[00:00:00] Speaker 02: All right. [00:00:01] Speaker 02: Our last argument then for the morning is docket number 24-1456, Soto versus Department of Veterans Affairs. [00:00:12] Speaker 02: Mr. Soto, I believe you've reserved five minutes for your rebuttal, right? [00:00:17] Speaker 04: That is correct, sir. [00:00:19] Speaker 02: OK. [00:00:20] Speaker 02: Please begin whenever you're ready. [00:00:23] Speaker 04: Good morning, Your Honors. [00:00:24] Speaker 04: Amid the briefs, today, [00:00:27] Speaker 04: I seek to briefly highlight this case repeats an analytical error corrected in Whitmore versus Department of Labor, where the board allowed the agency's removal narrative to eclipse the whistleblower context, misapplying the clear and convincing evidence standard before jumping into car, car, [00:00:49] Speaker 04: Um, I note this is a 23 02 B nine five USC 23 02 P nine issue involving assistance to others, uh, which can encompass more than just signing grievances, which was the emphasis at motive to call or car to determination. [00:01:09] Speaker 04: And I, please, I excuse my New York accent, uh, turning to call one, the strength of the agency's evidence, the board accepted, uh, [00:01:21] Speaker 04: In terms of CAR 1, let me just put it this way, that the CAR 1 is not about the strength of the charges. [00:01:26] Speaker 04: And I'll just get to the nitty-gritty here. [00:01:27] Speaker 04: Whether the hostilities amid the protected activity contributed to the charges undermining the WPEA standard, that's important, especially amid inconsistencies shown in the record. [00:01:39] Speaker 04: It's in the briefs. [00:01:40] Speaker 04: and less protections for annuitants that such a review could be important. [00:01:44] Speaker 04: I'm not asking for extra protections for annuitants. [00:01:47] Speaker 04: I'm simply asking, well, why are charges being brought? [00:01:51] Speaker 04: And the timing is very suspect after the duly noted email from the director, after which all of the negative issues sort of flowed. [00:02:01] Speaker 04: And in essence, what we have here is an issue where [00:02:06] Speaker 04: And I hate to put it in terms of abusive discretion, but anyone has discretion to bring charges. [00:02:11] Speaker 04: So why do these exist only after the duly noted email and after protected activity? [00:02:16] Speaker 04: And I think that's the emphasis of CAR 1 in terms of Whitmore trying to say that the strength of the charges don't really matter is whether the hostilities amid the protected activity contribute to the charges. [00:02:27] Speaker 04: Jumping to, and the one example, and please forgive me for jumping back and forth a little nervous the first time. [00:02:34] Speaker 04: at the circuit. [00:02:36] Speaker 04: The issue of shifting, usually it's about shifting rationale. [00:02:41] Speaker 04: And we look at people that they shift from one rationale to the other. [00:02:45] Speaker 04: In this case, it's about shifting charges. [00:02:48] Speaker 04: After I testified at Congress, the agency contemporaneously noted the removal was for sick leave abuse. [00:02:57] Speaker 04: That fell apart two months later. [00:02:59] Speaker 04: they're constructing a whole Aspen issue. [00:03:03] Speaker 04: And all the records that are contained in the evidence of record are dated after the removal. [00:03:10] Speaker 04: Just about the ones that the agency argued exist prior to the removal are unclear. [00:03:15] Speaker 04: And that's not the reason they brought up to Congress for the removal. [00:03:18] Speaker 04: They focused on the silicone abuse and that kind of went away. [00:03:23] Speaker 04: Then of course, there's the deviation from the Aspen practice. [00:03:26] Speaker 04: We were allowed to go in front of a local supervisor who actually fixed most of these Aspen errors. [00:03:31] Speaker 04: Nobody's perfect with the Aspen system. [00:03:33] Speaker 04: There's a lot of mistakes. [00:03:34] Speaker 04: It was allowed for 3.5 years. [00:03:36] Speaker 04: It was removed after protected activity. [00:03:39] Speaker 04: Jumping to call two. [00:03:42] Speaker 04: Management leg the petitioner to assistance to others. [00:03:45] Speaker 04: A roadmap of perceived protected activity exists in some of the documents. [00:03:49] Speaker 04: They're actually showing the legalese shows that essentially the petitioner authored a lot of this activity. [00:03:57] Speaker 04: The issue with 2302 B9 is what is assistance. [00:04:03] Speaker 04: Assistance I would believe is more than authoring a grievance or a signature on a grievance amid testimony that there was a lot of assistance [00:04:11] Speaker 04: In terms of many complaints, any grievance can be verbal under 7103 small a number nine. [00:04:19] Speaker 04: A grievance under the statute is anything related to employment. [00:04:23] Speaker 04: Same thing with Whitmore demanded the nature and sensitivity of the disclosure and the potential embarrassment and disruption to be looked at. [00:04:33] Speaker 04: An error, interesting, the prior case was about CUE. [00:04:37] Speaker 04: An error that an employee challenges [00:04:42] Speaker 04: It's usually challenged under a CUE standard. [00:04:45] Speaker 04: It doesn't just affect the individual employee. [00:04:47] Speaker 04: It affects the veteran. [00:04:48] Speaker 04: It affects money going out. [00:04:49] Speaker 04: It affects the VA's quality review process at that regional office. [00:04:54] Speaker 04: So it's more than just a single employee being affected. [00:04:59] Speaker 04: A group grievance involving roughly 200 to 300 employees was ignored. [00:05:04] Speaker 04: That's a major issue because all these 200, 300 employees were claims examiners. [00:05:11] Speaker 04: request for information, what we call RFIs, has a statutory requirement that we have to identify purpose and how it's going to be used. [00:05:21] Speaker 04: I agree with some of what the AJ put down in the board, but there's also an issue about, well, what if in justifying an RFI, [00:05:31] Speaker 04: You're into B8 and B9 territory assisting others or disclosure of protected information. [00:05:36] Speaker 04: We have to identify the agency violated this law and we intend to take action against the agency. [00:05:43] Speaker 04: So that also expands the motive on the call to and then jumping. [00:05:48] Speaker 04: I just want to say wanting in terms of call to one grievance can establish motive and demanding enough motive is the incorrect standard in Burton. [00:06:01] Speaker 04: As to CAR 3, there's one piece of evidence that's not going to change. [00:06:07] Speaker 04: The separation was based on five to 10 comparators. [00:06:10] Speaker 04: The agency testified to this. [00:06:12] Speaker 04: The HR manager testified to this. [00:06:15] Speaker 04: Whitmore says CAR 3 weighs against the agency, that the agency couldn't support it. [00:06:20] Speaker 04: And then the board recasts that with some speculation, as I put in my [00:06:25] Speaker 04: a briefs certainly is an interesting question because the testimony was that the action occurred because of 510 comparators. [00:06:34] Speaker 04: And the lastly on comparators, comparator framework is not just about annuitants. [00:06:39] Speaker 04: It's about how was the petitioner treated differently at work, such as was removing the aspirin review process at the local level contributed to by protected activity? [00:06:51] Speaker 04: And I'll end by saying that this case is intermingling parts treated in isolation amid protected activity, impacting all the car factors. [00:07:01] Speaker 04: As in Whitmore, the board focused on the agency's misconduct narrative. [00:07:06] Speaker 04: And as Whitmore put it, dismissing evidence, a reasonable fact-finder, my credit, is not proper. [00:07:12] Speaker 04: Whitmore stated that when evidence is conflicting or vague, and there's conflicting evidence here noted in the briefs, the agency loses. [00:07:19] Speaker 04: respectfully reversals an order or a remand for proper adjudication consistent with Whitmore and Call. [00:07:25] Speaker 04: Thank you. [00:07:27] Speaker 02: OK, great. [00:07:28] Speaker 02: Just one quick question, Mr. Soto. [00:07:32] Speaker 02: And that is that, as you know, at the Federal Circuit level, we are a court of review, and we are bound to give deference to fact findings made by the board below. [00:07:44] Speaker 02: And so the challenge that you have as the appellant is to establish why [00:07:53] Speaker 02: It was so that the board was somehow unreasonable in its fact findings. [00:08:01] Speaker 02: And let's just take car factor one, for example. [00:08:07] Speaker 02: The AJ concluded and the board upheld that there were multiple different [00:08:16] Speaker 02: issues that went to the basis for why the agency would have removed you. [00:08:24] Speaker 02: So I think that's the challenge that you have and we have as a court in order to overturn that. [00:08:32] Speaker 02: We're not re-evaluating all of these fact questions in the first instance. [00:08:37] Speaker 02: We have to [00:08:38] Speaker 02: really believe that the AJ and the board were just really unreasonable in making the fact findings that they made. [00:08:48] Speaker 04: Understood. [00:08:49] Speaker 04: And that's exactly the issue with call one. [00:08:53] Speaker 04: Why were these issues? [00:08:54] Speaker 04: And some of them are dated. [00:08:55] Speaker 04: There are only three. [00:08:57] Speaker 04: And the sick leave issue disappeared. [00:08:59] Speaker 04: And that was the one that Congress was told was the reason for the removal. [00:09:04] Speaker 04: Why charge something at the end? [00:09:06] Speaker 04: Some of these things lingered for a while. [00:09:08] Speaker 04: The other thing is that amid the hostility, where some of these charges the result of the hostility amid the protected activity, that's also an issue that undermines clear and convincing evidence standard. [00:09:19] Speaker 04: So therefore, were these facts, and the facts are not challenged, but how they were considered against the clear and convincing evidence standard, [00:09:27] Speaker 04: that the judges are supposed to, the board rather, are supposed to consider were they properly weighed in terms of, for example, well, why remove the Aspen matter? [00:09:40] Speaker 04: Why remove that protective feature when everybody gets it and the petitioner got it for three and a half years? [00:09:47] Speaker 04: So what's changed that now he's not due this due process as an annuitant when it was given to him for three and a half years, and it just happens to be after protected activity. [00:09:56] Speaker 04: Um, and then it's the issue of the other two things were issues of time and attendance, which are explained, for example, uh, one person Ingram for the May issue of, uh, the, uh, showing up to work or not properly, uh, showing up to work. [00:10:13] Speaker 04: Ingram was also affected. [00:10:14] Speaker 04: He didn't get notice just like I did not. [00:10:18] Speaker 04: Well, he skates and I put it in there and the director actually admits, and I note the record that. [00:10:25] Speaker 04: Yeah, mistakes were made. [00:10:27] Speaker 04: Communications weren't made. [00:10:28] Speaker 04: And that's the reason why that mistake occurred except for me. [00:10:32] Speaker 04: Then she makes an exception for me. [00:10:34] Speaker 04: And that's not what the facts show in the record. [00:10:37] Speaker 04: Just because the board did fact-finding at the local level doesn't mean that the fact-finding was not an error or contrary to the evidence of record, sorry. [00:10:50] Speaker 02: Okay, thank you. [00:10:51] Speaker 02: Unless there's any questions. [00:10:54] Speaker 02: You're into your rebuttal and we will save your remaining time and we'll now hear from the government. [00:11:32] Speaker 00: I was wondering what... [00:11:41] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:11:43] Speaker 00: In this case, the VA separated Mr. Soto, a reapployed annuitant, after a series of incidents raised legitimate concerns about his integrity and trustworthiness. [00:11:54] Speaker 00: Because substantial evidence supports the administrative judge's determination that the VA would have separated him even in the absence of his protected activity, this Court should affirm the decision of the Board. [00:12:07] Speaker 00: In this appeal, Mr. Soto asked the court to reweigh the evidence considered by the board in its CAR factor analysis and to revisit the administrative judge's credibility determinations. [00:12:20] Speaker 00: Neither of these requests is appropriate. [00:12:22] Speaker 00: On the contrary, the administrative judge's determinations are supported by substantial evidence, as are the credibility determinations. [00:12:32] Speaker 03: Beginning with, let me just jump to car three. [00:12:35] Speaker 03: It does seem like there was comparator evidence in the record and that none of the comparators matched up perfectly because they'd all didn't do the same thing or they all didn't, weren't retired annuitants and the like. [00:12:52] Speaker 03: But of all these various pieces, it looked like nobody [00:12:57] Speaker 03: was removed from their job for the offenses committed here. [00:13:02] Speaker 03: Why isn't that important under car factor three? [00:13:06] Speaker 00: because of the distinctions that your honor mentioned at the very beginning. [00:13:09] Speaker 03: But isn't that really rigid? [00:13:10] Speaker 03: I mean that's a little problematic in terms of how you look at Car Factor 3 because you're just never going to have somebody that lines up on all fours as the same kind of legal position within the agency and I mean in terms of their employment authority and the exact same offenses and the like. [00:13:28] Speaker 03: Is that what we really meant or did we really mean [00:13:31] Speaker 03: Let's look at other employees that have done similar things. [00:13:35] Speaker 03: Did they get the same action taken against them? [00:13:37] Speaker 00: Well, as Your Honor mentioned at the beginning of Your Honor's question, it's not just the conduct, but it's also their status as a Chapter 75 employee is totally different. [00:13:48] Speaker 03: Sure, but I assume you're not arguing that [00:13:54] Speaker 03: that re-employed annuitants have less whistleblower rights because they are at will employees than Title V employees. [00:14:02] Speaker 03: They may not get the same kind of due process protections in terms of getting charges proffered against them and an opportunity to respond and the like, but the agency still has to comply by the WPA and can't remove them if they're in ways that Title V employees wouldn't be removed. [00:14:22] Speaker 00: Absolutely, Your Honor. [00:14:24] Speaker 00: The relevant inquiry here under 1121 is would the agency have done this even absent the protected activity? [00:14:34] Speaker 00: And so certainly why would the agency keep somebody around who has a demonstrated track record of lack of trustworthiness when they don't need to engage in the sort of progressive discipline that the other Title V employees do? [00:14:47] Speaker 00: And so when we look at those other Title V employees, they can't be comparators in this case because, of course, the agency is going to go through the required protections of progressive discipline and not just separation right off the bat. [00:15:00] Speaker 03: Because they have to under the Douglas Factors and various things. [00:15:03] Speaker 00: absolutely that's that's that's right your honor and then of course the second the Douglas factors have no bearing in a whistleblower case not when not when the appellant is a retired annuitant because they don't have typically the MSPB cases that this court hears are they have improved the charges or the penalties excessive etc here that's that all of those protections aren't aren't at play because Mr. Soto was a retired annuitant. [00:15:29] Speaker 01: Did the agency rely on the distinction between [00:15:33] Speaker 01: retired annuitants at will and the others? [00:15:36] Speaker 01: Or is that your argument? [00:15:39] Speaker 00: In what aspect of this case? [00:15:40] Speaker 01: I mean in terms of deciding when the agency said we can't find any comparators. [00:15:45] Speaker 00: So what I know is that there was discovery. [00:15:48] Speaker 00: So Mr. Soto is not represented here, but he was represented below, and that there was discovery requested for comparators, and that the agency wasn't able to locate him. [00:15:59] Speaker 01: The initial decision by the AJ, the evidence from the agency was, oh, we don't treat people differently. [00:16:06] Speaker 01: It was very vague, as I recall. [00:16:08] Speaker 01: And there was a remand from the board, full board, saying, go back and look at that again. [00:16:13] Speaker 00: Right. [00:16:14] Speaker 00: Well, the reband was most focused on car factor two, but there was some issue in car factor three to revisit. [00:16:22] Speaker 01: And in revisiting that, there was no evidence of any... My question is, I saw in your brief that you used the distinction between the retired annuitant and the Chapter 75 employees as a basis for finding non-comparators, but I couldn't see where the board, the AG or the board actually used that factor. [00:16:42] Speaker 00: Believe if we flip the page 28 of the second initial decision we can look at the specific language that the board used This is appendix page 27 and 28 I [00:17:01] Speaker 00: And the AJ states... Is it in the actual appendix? [00:17:06] Speaker 00: Yes, Your Honor. [00:17:06] Speaker 00: The appendix is messed up. [00:17:08] Speaker 01: 2728? [00:17:09] Speaker 00: Yes, Your Honor. [00:17:10] Speaker 00: Pages 27 and 28. [00:17:13] Speaker 00: And just for some context, this is the board's second initial decision after remand. [00:17:18] Speaker 00: 2728? [00:17:19] Speaker 00: Yes, Your Honor. [00:17:25] Speaker 00: We don't have 2728. [00:17:28] Speaker 00: I'd be happy to share my copy with you, Your Honor. [00:17:34] Speaker 03: There's two volumes. [00:17:39] Speaker 01: Which is volume one or volume two? [00:17:41] Speaker 00: This is volume one, Your Honor. [00:17:42] Speaker 00: Volume one. [00:17:46] Speaker 02: 827, right? [00:17:47] Speaker 00: 27. [00:17:47] Speaker 00: A27, yes, your honor. [00:17:50] Speaker 00: A27. [00:17:51] Speaker 00: A27, fine, thank you. [00:17:53] Speaker 00: Are you talking about footnote 10? [00:17:56] Speaker 00: Yes, your honor. [00:17:57] Speaker 00: That's on the following page. [00:17:58] Speaker 00: I was going to tee it up with the 27-228. [00:18:00] Speaker 00: I thought you were talking about 27-28. [00:18:03] Speaker 00: My apologies. [00:18:04] Speaker 00: My apologies. [00:18:04] Speaker 00: Even without the New York accent that Mr. Soto has, sometimes hard to understand. [00:18:09] Speaker 00: So the first paragraph of section 3, which is on page 27, tees up [00:18:14] Speaker 00: But as Judge Hughes draws our attention to, footnote 10 is on the following page. [00:18:21] Speaker 00: And the AJ states that... We're now on page 28. [00:18:27] Speaker 00: That's right, Your Honor. [00:18:28] Speaker 00: Footnote 10. [00:18:29] Speaker 00: Okay. [00:18:31] Speaker 00: And the AJ references non-whistle-blowing, re-employed annuitants that the agency did not terminate for the following reasons. [00:18:40] Speaker 00: And so that footnote, if Your Honor wants to take a moment to review, suggests that the agency did not locate those employees. [00:18:50] Speaker 02: Mr. Soto mentioned there were five to ten comparators initially. [00:18:55] Speaker 00: I'm not sure what Mr. Soto is referring to. [00:18:58] Speaker 00: I believe it may have been either other folks that had made errors with Aspen or potentially I know there was another co-worker who had not come off of his compressed work schedule when there was this training. [00:19:12] Speaker 00: Is this the one that was transferred to California? [00:19:14] Speaker 00: I believe that was the agency, the individual that the agency brought up in the first initial decision. [00:19:26] Speaker 01: I thought he identified one but went to California and the board and the agency dismissed him as a comparator because his reason for his problem was job performance related as opposed to misconduct, going to honesty and character. [00:19:43] Speaker 00: That's right, Your Honor. [00:19:44] Speaker 00: I appreciate you refreshing my memory. [00:19:46] Speaker 00: Now that you've said that... I think that was his witness. [00:19:49] Speaker 00: That's right, Your Honor. [00:19:50] Speaker 00: I think that's correct. [00:19:51] Speaker 01: I think that's the only witness he identified. [00:19:53] Speaker 00: Right. [00:19:54] Speaker 00: But again, I don't think that they're the types of trustworthy issues that were at play here. [00:19:59] Speaker 00: I mean, this is an individual... It's important to put this in context. [00:20:03] Speaker 00: There's the first EEO training where, okay, he doesn't go to the fifth day even though [00:20:09] Speaker 00: permission was requested and granted for that fifth day. [00:20:12] Speaker 00: He doesn't come off compressed work schedule and the director, mind you, this is the director of an 800 person regional office. [00:20:19] Speaker 00: This is not just the direct supervisor that's down the hall. [00:20:22] Speaker 00: This is somebody, you know, SES level authority figure and she tells Mr. Soto next time there's a training you come off of your compressed work schedule. [00:20:32] Speaker 00: Two weeks later there's an AFGI training and Mr. Soto doesn't come off his compressed work schedule. [00:20:38] Speaker 00: So there was a real serious concern about Mr. Soto's lack of trustworthiness, lack of integrity that isn't present with any of the other comparators that are discussed. [00:20:48] Speaker 00: And certainly no other comparator that's a re-employed annuitant. [00:20:52] Speaker 00: And so, under CAR Factor 1, the motives were, or the evidence was quite strong, as the A.J. [00:21:00] Speaker 00: found, to separate Mr. Soto. [00:21:03] Speaker 01: Again, this is a reappointed- Aspen issue with regard to CAR 1. [00:21:06] Speaker 01: I think Mr. Soto is arguing that while the Aspen matter was being considered, he asked for access to his actual Aspen file. [00:21:20] Speaker 00: I don't recall that aspect of his argument, Your Honor. [00:21:24] Speaker 01: Aspen... My understanding of Mr. Soto's argument on the Aspen issue is that rather than evidence of an intentional act of dishonesty in trying to claim more credit generally than due, [00:21:40] Speaker 01: He said it was a mistake, some error. [00:21:42] Speaker 01: That's right. [00:21:42] Speaker 01: And that the Aspen system itself, the computer system, is prone to glitches, that you can hit the wrong key, you can get a duplicate. [00:21:50] Speaker 01: And there was testimony to that effect in the record. [00:21:54] Speaker 00: That's right, Your Honor. [00:21:54] Speaker 00: And the A.J. [00:21:55] Speaker 00: did not credit the testimony that this was an inadvertent mistake. [00:21:59] Speaker 01: He didn't credit his testimony, but his testimony is in [00:22:05] Speaker 01: distinction from the other testimony that these glitches can be accidental. [00:22:09] Speaker 01: And then my point was I thought he said that he asked for access to his file so he could review [00:22:15] Speaker 01: what happened and be able to better explain why it was a mistake and not an actual intentional act. [00:22:23] Speaker 00: I don't recall that request being made. [00:22:26] Speaker 00: You very well could have made that request. [00:22:29] Speaker 00: If the request had been made and not granted, would there be a reason why? [00:22:36] Speaker 00: I don't know, Your Honor. [00:22:38] Speaker 00: I don't recall, so I can't speak to that. [00:22:41] Speaker 00: What I do know is that there was testimony that ASPEN entries, there are errors occasionally, but in this case, there were five duplicates for one case, and the AJ's stated that [00:22:54] Speaker 00: There's no feasible reason why there'd be five duplicates for a single case in Aspen, and he didn't credit the credibility of Mr. Soto saying that that was an inadvertent mistake. [00:23:07] Speaker 00: Again, those types of credibility determinations are... Was the A.J. [00:23:12] Speaker 00: clear that this was a credibility call? [00:23:14] Speaker 00: I believe I know there's three or four instances where the AJ's flat-out says that Testimony is being fabricated. [00:23:24] Speaker 00: I don't believe he used such strong language in the Aspen issue But but I but my memory is that the AJ did not did not credit Mr. Soto's testimony that that the that the Aspen issue was the result of an inadvertent mistake and [00:23:40] Speaker 00: And so what we have is these three incidences that create serious concerns over Mr. Soto's. [00:23:49] Speaker 02: Mr. Soto said something today about Aspen protections. [00:23:53] Speaker 02: Do you know what he's referring to? [00:23:54] Speaker 00: No, Your Honor. [00:23:56] Speaker 00: I'm not sure what that was a reference to. [00:23:59] Speaker 02: What about his argument that there were shifting rationales for [00:24:06] Speaker 02: Terminating him. [00:24:08] Speaker 02: Originally it was about abuse of sick leave and then in a late breaking way the agency had to shift rationales. [00:24:19] Speaker 00: Right. [00:24:19] Speaker 00: So a couple things, Your Honor. [00:24:20] Speaker 00: First, as a reapployed annuitant, the agency is not required to share the, you know, to explain the grounds of separation. [00:24:30] Speaker 00: And so what happened is that originally the agency said, you know, your services are no longer required. [00:24:37] Speaker 00: Thank you. [00:24:38] Speaker 00: You're separated. [00:24:39] Speaker 00: And then there was, after his termination, there was some congressional inquiry and the agency [00:24:48] Speaker 00: raised this issue about sick leave. [00:24:50] Speaker 00: Subsequently, the director Whitty authored a memo delineating all of the reasons why Mr. Soto was separated, namely these integrity concerns. [00:25:02] Speaker 00: And so Mr. Soto's argument about shifting rationale, number one, that this issue is waived because it wasn't raised in his petition for review. [00:25:11] Speaker 00: And mind you, he was. [00:25:12] Speaker 00: He had very competent counsel below. [00:25:14] Speaker 03: Did you just admit that what they told Congress was made up and they [00:25:17] Speaker 03: came up with better reasons. [00:25:20] Speaker 00: Well, there seemed to be, and Director Witte had testimony to this effect, that once there was this congressional inquiry, which is after he was terminated, so of course it wasn't reprisal for his congressional testimony. [00:25:31] Speaker 00: Once there was a congressional testimony, there were all these inquiries coming from Congress, and that it really kind of left her, went out of her hands, went up to OGC. [00:25:41] Speaker 00: And OGC was not the decision maker in this case, of course. [00:25:45] Speaker 00: She was the decision maker. [00:25:46] Speaker 00: And she wrote the memo saying, these are the reasons why I terminated her. [00:25:51] Speaker 01: Well, was it really a shifting ground at all? [00:25:53] Speaker 01: I mean, wasn't the agency first saying, look, we don't have to give you a reason. [00:25:57] Speaker 01: The law doesn't require it. [00:25:59] Speaker 01: Right. [00:25:59] Speaker 01: And then there was a complaint. [00:26:01] Speaker 01: And the agency then backs off and says, now I hear you talking. [00:26:05] Speaker 01: Maybe there's a whistleblowing issue here. [00:26:07] Speaker 01: Maybe something is going on. [00:26:08] Speaker 01: You really don't know why we did it? [00:26:10] Speaker 00: Right. [00:26:10] Speaker 00: Right, Your Honor. [00:26:11] Speaker 00: I think the one missing piece is there is this white paper in between those two rationales that was provided to Congress from the VA OGC and that's where this issue of sick leave is brought up. [00:26:23] Speaker 00: That's not an issue in this case. [00:26:26] Speaker 00: The agency is not presenting that as a reason for his termination. [00:26:29] Speaker 00: His termination was for his clear pattern of lack of trustworthiness going against the direction [00:26:36] Speaker 03: She was the one that made the decision to terminate his at-will employment. [00:26:40] Speaker 03: And then later when it was clear that there was going to be a whistleblower case, so the agency had to justify its actions, she wrote a memo that explained her rationale. [00:26:52] Speaker 00: Yes, Your Honor. [00:26:53] Speaker 00: One caveat is that Bonnie Wax, the HR director, also advised Director Witte in that determination. [00:27:01] Speaker 00: But this is not to say that her reasons contemporaneously were those integrity issues, but she didn't document those until September 3 or 4 months after separation. [00:27:14] Speaker 00: Because more than substantial evidence supports the administrative judge's robust, fulsome decision in this case, we'd ask that this court affirm the decision of the board below. [00:27:27] Speaker 00: Thank you. [00:27:51] Speaker 02: Five minutes. [00:27:59] Speaker 02: Welcome back, Mr. Soto. [00:28:01] Speaker 02: You have five minutes of rebuttal. [00:28:04] Speaker 04: Thank you, Your Honor. [00:28:05] Speaker 04: Briefly, the agency argument treats this as a straightforward Misconduct case. [00:28:10] Speaker 04: I think that's pretty evident. [00:28:14] Speaker 04: Despite saying that this is not about we arguing the facts, well, my colleague just we argued the facts. [00:28:21] Speaker 04: or presented them in a different manner. [00:28:24] Speaker 04: First of all, I just want to correct a few things. [00:28:26] Speaker 04: One, I did request access to the Aspen records. [00:28:28] Speaker 04: I maintained my own Aspen sheets separate. [00:28:32] Speaker 04: I was denied access. [00:28:33] Speaker 04: That's in the record, in the testimony at the board. [00:28:37] Speaker 01: Second of all, his... Can I just interrupt, please? [00:28:42] Speaker 01: So you had a copy of your Aspen sheets. [00:28:46] Speaker 04: On government computers, because it has what we call PII, so I couldn't take it home. [00:28:50] Speaker 04: Yes, I asked for a copy of just that, but they wouldn't give it. [00:28:54] Speaker 04: That could have cleared up everything. [00:28:57] Speaker 01: Did you have access? [00:29:00] Speaker 04: No. [00:29:02] Speaker 04: They removed me, they removed all my access. [00:29:05] Speaker 04: Sorry, sir. [00:29:10] Speaker 04: If I may continue, my colleague is incorrect on comparators. [00:29:16] Speaker 04: The issue of the EEO leave and whether it was complete, comparators were Ramirez. [00:29:23] Speaker 04: He had done training where they didn't require him to change the schedule. [00:29:26] Speaker 04: The comparator for the issue in May was Ingram. [00:29:30] Speaker 04: He was caught in the same situation I was. [00:29:31] Speaker 04: He didn't receive notice, but he was labeled as an integrity risk. [00:29:38] Speaker 04: The comparators I was noting, interesting enough, my colleague doesn't note that, and please, [00:29:46] Speaker 04: Indulge me for a second. [00:29:47] Speaker 04: I just want to make sure I have the citation. [00:29:52] Speaker 04: And this is in the initial decision. [00:29:55] Speaker 04: The AJ relies on the comparators. [00:30:00] Speaker 04: His initial decision is because of the comparators. [00:30:04] Speaker 04: And then when the board remands, he recast the matter. [00:30:11] Speaker 04: HR, and unfortunately, I'm trying to find the [00:30:15] Speaker 04: exhibit. [00:30:16] Speaker 04: It's noted in my brief, but the HR manager testifies. [00:30:19] Speaker 04: As a matter of fact, it's noted in the initial decision. [00:30:23] Speaker 04: And it's also noted in my reply to the agency informal brief, where it's all underlined and indexed in. [00:30:33] Speaker 04: It's the testimony of the HR manager. [00:30:35] Speaker 04: They relied on five to 10 comparators to take the action against the petitioner. [00:30:40] Speaker 04: That is in the record. [00:30:42] Speaker 04: That's not going to change where those comparators came from. [00:30:45] Speaker 04: I am not sure other than Mrs. Wax, the HR manager that came from her. [00:30:50] Speaker 04: And that it doesn't matter how many times the board reissues. [00:30:53] Speaker 04: Whitmore says, well, there's five comparators that the agency testified to under oath. [00:30:59] Speaker 04: were relied on. [00:31:00] Speaker 04: So what's changed now? [00:31:02] Speaker 04: Those five comparators, not considering those by the board, is arbitrary and capricious. [00:31:08] Speaker 04: And it's not, doesn't fit within the CCE, the clear and convincing evidence record. [00:31:13] Speaker 04: Other, and forgive me here, I'm just trying to respond to the agency. [00:31:21] Speaker 04: In terms of the Aspen protection that your honors noted, I just want to mention, [00:31:29] Speaker 04: Since I've been there four years, there was this process where you sit down with, and Mrs. Edwards testified to this, it's in the briefs, they review your Aspen record before it becomes official. [00:31:40] Speaker 04: Everybody makes mistakes on this. [00:31:41] Speaker 04: It's always corrected. [00:31:43] Speaker 04: It doesn't matter. [00:31:43] Speaker 04: I mean, there are all sorts of mistakes on this system, but between the local supervisor and the employee, they correct the record for proper credit. [00:31:53] Speaker 04: Why remove that process? [00:31:55] Speaker 04: in the middle of the hostility amid the protective activity. [00:31:58] Speaker 04: And that's the question that I think challenges the finding of clear and convincing evidence in this matter. [00:32:04] Speaker 04: Because in essence, a process that's always been there is all of the suddenly gone. [00:32:09] Speaker 04: And the only reason for that is to essentially construct a narrative that cannot be challenged. [00:32:15] Speaker 04: Same thing with the issue of the sick leave at Congress. [00:32:17] Speaker 04: I mean, I don't want to call it false testimony. [00:32:20] Speaker 04: But they told Congress one thing, and then after Congress went away, they changed the narrative when litigation was coming up where they would have to put something solid in front of a court, such as MSPB or this court. [00:32:37] Speaker 04: And in that respect, [00:32:43] Speaker 04: It's not about reweighing the evidence, but it's whether clear and convincing evidence was properly followed. [00:32:49] Speaker 04: The agency doesn't get to remake the facts their way. [00:32:52] Speaker 04: The record shows records on Aspen that are just dated past the removal and don't have my name on it. [00:33:00] Speaker 04: I'm not sure how that's evidence or relative evidence. [00:33:04] Speaker 04: Distinctions with call three, similarly situated, it's not just about position, as Your Honor stated. [00:33:10] Speaker 04: I believe similarly situated. [00:33:12] Speaker 04: And I think the judge noted Ricky in his position, and I hope I got that right, but that involved a comparison of position descriptions. [00:33:23] Speaker 04: I'm a rater, same as two, 400 other claims examiners. [00:33:28] Speaker 04: If that process is available to claims examiners, why not the petitioner? [00:33:32] Speaker 04: Um, and same thing, title five and Newton, Douglas factors. [00:33:35] Speaker 04: Well, I think it helps to review call one against Douglas factors because why, what, how else do you determine if the action is against the clear and convincing evidence that the action would have occurred anyway? [00:33:48] Speaker 04: And I end with that. [00:33:49] Speaker 04: Thank you. [00:33:50] Speaker 02: Okay. [00:33:50] Speaker 02: Thank you very much, Mr. Soto. [00:33:52] Speaker 02: Much appreciated. [00:33:53] Speaker 02: The case is now submitted and that concludes today's arguments.