language of those specifications it's it's she's accused of hiring this employee in two thousand and six knowing that she lacked a college degree which was required for the position and that she created a g s fourteen level position for her three years later in two thousand and nine knowing she didn't have a college degree is required for the position in its brief the agency wants to ignore what it charged and that is simply not education and work experience well your honor even if you look at the even c's alternative theory of negligence which it's abandoned clearly in this brief and it's saying that she failed alternatively to verify six this employee had already been hired by the even see a year and a half earlier she in two thousand and five she'd already been converted from a employee from a student to a career initial employee she had actually been promoted  whether or not the person in question at this combined experience and education to qualify for these auditor positions and she but she knew that this particular person couldn't qualify perhaps by having a college degree so that's what i'm just trying to figure out she she had certain knowledge yes this person couldn't qualify through having a college degree because that person didn't have a college yes and then as far as i understand on this record there's no evidence that mr o took that additional step to secure out well is there some other way that this person is qualified i e through a combination of education and experience yes  in this particular instance my client in a supervisory on of your for thirteen years at a time is it fair to say that my understanding is right that there's not no evidence in the record that shows that this under took that exercise to try to figure out whether this person was qualified through some other means given that this person didn't have a college degree well that's partly true and not in the sense that our client because she had the experience doesn't already actually been trained as well she understood the opium standards and they were doing well understood at that time that you could be qualified by a combination of education and experience right and at the time when it was clear to her that this employee did not have a college degree she used her own experience and knowledge that you can qualify but with both this combination and she also spoke to her supervisor who was an s d s and who also had that same understanding and together collectively they understood that this  supervisor and i guess to some extent you rely on the drawer having the obligation to do that or precisely and not only that so the question becomes then whether whether that amount of reliance knew you could you know you could qualify who knew you could qualify as a result of a combination of both education experience but said essentially you know it's up to you and so if that had been an absolute job prerequisite human resources would never approve the hiring or that the transfer of this employee i in fact we have met that a reasonable federal employee that one manager is going to rely on human resources if you resources that you can it's your choice if you don't qualify as a result of education experience  i we just had just the education experience that employed over the two years because that that that check and by human resources in two thousand and six was verified yet again in two thousand and eight when they did a background check are and that's perforce she was promoted to the next higher level position in two thousand i mean what resources knew she didn't have a college degree and didn't disqualifier in my client was acting like a reasonable federal supervisor do you know it is suggesting that if that point everybody thought that she qualified by the combined experience and corrected yes absolutely well isn't that the problem here that the trapline did this to get to make sure that that was true well here you know our client i think you know evidence that was presented and and we would submit substitute her own judgment in fact controverted the testimony or what i mean is where what did she say about those individual obligation to  acknowledges the that two thousand and nine appointment and that's why this was testimony and essentially concurs that you know that the appellant had this obligation and was held to a higher standard she goes on page eighteen to explain that so what we would say is that in doing so not only did she ignore the actual charge and specifications that our client was defending yourself against she also ignored the testimony of those assigning official who said at that time even in the hearing is wasn't in the design if this was written decision at page three twenty nine and three thirty five in three thirty seven that that even  testimony at the board what really came down to it that deciding official decided is the she must have known that this college of view was required and she must have known because she asked the employee about it a few times and even the deciding fishel herself  fundamental in this with this came down to it not what she should have done because she understood there are quite is not a human resources specialist that h r in fact is supposed to be checking college transcripts and not your average federal manager here is the testimon just more of this witness the deciding official it's missing in that aspect of the transcript but the administrative judge acknowledge that that was the testimony provided by the citing fishel and in fact cited it paid seventeen of the appendix in her decision and we submit your that is and then it's in the second paragraph in the right in the middle where it says the deciding official this the witness conceded that at the appellant did not truly know that a college degree was required there would be no neglect of duty that language is repeated in the actual written decision at pages three thirty five and three thirty seven of the same deciding official decided to demote and suspend our client because she felt that our client must have known that college was required that that's simply not supported by substantial evidence in the record frankly any evidence and now it's telling that the agency wants to a its charge and go with the alternative theory that our employer client failed to verify that this employee was qualified without a college degree and therefore deserved you know to be punished well this this this court in the chance case and we think harmless error because as the court said only chance you know where the charge label provides no meaningful description of the charge and agency would be free to prove any conduct generally relating to the charge described the specification as long as it could be characterized as inappropriate or misconduct such a regime would be inconsistent with due process so the agency is pursuing an alternative theory of negligence here and that is to simply  your your problem seems to be more with between what i did and what them as people did not necessarily what did between the deciding official and the actual initial charges is that right fact that this did never did any investigation of this alternate way of qualification there was really only one way for this person to be qualified and that is by having a college degree this person didn't have a college degree so therefore selecting this person twice over was negligence of her duty for you know hiring qualified people would that be you're alleging here that fundamentally the issue we have your honor is that our client was was found to have committed misconduct that she didn't commit she's wrongfully accused of disregarding intentionally commit your branding her as a thief right and that's right but she's not a thief she's mr appropriator same thing here our client you don't use the reasonable judgment that that a supervisor would make relying on human resources relied on you worry sources to do any additional betting understanding that this combination of education experience was appropriate and even relied on her supervisors geysers also thought this employee was was was was qualified by reason that cation experience not only that the efficiency of the service wasn't everybody agrees that's not a requirement and yet the a miss b b sustains of the discipline based pong of charge which wasn't made at the agency right well your honor i'm look at a little bit differently that the agency specifications limit it to lack of a bachelor's degree i agree that the board took it a step further and said not only did you not have a bachelor's degree but you didn't do your due diligence to determine a proper whether they employed was proper because assumptions and not possess a bachelor's degree she hired her fully aware she didn't possess a degree and without doing any due diligence as she's admitted to determine whether she otherwise met the requirements so even if that's not what she was charged with before the suspect from the very beginning that demoted this person because i found based on its charges that mr joe hired someone knowing that that person didn't have a bachelor's degree period then we get to the board and the board says yes it's fine to demote her because she failed to investigate whether or not this is some c on a qualified under some alternate way other than not having a bachelor's degree and just sitting but right now it feels like we have some form of this alignment between what the board said and what the board ultimately relied upon because the board really ultimately landed on this as far as i can tell a conclusion that this person that is why what she knew or didn't knew although my honda makes much of that the fact of the matter is she was still negligent because as a hiring official she was well aware cooling it i see a problem with going back and saying this what m doe should have known or not have no basis in this imperfect specification because the specification did not give her notice as to also the combined you're being charged with negligence for failure to prove it so the the harmfulness here is that hot have the obligation to term that this employee was not qualified by reason of my virtual of a college degree or and or other experience in education here you know we know that that this employee had twenty four hour twenty one hours notice another classic of qualified even at the hearing the human resources official sat you know i would have investigated that would have been my job to investigate so so even if the even if  don't ever investigated she never got the transcripts right you know you could never have honestly say i know this person was qualified through this combination of education and work experience because i looked at the transcript that wouldn't be an honest thing to say that she never the problem from the sto is she never investigated it and because she never investigated it she had really no reasonable basis to believe this person was qualified knowing that this person didn't have a college degree and that would be there for a finding of negligence does that make sense it does but a definition our common law definition of negligence is that you have a duty and that you breached in the reason we prudent person under similar circumstances would take the right the same action right so it's a reason we prudent standard and here you know our we believe that the not only did our my testify but the substantial evidence in this record from her two senior executives supervisors and the human resources managers the testify all that they all knew at three different periods of time over this ten year period this employee did not have a college degree let her still continue to work you know that our client was reasonable she was reasonable supervisor to rely on not only this employee's great work her knowledge of the work  her what she believed to be her qualifications based on that combination and human resources told her that you know what to do her managers which communicated this to her that that's fine it's your call it's your judgment so with you know take ten years to come back later and blame she was defending but if in fact we don't have to reach that you do not sir and you know and alternatively if you felt that that you wanted to really examine whether or not she was truly negligent and then we would submit that the penalty is