes.

[00:01:16] Speaker 03:
Where is that in the blue brief?

[00:01:19] Speaker 01:
It is our opinion that the car factors one and two were merged.

[00:01:23] Speaker 01:
So in the appellant's brief, we do challenge, beginning on page 22, the entirety of the agency's ability to prove by clear and convincing the fact that it could have been.

[00:01:36] Speaker 03:
Where do you mention the second car factor?

[00:01:40] Speaker 01:
The car factor is not specifically mentioned in the briefs.

[00:01:43] Speaker 01:
But if you look at the judge's decision

[00:01:47] Speaker 01:
She merges car factor one and car factor two so our argument on car factor one is a trivial to car factor two and so far she focuses on the strength of the NPSP so you merged one and two in the blue brief at 24 you argue Quote the complaints against ms.

[00:02:13] Speaker 03:
Summers on answering that

[00:02:15] Speaker 03:
were untrue, exaggerated, and taken out of context regarding termination, rendering termination inappropriate.

[00:02:24] Speaker 03:
You don't cite any evidence for that proposition.

[00:02:29] Speaker 03:
Why shouldn't we find the argument waived?

[00:02:32] Speaker 01:
I believe the argument's not waived given the content and language of the decision from the MSPB itself

[00:02:42] Speaker 01:
that the language is one and the same in favor of the car factor two.

[00:02:46] Speaker 01:
It's car factor one.

[00:02:48] Speaker 03:
If we were to consider the evidence, aren't you just asking us to reweigh the evidence already considered by the MSPB as regards one and two?

[00:02:58] Speaker 03:
I'm letting you merge them for purposes of this question.

[00:03:02] Speaker 01:
Well, yes.

[00:03:03] Speaker 01:
And that is part of what the standard review for the Federal Circuit is, is that you are entitled to

[00:03:09] Speaker 01:
determined whether the judge had an abuse of discretion.

[00:03:13] Speaker 03:
That's not reweighing.

[00:03:16] Speaker 01:
Well, the issue here is... It's a highly deferential standard.

[00:03:21] Speaker 01:
Well, yes, but the information provided in the record shows that the judge ignored evidence as well as actually got the facts wrong.

[00:03:30] Speaker 01:
She also misapplied the law, and so these are reviewable decisions.

[00:03:34] Speaker 03:
In the blue brief at 26, note 2,

[00:03:38] Speaker 03:
You argue that the MSPB improperly denied Ms.

[00:03:42] Speaker 03:
Sommer's attempts to introduce post-removal comparator evidence.

[00:03:47] Speaker 03:
What was that evidence?

[00:03:49] Speaker 03:
Where is it?

[00:03:51] Speaker 01:
In terms of where is the evidence in the record?

[00:03:53] Speaker 03:
Yeah, where do you at least make a record of the offer of that evidence?

[00:04:00] Speaker 01:
Yes, that is included in, give me one second.

[00:04:13] Speaker 03:
I've got that.

[00:04:14] Speaker 03:
OK.

[00:04:15] Speaker 03:
What was it?

[00:04:18] Speaker 01:
There were other employees who had complaints about the comparator, the other nurse case manager at the VA.

[00:04:30] Speaker 01:
There were also evidence that the employees who supported Ms.

[00:04:34] Speaker 01:
Summers, who challenged allegations against her, were retaliated after the termination.

[00:04:39] Speaker 03:
The AJ found not only that it was barred,

[00:04:43] Speaker 03:
but that, quote, it is not substantially similar.

[00:04:49] Speaker 03:
Do you argue in the blue brief that the post-removal comparator situation is substantially similar?

[00:04:55] Speaker 03:
And where do you make that argument?

[00:04:57] Speaker 01:
We do not make the argument given the evidence was excluded.

[00:05:01] Speaker 00:
Council, wasn't there substantial evidence for the AJ's conclusion that she would have been removed?

[00:05:11] Speaker 00:
even absent the protective disclosures because of her yelling, bullying, intimidating, demeaning confrontational behavior?

[00:05:22] Speaker 01:
But the evidence, if looking outside just the adjectives and looking at the context of those adjectives, the record shows that the criticisms of Ms.

[00:05:32] Speaker 01:
Summers were the fact that she had 90-minute morning meetings, that she accounted for employees' time,

[00:05:39] Speaker 01:
that she reviewed emails and wanted to be copy on them if they left the department, as well as asking her employees to rehearse presentations.

[00:05:45] Speaker 00:
But this is a factual determination by DAJ that she would have been removed anyway for these reasons.

[00:05:53] Speaker 00:
It's not for us to balance them and look at her excuses.

[00:05:59] Speaker 01:
I do believe that her decision is unsupported by the evidence.

[00:06:04] Speaker 03:
In your answer,

[00:06:05] Speaker 03:
You're saying, if you unplug all the bad things that people said she did, then, hey, there's nothing wrong here.

[00:06:13] Speaker 01:
It's a slight tweak, Your Honor.

[00:06:15] Speaker 01:
It's the fact that the adjectives, the cursory adjectives... Adjective as in, she yelled at me.

[00:06:21] Speaker 03:
Well, that's not an adjective exactly.

[00:06:24] Speaker 03:
Or, she reduced someone to tears.

[00:06:26] Speaker 03:
That's not an adjective exactly.

[00:06:29] Speaker 01:
Well, I guess those claims outside the context in which they were done

[00:06:34] Speaker 01:
removes the support of the evidence, that the substantial evidence does show that, given the context, the situation showed that Ms.

[00:06:42] Speaker 01:
Summers was simply doing her job, managing a department that was delayed by over a year to open.

[00:06:58] Speaker 03:
Do you dispute that seven employees complained about Ms.

[00:07:01] Speaker 03:
Summers on the same day?

[00:07:03] Speaker 01:
I do not dispute that happened.

[00:07:05] Speaker 01:
I dispute that those employees were specifically requested and encouraged and convinced to bring those complaints on that day.

[00:07:14] Speaker 03:
Where is that?

[00:07:16] Speaker 01:
That is in the judge's decision is... That they were convinced to do it?

[00:07:22] Speaker 01:
Correct.

[00:07:22] Speaker 01:
The judge's decision at appendix 25, the judge does cite to the fact that the supervisor encouraged another subordinate to convince others in the department to come speak.

[00:07:34] Speaker 04:
Well, there's a difference between convincing them to come speak and convincing them to say derogatory things.

[00:07:43] Speaker 04:
And I understood the administrative judge to have been saying that they were encouraged to report the derogatory things that they felt.

[00:07:55] Speaker 04:
That is true.

[00:07:55] Speaker 04:
Is that a fair characterization?

[00:07:57] Speaker 04:
Correct.

[00:07:59] Speaker 01:
But the same discriminatory retaliator, excuse me in this case,

[00:08:03] Speaker 01:
did not do the same encouragement of our named comparator who had complaints against her over the span of 10 months.

[00:08:10] Speaker 03:
The record provides written signed statements from approximately 10 employees about your client.

[00:08:18] Speaker 03:
Is there evidence on the record about how many written complaints were made about the alleged comparator?

[00:08:25] Speaker 01:
No, Your Honor, but most of those complaints were verbal.

[00:08:29] Speaker 04:
How many people did

[00:08:31] Speaker 04:
Ms.

[00:08:32] Speaker 04:
Summers supervised in the course of her work?

[00:08:35] Speaker 04:
I mean, at any given time?

[00:08:36] Speaker 01:
At any given time, I believe the estimate was between 10 to 15.

[00:08:41] Speaker 01:
So it was actually, it was half or less than half of her direct reports who raised the complaints.

[00:08:47] Speaker 01:
So it didn't change over time.

[00:08:50] Speaker 03:
Wait a minute.

[00:08:50] Speaker 01:
10 to 15, and 10 of them, you have 10 written statements?

[00:08:53] Speaker 01:
Not all 10 of the statements were from her direct reports.

[00:08:57] Speaker 03:
I do believe that... You mean she was mean to people to whom she

[00:09:01] Speaker 03:
who didn't directly report?

[00:09:03] Speaker 01:
Well, the accusations in the record are she acted with urgency, because the surgical center was delayed, and it was the context of the protective disclosures was trying to avoid that delay.

[00:09:16] Speaker 01:
So her urgency, as the record says, it was her acting with an urgency, wanting to get the center open, the surgical center, excuse me, open, was what the record shows maybe rubbed people the wrong way.

[00:09:32] Speaker 03:
In the gray brief at 14, you argue that the MSPB improperly based its decision that the complaints against Summers were more serious than those against the comparator upon the opinion of a named retaliator and then the name of that person.

[00:09:51] Speaker 03:
Is it your position that it is improper for the MSPB to rely on evidence from a named retaliator?

[00:09:57] Speaker 03:
And if so, what's your support authority for that?

[00:10:01] Speaker 01:
Well, the argument is it has to be taken maybe with the proverbial grain of salt.

[00:10:06] Speaker 03:
So it's a weight of the evidence.

[00:10:07] Speaker 01:
It is one of the evidence.

[00:10:08] Speaker 01:
It is also given the fact that the judge actually stated... But we've already discussed the weight of the evidence question with you.

[00:10:18] Speaker 01:
Correct.

[00:10:19] Speaker 01:
But in terms of how the judge made a determination, she found that the retaliator had a reasonable belief that the accusations against Ms.

[00:10:28] Speaker 01:
Summers were true.

[00:10:29] Speaker 01:
That's not clear and convincing.

[00:10:30] Speaker 01:
And so that's where the appellant gets on the shifting of the burden and shifting of the weight, is that the appellant now has to disprove by clear and convincing the agency's legitimate business reason, whereas the agency only has to have a reasonable belief of legitimate reason, flipping the burden of the Municipal Protection Act on its proverbial head.

[00:10:55] Speaker 01:
And this is at Appendix 33, which is part of Judge's decision, where she finds that the record supports the reasonableness of the supervisor's belief.

[00:11:08] Speaker 01:
This also does relate to?

[00:11:10] Speaker 04:
Well, the way I would think you would factor clear and convincing evidence into that assessment is to say that there is clear and convincing evidence

[00:11:24] Speaker 04:
supporting the reasonableness of the belief, right?

[00:11:28] Speaker 04:
Isn't that the way one would articulate that if you brought clear and convincing evidence from the beginning of the opinion when the AJ makes it clear that she understands that this is the standard to bear on a particular piece of critical piece of evidence?

[00:11:43] Speaker 01:
I wouldn't challenge you on that if that's what the decision was clear and what was done.

[00:11:48] Speaker 03:
Would you disagree that the MSPB after

[00:11:55] Speaker 03:
confirming that the VA had met its burden of proof, then considered whether any of your client's evidence cut against that conclusion?

[00:12:10] Speaker 03:
Isn't that what they did?

[00:12:12] Speaker 01:
I do want to answer a question.

[00:12:13] Speaker 01:
I want to note that I'm running into my rebuttal time, so I do want to answer the question.

[00:12:17] Speaker 00:
You can answer it.

[00:12:18] Speaker 01:
Please answer the question.

[00:12:20] Speaker 01:
The appellant's position is that, yes, the agency should consider evidence that would challenge the agency's position.

[00:12:28] Speaker 01:
The concern appellant has in this case is the judge did not consider all of the evidence, only the evidence that she felt supported the agency and then discounted some other evidence.

[00:12:39] Speaker 03:
But that's not answering your burden of proof argument.

[00:12:41] Speaker 01:
That's where I was directing you.

[00:12:43] Speaker 01:
Well, for the burden of proof is for the agency to meet its clear and convincing standard,

[00:12:47] Speaker 01:
Out of prompter, the judge must review all the evidence.

[00:12:50] Speaker 01:
Otherwise, it is the net picking of particular facts from the record.

[00:12:55] Speaker 01:
I understand your argument.

[00:12:58] Speaker 01:
I would like to reserve some time for rebuttal.

[00:13:01] Speaker 00:
We will save you time.

[00:13:03] Speaker 01:
Thank you very much.

[00:13:08] Speaker 00:
Mr. Pailkey.

[00:13:13] Speaker 02:
Good morning.

[00:13:14] Speaker 02:
May it please the court.

[00:13:15] Speaker 02:
But this court's review of the MSPB's decision is cabin to whether or not substantial evidence supports the MSPB's finding of clear and convincing evidence in support of the agency's decision.

[00:13:28] Speaker 02:
And I think that when the court considers the really exemplary administrative judge opinion, a 40-page opinion here, it is clear that that hurdle is met.

[00:13:39] Speaker 02:
The substantial evidence hurdle is met.

[00:13:42] Speaker 02:
The administrative judge walked through.

[00:13:44] Speaker 00:
What's the key finding that she would have been removed anyway?

[00:13:47] Speaker 02:
I think that's correct, Your Honor.

[00:13:49] Speaker 02:
The standard gets stated in lots of technical ways.

[00:13:52] Speaker 02:
But when one looks at the jurisprudence, it usually comes down to that fundamental practical question.

[00:13:57] Speaker 02:
This happened anyway.

[00:13:59] Speaker 02:
And here, when you go through the administrative judge's process, and really that opinion enables a reader to walk through the process with the administrative judge, she considers all of the evidence.

[00:14:10] Speaker 02:
She applies the standards.

[00:14:12] Speaker 02:
She reaches conclusions about what the evidence that the agency presented showed.

[00:14:16] Speaker 02:
She questions and asks questions about some of the allegations that Ms.

[00:14:20] Speaker 02:
Summers raises about people conspiring against her, about people lying.

[00:14:24] Speaker 02:
She considers witnesses that were presented on her behalf.

[00:14:27] Speaker 02:
She goes through their testimony.

[00:14:30] Speaker 02:
She looks at the presentation of the Nurse Professional Standards Board.

[00:14:34] Speaker 02:
Were all the witnesses presented there?

[00:14:36] Speaker 02:
Did Ms.

[00:14:36] Speaker 02:
Summers have an opportunity to present her own witnesses?

[00:14:39] Speaker 02:
And she goes through that process again and again.

[00:14:41] Speaker 02:
She reaches a conclusion under each CAR factor that the agency has carried its burden.

[00:14:46] Speaker 02:
And I think that that showing from the administrative judge, which gathers that evidence together, everything that's in the joint appendix, really pushes us over the line very easily.

[00:14:58] Speaker 02:
And there was some question about CAR factor two, which is not addressed directly in any of the briefings.

[00:15:06] Speaker 02:
But it comes in in shadows and faints in petitioner's briefs.

[00:15:12] Speaker 02:
So there's discussion about retaliation, about conspiracy, about people wanting to act against Ms.

[00:15:18] Speaker 02:
Summers.

[00:15:19] Speaker 02:
And because it's not directly addressed in their blue brief, not a lot of time is spent on it in ours.

[00:15:24] Speaker 02:
But if your honors go through the opinion and check the joint appendix sites that are in the administrative judge's opinion, you can see

[00:15:33] Speaker 02:
the administrative judge's conclusion and supporting testimony about there's just nothing here to support retaliatory animus.

[00:15:39] Speaker 02:
We have a series of protected disclosures that were identified by various witnesses as these are the type of things that happen when you set up a new clinic.

[00:15:47] Speaker 02:
There was things about getting a memorandum of understanding in order, getting some equipment done.

[00:15:52] Speaker 02:
And these were raised and they were addressed.

[00:15:54] Speaker 02:
And then months later,

[00:15:56] Speaker 02:
There's an onslaught of various complaints about the Summers, et cetera.

[00:16:00] Speaker 02:
And the people who make the decision to go through the process, it's not an immediate decision, it's a process of invoking Human Relations Department, of going to the standards board, which is something that falls under VA regulations.

[00:16:13] Speaker 02:
And having the Summers giving her the ability to present her case and defend herself throughout that process,

[00:16:21] Speaker 02:
At each stage, none of the people doing that have any connection to these protected disclosures.

[00:16:26] Speaker 02:
It's just no... And the Administrative Judge says that when she analyzes Carb Factor 2.

[00:16:31] Speaker 02:
There's no finding of animus.

[00:16:32] Speaker 02:
And that comes back in Carb Factor 3, when the Administrative Judge says, look, we have Ms.

[00:16:38] Speaker 02:
Brower, the comparator, who has complaints over a lengthy period of time.

[00:16:42] Speaker 02:
We have an acute situation with Ms.

[00:16:45] Speaker 02:
Sungers, where there was a flood of complaints, not just from her own department, but coming from outside sources as well.

[00:16:51] Speaker 02:
And in her finding that the comparator does not line up or favor Ms.

[00:16:56] Speaker 02:
Summers' argument, the administrative judge concludes almost the last statement of substance in the opinion, that nor is there anything to find that there was a desire to act based on protected disclosure against Ms.

[00:17:10] Speaker 02:
Summers versus Ms.

[00:17:11] Speaker 02:
Broward.

[00:17:12] Speaker 02:
It's just not there.

[00:17:13] Speaker 02:
And given all of the evidence here, and given what I really think is a well reasoned and well supported,

[00:17:20] Speaker 02:
decision from the chief administrative judge, we would ask that this court affirm the MSPB's decision.

[00:17:27] Speaker 04:
You said a little bit earlier that you were indicating that you thought that the evidence just didn't support, I'm sorry, did not support an inference that there was any retaliatory motive here.

[00:17:42] Speaker 04:
But the procedural posture, the findings of the administrative law judge and the procedural posture that we're in,

[00:17:50] Speaker 04:
seemed to me to be to suggest that there was a contribution of the retaliatory motive to the firing decision.

[00:18:00] Speaker 04:
I mean, that's what, at page 24 of the administrative judge's opinion, she says that, according to me, I find that appellant's protected disclosures were a contributory factor in her removal.

[00:18:14] Speaker 04:
So I think you can't really go back against that finding, can you?

[00:18:19] Speaker 02:
Yes, Your Honor, the distinction I was trying to make, I apologize for not being clear on it.

[00:18:22] Speaker 02:
The Ministry of Judge applied the standards, knowledge, timing tests, and other things to show that the disclosures and the adverse employment actions, there was a connection.

[00:18:33] Speaker 02:
But on the question of animus, on something that, was there some sort of retaliatory motive here?

[00:18:39] Speaker 02:
Would you look specifically at that?

[00:18:42] Speaker 04:
You distinguish between a retaliatory motive versus a contributory factor, a contributing factor?

[00:18:48] Speaker 04:
Because that seems to me a very fine distinction, if one at all.

[00:18:52] Speaker 04:
What's the distinction you're attempting to draw here?

[00:18:55] Speaker 02:
The distinction I'm attempting to draw is just in terms of the facts that the administrative judge relied on and that evidence, which is what we're looking at here.

[00:19:05] Speaker 02:
But I think the administrative judge's opinion, when she looks at these charges from Ms.

[00:19:09] Speaker 02:
Summers about people being against her, about people lying, et cetera,

[00:19:14] Speaker 02:
that there are key moments in the decision where the judge explicitly states that there's nothing in the record that shows that any of the people that she's talking about had this desire to act against her purposely, to harm her.

[00:19:32] Speaker 03:
Would you disagree with the AJ where she says,

[00:19:37] Speaker 03:
what Judge Bryson cited, and then she shifts the burden, as is proper, to the agency to say that it would have taken the same action, not withstanding the disclosures.

[00:19:53] Speaker 02:
I agree with the administrative judge on that.

[00:19:55] Speaker 03:
And that's what you're arguing for.

[00:19:57] Speaker 04:
One other question, and it was alluded to in the appellant's argument, I don't think he

[00:20:06] Speaker 04:
I spent a lot of time on it, but I was curious about your response.

[00:20:10] Speaker 04:
The argument that he makes that despite having articulated the correct clear and convincing evidence standard on page 24, that the judge then effectively imposed a burden on the petitioner in places where, for example,

[00:20:30] Speaker 04:
The administrative judge says, I find the appellant has failed to show the witnesses who were provided statements to Ms.

[00:20:37] Speaker 04:
Didier or the NPSB did so because they were influenced to do so or that they conspired to fabricate statements.

[00:20:44] Speaker 04:
He argues that that constitutes a shifting of the burden.

[00:20:48] Speaker 04:
Your comment?

[00:20:49] Speaker 02:
Frankly, Your Honor, I think that's more of an attack on a rhetorical choice on the part of the judge in writing the opinion.

[00:20:55] Speaker 02:
Because I think as a fact finder, that any fact finder

[00:20:59] Speaker 02:
doing the job they're supposed to do properly, is lining up the evidence and questioning and interrogating that evidence.

[00:21:05] Speaker 02:
And part of it is saying, well, I have this mountain of evidence over here, those allegations and other things.

[00:21:10] Speaker 02:
Is there anything else that I need to petition and point to anything, that I'm looking at anything wrong, that there's something else I need to consider?

[00:21:16] Speaker 02:
Is there anything else here to pull back from that?

[00:21:19] Speaker 03:
Well, the question is, is there evidence that makes it not clear and convincing?

[00:21:24] Speaker 03:
That's what they're asking.

[00:21:25] Speaker 02:
Exactly.

[00:21:26] Speaker 02:
And I think that the attack the petitioner raises is more about the ordering of that.

[00:21:30] Speaker 02:
It's just that the way the opinion was written, she, the administrative judge, goes through all the evidence and says, well, let's see.

[00:21:39] Speaker 02:
Is there anything else supporting these charges of lying?

[00:21:42] Speaker 02:
It said, is there anything else here that I need to take into consideration and determine that there wasn't in every instance?

[00:21:49] Speaker 04:
Presumably the only party, presumably the government would not

[00:21:55] Speaker 04:
be expected to negate evidence of conspiracy and fabrication in the absence of a claim to that effect, I would suppose.

[00:22:05] Speaker 04:
I think that's true, too, Your Honor.

[00:22:07] Speaker 04:
It seems kind of a natural progression of proof.

[00:22:11] Speaker 04:
Maybe this is what you're saying, a natural progression of proof that the government lays out its case.

[00:22:15] Speaker 04:
And then if the appellant feels that there's some other reason that needs to be brought to the attention of the fact finder as to why this

[00:22:25] Speaker 04:
this happened, then it's kind of on the appellant to raise it, at least, even though the ultimate burden never shifts.

[00:22:34] Speaker 02:
Exactly.

[00:22:34] Speaker 02:
And I think that the term natural progression is exactly how I would put it.

[00:22:40] Speaker 02:
It's a fact finder going through the process of reviewing the fact.

[00:22:44] Speaker 03:
As a matter of due process, if a party puts on evidence which rises to clear and convincing, the other party gets to say, well, here's evidence that makes it not.

[00:22:56] Speaker 02:
Unless there are any other questions.

[00:22:58] Speaker 02:
Thank you.

[00:22:59] Speaker 00:
Thank you, Council.

[00:23:00] Speaker 00:
Mr. Global Sang has some rebuttal time.

[00:23:14] Speaker 01:
If I may make an indulgence for a summary statement.

[00:23:17] Speaker 01:
Appellant has proffered that the record shows that the NPSB was supplied with statements from named retaliators

[00:23:25] Speaker 01:
based on written statements, not individuals themselves.

[00:23:29] Speaker 01:
The record shows that the context of the complaints about Ms.

[00:23:32] Speaker 01:
Summers... Run that by me again?

[00:23:35] Speaker 01:
Sure.

[00:23:35] Speaker 01:
The only people who testified during the NPSB were the named retaliators and the named comparator with Ms.

[00:23:45] Speaker 01:
Summers and not the actual complaining subordinates themselves.

[00:23:49] Speaker 03:
Are you saying that the complaints are not evidence?

[00:23:53] Speaker 01:
No, I'm just saying that the direct evidence from the horse's mouth, if you will, was not presented to the NPSB.

[00:23:59] Speaker 01:
And that so there was a filter, a bottleneck, if you will, of the information presented to the NPSB by the neighbor townhouse.

[00:24:06] Speaker 03:
You're arguing weight of evidence, right?

[00:24:10] Speaker 01:
Yes.

[00:24:12] Speaker 01:
The fact that there were more complaints against Ms.

[00:24:14] Speaker 01:
Summers versus her comparator that was claimed to be acute is directly related to the fact that those complaints were

[00:24:21] Speaker 01:
solicited and requested by the named retaliator.

[00:24:25] Speaker 01:
The same event that I mentioned before was that the retaliator, the supervisor, encouraged the subordinate to ask people to come to her.

[00:24:37] Speaker 01:
And they came to her.

[00:24:38] Speaker 01:
Because there was that request created the number of the complaints.

[00:24:42] Speaker 01:
So the acuteness, if you will, was arbitrarily created.

[00:24:48] Speaker 01:
Even one of the named

[00:24:50] Speaker 01:
persons who gave a statement said that her relationship with Ms.

[00:24:54] Speaker 01:
Summers was, quote, the same as any boss-employee relationship, unquote.

[00:24:58] Speaker 01:
That's not rising to the level of... What else did she say?

[00:25:02] Speaker 01:
She discussed her discomfort with cross-training, which was part of her duties.

[00:25:09] Speaker 01:
And this is at appendix page 1530, which relates to the boss-employee relationship between the subordinate.

[00:25:18] Speaker 01:
And I don't want to sidestep the clear difference between the name comparator and Ms.

[00:25:23] Speaker 01:
Summers.

[00:25:24] Speaker 01:
The complaints about the comparator related to patient care, the provision of morphine to an oncology patient that made nurses uncomfortable.

[00:25:34] Speaker 01:
At least two nurses under the comparator left the VA because of the comparator, and there was a more than twice industry standard of turnover in the comparator's department.

[00:25:45] Speaker 01:
This was not the case with Ms.

[00:25:47] Speaker 01:
Summers.

[00:25:48] Speaker 01:
And you can find this testimony at appendix page 39 in the judge's decision, as well as in appendix page 1337.

[00:25:57] Speaker 04:
Were the events involving the comparator prior to the termination of Ms.

[00:26:07] Speaker 04:
Summers or after?

[00:26:09] Speaker 01:
Prior and simultaneous.

[00:26:11] Speaker 01:
The complaints regarding the comparator span about from the same time period as the termination

[00:26:17] Speaker 01:
going backward 10 months.

[00:26:19] Speaker 01:
They may have continued after, but that evidence was excluded.

[00:26:22] Speaker 01:
Whereas the time period between the complaints about Ms.

[00:26:26] Speaker 01:
Summers and her referral to the NPSB was one month.

[00:26:30] Speaker 01:
So another comparison is despite 10 months of complaints regarding the comparator, there's no referral to the NPSB.

[00:26:38] Speaker 01:
After one month of notice of complaints, Ms.

[00:26:41] Speaker 01:
Summers was referred to the NPSB.

[00:26:44] Speaker 01:
The substance of the complaints

[00:26:46] Speaker 01:
was actually not the same, because the complaints against the comparator were worse.

[00:26:52] Speaker 01:
And I have 40 seconds that I just wanted to state that one.

[00:26:56] Speaker 00:
Well, you don't have 40 seconds, but we'll give you one last statement.

[00:27:00] Speaker 00:
That's a red light, not a yellow.

[00:27:02] Speaker 01:
It's moving up into your red light.

[00:27:04] Speaker 00:
I do apologize.

[00:27:04] Speaker 01:
My one last statement, and I do apologize, is the judge does get the facts wrong when she states on Appendix 39 that the supervisor handled the complaints

[00:27:16] Speaker 01:
against Ms.

[00:27:17] Speaker 01:
Sommers, similar to that of the name comparator.

[00:27:20] Speaker 01:
That is not the case.

[00:27:21] Speaker 01:
The name comparator at appendix 1468 to 1469 clearly testified she did not behave in the same manner toward the comparator as she did to Ms.

[00:27:31] Speaker 01:
Sommers.

[00:27:31] Speaker 01:
I do thank you for the extra one minute and 20 seconds you gave me.

[00:27:35] Speaker 00:
Thank you, counsel.

[00:27:36] Speaker 00:
We'll take the case under review.

[00:27:39] Speaker 00:
All rise.

[00:27:41] Speaker 00:
Your Honor, the court is adjourned until tomorrow morning, 8 o'clock AM.