the finding of the arbitrator of which was that he was denied an opportunity to respond to the material used against him mr lacy says that having found out to be a the evidence that the department cements in its brief is the testimony of the proposing official when she's asked the question whether she performed the douglas factors the douglas factor analysis firm of the four she says before what's not in the record and i think this is why the are there is substantial evidence to support the arbitrators findings which has not been which cannot be challenge here there's no cross appeal  but i think there is substantial evidence to support the arbitrators finding that mr lacy was deprived of the opportunity to review in response to that because the only evidence in the file is the document that you refer to respond expires on the thames there's no evidence that that document and i think your question is is precisely the question in this case there's no evidence that the court that that document was put into the file at any particular time and there's every reason to believe it wasn't put into the file until the deciding official signed off on it in any event the arbitrator made a factual finding and that type of finding was that mr lacy was deprived o and then made a finding that it wasn't appropriately presented to what is now me well i think those are more subtle questions and i really don't know the syrian border i mean there's some confusion here well i think what i think review the file when he was given years and he was given he was given the opportunity and there's no evidence we are betrayed or apparently found that the that that was not in the file because he concluded mr lacy did not have the opportunity to  includes everything that goes in the charges including a lot of respect and accept that we have contrary evidence in this case we have an undated document we have evidence that doesn't establish there's no effort by the by the department to put the to say that it was there that's clearly the challenge they don't they don't refute it and then in their grief they cite a piece of testimony that certainly does not compel the conclusion doesn't even create the inf very very dramatic case that went to this court was settled actually and the agency could have certainly read read noticed and read you know given the employer new procedure they did not they did not so lacy had access to the or mononoke i think in the first instance it's the arbitrator's already decided that there's substantial evidence to support his conclusion as i mentioned an undated document then dated after the time has expire document is undated that's the argument i was making and then it's signed off by dennis smith who is the c e o of the health system i read that first as eight seventeen but i think it's a the level i think it's the only fair reading in any event it's after august attemp record evidence that said it was created in x y or z date but we do but we but the for more important point is there's no evidence that it was ever in the files to which mr lacy was told he could go and view and that's that's that's the growing of the case as to look for things that's not contested the question is what was in that file but here's the other important thing about the what was in the box that is a forty five and a forty six which we say was not in the file it's a very general and  statement of misconduct that was if you will ignore in other words what the proposing officials are suggesting to the deciding official was look we've given this guy free ride for a long time now's the time to crack down on him what c actually correct procedure so you go back to do a second try to be out there and you could end up at thirty days you could end up at fifty days you could well that's never thought that i had lost when judge clevenger asked me the question i think the agency would be hard pressed to say the go look at all the information it says the information upon which this is based is in this file for your review and i think as the court mentioned the government's entitled to perception of regularity it saying we're giving you the information to let that know choice yet and putting the notice that says all the information is available to you in this interim and the human resources office that we relied on and the fact if you're talking is that the date that was when it was dated by the deciding official know sadly indicates that he's refuted in the scope of his review of materials that were presented to him and then he does his own sort of does a factor checklist that's also in process in his decision even though he uses it earlier on when he's describing an argument that was made to him so he's cognizant of the argument being made he choses to chooses not to use those words were al just it's not entirely clear it's possible that he you know if he is making a due process finding it in his analysis i think what he's doing based on his remedy is agreeing with the government alternative argument which is if there's a if there was an ex parte communication it didn't rise to the level of a due process problem and therefore we don't need a new process which you know i would not want some to my point pattern of a well activity including those from which you've already been punished or did the charge only relate to this effect incidences of a well and specific instances of insubordination and therefore is was is improper for the dozens of factors to take into consideration prior conduct that had already been addressed by the i don't think there's evidence that he's being charged for something beyond what's in the specific charges the document that proposes his suspension does state that it will take into account prior discipline and it does give him notice but in the hearing transcript on page twenty two starting at line seventeen as about how the deciding officially use these two prior incidents and i think his description of how he used them is  exactly appropriate he used them not to make some sort of judgment that because he behaved this way in the past he was going to his behavior this time could be  asked what was the primary reason that you felt the thirty day suspension was appropriate and he answers i believe you had a ten day suspension prior to this so where do you go from that you need to do progressive as some sort of aggravating factor or using them to address addresses character in some improper way or make assumptions about what actually happened is defusing them in the sense of looking at have been unusual for such a small change and i think the agency didn't express interest in doing that  you know i'll just turn back to the general argument that we've made we don't think that that the department of veterans affairs we would say it's not new material and for her us business to make a judgment that it was not a new image or we are making it we are asking the court to make a judgment that if there were an ex parte communication it's not new and material and therefore i think that even if you look at the documents i don't think there's any indication that the fact that the deciding official relied specifically on hearing that same issue from different parties i don't think there's anything the record course that but if even if you look at in terms of whether or not mr lacy had this information or whether or not the deciding official would have had that information without that specific statement everything else that the decision was based on i think communications same idea as the first charge including the charging document that proposal itself the first charge absent without leave recounts six incidents where mr lacy was expected to be at work but either showed up or sought to take leave the second charge failure to follow instructions recounts an occasion where mr lacy refused to update the patient's record as instructed in a surcharge of disrespectful conduct recounts the fact that mr lacy not only failed  something that his supervisor asked him to do but responded to her insulting and disrespectful manner so all of for all three of these charges describe an employee who is a problem and he's not hearing his weight if he doesn't show up for work he's not hearing his weight somebody else has to do that if he's not if he's refusing to do the work that his supervisor tells him to do he's not carrying his weight someone else has to do that work and that's a problem so i don't think it was new and  material for anyone to hear that he was a problem and not carrying his weight so therefore we think that humility him and even if this was an ex parte communication it didn't rise to the level of a due process violation postal service a five prong test that is examined and we don't think he's made any sufficient showing at this point even the criterion under that standard that refers to procedural error or requires more than a showing of harmful procedural error acquires a balancing test between the agencies excuse and the employee the prejudice of the employee and here the agency pretty clearly tried to make materials available to mr lac pretty clearly mr lacy was on notice that he was a problem and not hearing his weight whether or not he saw that statement and that he needed to defend against that so even assuming that the agency erred it's not clear that that was relayed to can make that balancing test and he hasn't offered any argument not a fact for all of the foregoing reasons and for those set forth in the government papers government asked that the court affirm the make a couple of quick phones talking to the point raised by judge clevenger on new material what's really very new is is that there's a second part of the statement his behavior affects the morale of other employees in the work area that's not stated in the proposal or the decision in the proposal in any way by explicitly or implicitly we often get complaints from his coworkers that he has a problem and not hearing his weight that's again not implicitly or explicitly in the proposal clearly new clearly prejudicial the arbitrator said it was just it was considered by the deciding official you can find a page a fifty one quick comment on progressive discipline if you look at the contradiction of what douglas says douglas says at least appropriate to deter future conduct and all the other factors you may have a lesser offense a second ago than you had on the first go and according to douglas you would have to then impose a lesser not a greater penalty the thought and it's a misconception that i frequently confront with the management officials is if we gave you a year in jail the first time we got to give you two up two days in jail that's two years in jail no second time even though the first offense was armed