to consider that of the c of an alternative of a sixty day suspension second the board failed to consider the history of mr nuisance if users having harassed him and third the board felt consider position our position is if there is a lesser penalty because then the board of the agency should discuss the adequacy of that lesser alternative than whether it would be in that in the facts of this case adequate think that's the case here and we've noted several cases on page nine of my reply where a new penalty is greater than thirty days were accepted by the board by the agency penalties of sixty days ninety days one hundred twenty days and so indeed in this very case the agency itself at some point thought a sixty day suspension was an adequate penalty and there's a concession here by the agency representative that somebody an agency management thought that a sixty day suspension was sufficient but along the lines of judge americans question what i'm having a little trouble understanding is that the deciding official the board did explain that mr who's who was only temporarily deterred from prior problems by this is pension to previously received and they explained that's why they work terminating him because it didn't seem as though he was deterred so why isn't that satisfy the need because your complaint is they didn't consider it you're not arguing that they considered  came to the wrong conclusion and your argument is they didn't consider it but why doesn't that demonstrate that they in fact did i think there's there's two difficulties with that first is that that testimony was all proffered during  hearing that was did not make part of the agency's decisions that would be a post hoc rationalization of the agency's decision and the second difficulty is it's inconsistent with the citing officials on testimony wherein she stated  when asked did you consider alters sanctions quote i did not and so there is an inconsistent but she said i did not because he had not previously been deterred from that would she said didn't she say that prior  so in the first is when she was first actually say she did not and then later testimony when pressed she did start explaining oh it's because of you know he was not bitter but i think it's important here also to recognize that even you have received prior warnings and or disciplinary actions or similar misconduct these prior warnings and or disciplinary actions have only temporarily deterred here inappropriate actions ok so this is a very decision the found the sixty day suspension adequate and sufficient if you turn then to eighty three fifty five here is the same official issuing a proposed removal and if you look under the adequa it's upon first initial impression she thought sixty suspension and then later impression that same evidence she thought supported the terminations and i have to review the decision of whether or not it supports a terminations with so much deference it's crazy in this case so how do i jump from giving her all that deference to the fact that she thought the same rationale could have supported sixty days means it can't possibly support terminations well i think you for two reasons first an agency that has to explain why that first proposal wasn't good enough i would say necessarily that it presumptive i would say that it is an alternative and under the twelfth douglas i mean i don't understand why you would even look at  that first proposal because what's happened is they've changed their mind and all that they have to do is explain on the second proposal that they consider the douglas factors and that they view them off properly and i would that's the point of your are trying to make before that if you look at the analysis under adequacy of all jurisdictions their justification which by the way does not so references well this is where you i think you get into trouble because let's just assume that fire proposal is off the books ok then that there was somebody that thought it was sufficient so i think this case sets a lot of other cases apart in fact the government's not a flip find her side to any case for this attack so to let me just ask you hypothetically if that prior proposal that was rescinded wasn't on the table would you even be here well there are other the removal be appropriate given that it was that the fence ok i think that under those circumstances the agency would still have to consider alternative and if it was found yes indeed you did consider the range of alternatives and yes but doesn't the decision reflect that they considered alternatives well under this fact scenario no under our political scenario possibly but under sufficient and wouldn't be a good enough to charge and that no deterrent would be available so removal was the only happened well i think there's two issues there right that were making a lot of implicit assumptions about what the agency dead and all of the record evidence suggests in fact the agency's own testimony when first asked if she considered alternatives she said she did not so the testimony says no you have you know a paragraph that is regurgitated through testimony is found on a four thirty five and it's online so if you start a line for it says question ok and you did consider whether there were any kind of alternative sanctions that might have been applied here seven answer i did not and she continue next sentence the penalty generally gives generally goes up to a thirty day suspension to removal after removal i've never seen a suspension post for more than thirty days so she categorically did not consider anything beyond a thirty day had no friends and these facts there is no disputing of these facts at the here it's all but even if we accept the proposition that those that that is true that doesn't change the explain why the conduct may have occurred some other alternative but the board specifically considered that the board the fact that he was provoked doesn't change the fact that he shouldn't have committed this conduct and he has no rehabilitat the provocation but not the longstanding harass here i mean you're cutting a pretty finally there i mean that seems to me like opinion writing correction not actual air well there was and i would say that there's no discussion of any of these fact decade long you know disagreement between these employees in a tense working atmosphere provoke somebody into something i could but because the douglas factor actually separately delineates provocation from harassment here  the agency then on august thirteenth twenty fourteen issued a letter saying that this proposal was being drawn so it was cancelled and pulled back and we know from testimony that took place after the hearing it's a page a four fifty two  disciplinary actions did not match our pattern of progressive discipline nor was enough weight in my opinion given to the fact that he had extensive prior disciplinary record but it doesn't seem that that her primary motivation here is that it didn't match supposedly written out progressive disciplinary state in other words that right that you're supposed to go from thirty days to removal and so she really didn't think to consider anything in between to teach well i didn't i don't know i think based on her testimony she did provided within the record itself specifically at page eighty ninety one what's interesting is that at last it lists the appropriate penalty for the first through the third offenses and for example it includes under creating and was given the opportunity to explain why he didn't feel he should be relieved and the agency considered and decided that removal given his past disciplinary extreme given the extreme nature of the seriousness of the conduct that took place the fact that the folks were subject to felt threatened that given that given his extensive disciplinary history there were google was the only thing that is the appropriate it was the only form of discipline that matched the progressive discipline as outlined in the i three days off getting with you know being removed for a subsequent offense would seem to test the boundary of what is a reasonable penalty but when you have the kind of disciplinary history that we had here the bell the guide certainly suggest what about that his argument that there was just a failure to consider really all the other circumstances in other words this was the work place where people were very nice to each period and he was picked on just like he picked on them and but there's certainly a lot of testimony from the various parties i think what's critical force you to bear in mind the credibility determinations are given a high level of deference a stretch more noted in this instance you had testimony from witnesses  a problem with the agency not considering the douglas factor related to harassment and provocation properly so everyone we're here can i see in the board's decision that they clearly understood and took into account in their assessment of penalty potential harassment going on in the workplace so i think this gets the judge to use this distinction that it's really a draw for a line between provocation or harassment but the board felt was that we know there and there may be other references to it but this is one of those that i recall it says in the first full paragraph may fourteenth after considering the evidence i find the balance misconduct is serious and will not displace management strengths responsibility in maintaining employee discipline and efficiency the advance years of service and outstanding performance do not outweigh his prior discipline which included a thirty day suspension and then it talks about the employee's testimony and that's just the fact that he may have been provoked does not excuse his behavior the fact that he has been suspended mr newsome didn't necessarily testify it was just quite light exchange his his story doesn't connect with what the fact that folks were talking about it the next day and the fact that i mean for example one of his colleagues who's worked head phones took them off  took testimony from everyone who was involved and considered all the various perspectives and decided in the end that in this kitchen mr turner and the folks you know they have the agency had no reason to lie and that their stories were consistent and then a lot of mr nuisance witnesses supported their story so you can certainly argue it either way but i think that's why the discretion is accorded to the board to weigh those various credibility determinations and i think there's a basis here to reverse that decision just want to make three quick points first of all my colleague here noted that there were a number of facts and circumstances that would have supported the original answer initially penalty but i will note that all of those fact visitation of a lesser penalty now contrast that for example with the malloy case in that case the court found that there would consider certain circumstances but it simply on the scale so to speak but even if not this court still vacated re man and request that the board conduct a proper douglas analysis and consider the mitigating circumstances that in this case were not considered and then finally we'd like to note that this is we're not raising credibility issues appeal is not about credibility we're not disputing credibility it's all about the failure consider significant mitigating circumstances and if your question thank you and thank