may please the court thank you your honor so my name is stephen smith and i represent carl hayden in this case this case involves the air force discriminating against one of their own for his service in the air force today mr hayden ask that you consider three distinct claims if you find for any him on any of which he would have the case be remanded to the merit systems protection board for a calculation of back pay interest and a sensitive retirement benefits the first in the air force's cancellation of his promotion upgrade the fact that the board found that there were other reasons there were other reasons rather than his military service yes they must be credited to justifications of the air force right the first being that he was required to complete a desk audit however that that's got it was not required as both the m s p found in the air force it was certainly not required the imposition of the in person desk allat of mr hayden continued to discriminate against him based on his absence from military service and the requirement to the extent it is consider acquirement could have been completed by interviewing his supervisor miss chambers is that it i'm trying to find out exactly what your position is or is your position that they should have done away with the desk got it that they should have accommodated him by having a desk on it of his supervisor or by phone or are you saying he was entitled to should have been entitled to a desk out at the minute he came back on your one your honor i would have first argued that the desk thought it was not a legitimate reason to cancel mr hayden's promotion request my second to the extent that this answers your question i believe that the proper the promotion process could have been completed and should have been completed in his absence whether that means that they did not  again that further the imposition of the requirement continue to discriminate against mr hayden due to his absence as this court has recognized absence is the most predictable consequence of reserve service the what left on further the air force would point to the presence of surplus g s twelve and other g s eleven employees to justify their discrimination did did the air force and we did that the board this in connection with the discrimination claim or did they only point to that in connection with the other kinds your honor unfortunately the p b s analysis is far from clear in setting out the evidence they consider for every on under that rule mr hayden because he was already performing the record performing just twelve duties could have been promoted without without competition i think even if even if there was when you  could have been promoted without competition even if there was competition there there's three different claims here some where mr hayden has a different type of burden of proof and would have to prove they would have been gotten  regardless and it's his burden was versus the discrimination claim what would the government's burden is the government's burden simply to establish that he would have been subject to competition or would the government have to establish that he would have failed in that competition the latter your honor the government would have to establish that he would not have been promoted for legitimate reasons standing along that means without reference to his absence and also he would have to show that he would not have in fact won the competition on the move him up to a twelve just your honor ok so that employee was floating around at the time at the relevant time frame gesture on it what about the issue of how long such a process normally takes is there there is no seems to be nothing in the record that would establish for us how long a a promotion like this assuming the dust got it went forward with the supervisor how long would it have taken i would argue that the record evidence demonstrates that the supervisor herself processed the only evidence is that misstated in excuse me mr hayden supervisor ms chambers believed that the promotion would have been completed had he not been absent from military service there obviously some changes and needs they said they didn't need twelve at the time that mr hayden came back but then mr hayden gets promoted to twelve anyway is there any evidence in the record with respect to when the drop in needs first occurred and when return of the needs a drop in needs occurred after the promotion had been cancelled your honor further if the promotion have been timely processed had it not been cancelled due to mr hayden's absence due to military service the i would submit that the needs of the protocol office would not have changed so therefore the air force is attempting to justify its discrimination by the very results of that discrimination which is both circular and confounds common sense when he was promoted twelve when he was moved up to a trial was he subject to competition at that point to my knowledge no your hon turning now to the reemployment claim which does not depend over which does not take into account the air force's motivation the merits estens protection board air when it found that consideration for the promotion was not generally granted benefit available to all employees the air force manual specifically contemplates that promote the availability of positions to be upgraded and governs and provides regulations applicable to has been explicitly rejected by the m s p b and resident lost which explicitly overruled all cases suggesting that further the presence of other employees is not part of the of the standard the applicable standard that should be suggested sue so to the extent that the service employees were considered in terms of the reasonable certainty of mr hayden's promotion upgrade that was legal error under the proper standard which only should be evaluating m outstanding performance reviews his history of merit increases as shown by his increase from g s ninety g s eleven and the pay history of employees and other similar position many of which had and were eventually upgraded from g eleven to g s twelve as protocol specialists the only record evidence suggests that applying those factors that the promotion was reasonably certain i would further argue that as mentioned before mr chambers believe that the certainty that would be asked a question of law no your honor i believe that the merit systems protection board erred in considering the presence of other g s twelve and g s eleven personnel that is not part of the proper standard so therefore that would be the legal error on applying the correct standard i believe that you and looking at the evidence are the only reasonable interpretation is that the promotion was reasonably certain find record evidence showing that mr hayden's military service was a motivating factor for the air force's adverse employment action however applying that same standard they found that mr hayden had somehow not to the explicit finding a factual finding of the board that his absences were or reserve duty were considered not only for the cancellation but their continued decision not to pursue the upgrade upon  i would suggest the opposite the fact that those facts specifically the notes of the agency which corroborated mr hayden's claims that they had considered his motivation and cited his absences excuse me during that meeting that day after meeting with the e g f r and for the first time raised concerns that were totally out of character regarding his performance is in fact that it's of retaliation is p be apply the correct legal standards and substantial evidence supports their decision to dismiss all three claims with respect to the discrimination claim the m s p be found that the air force would not  there was the fact that even if there had then the upgrade had been processed in that time they decided to go forward with with reclassifying the position then there would have to be competition and there were these surplus employees and the board does in fact cite to that information in its section about discrimination in the frontage j but what was the government's burden with respect to that just to show that there would have to a been competition or that he would not have survived the the government's burden is to show by a preponderance of the of the evidence that mr hayden would not have received this and because there was this mandatory priority placement that there was a surplus g s twelve employee who had priority over mr hayden in any competition that was sufficient to stop that employee ever get a promotion to a twelve she did receive a just twelve position in two thousand and fourteen after surface one of those was surplus throughout the entire period of this and i don't see a finding by the board that if that other than the fact of competition that's reference i don't see a finding by the board saying that the government has stablished that that that employee the other employee necessarily would have been chosen over mr hayden the board does not state it as forcefully as perhaps the air force would have would have liked but th said in eric's and that you can't even if you would hold absence against any other employee you can't hold it against a military employee so this is this is actually a segue to that second time period so at the time that the discretionary only hold it in other words to not conduct the desk got it in the way that could have been done with a supervisor or to do it by phone own ordered ordered to conclude that in this particular instance a desk out it was not necessary given the per the recommendations of his supervisor in other words that decision in a number itself to me seems dead on with what we said in erickson i mean we said in erickson repeatedly you cannot treat military employees the same way that you treat nonmilitary ploys so the mere fact that she preferred usually to do this in person doesn't mean that she had the right to impose that preference on a military employee so your honor our position is that erickson is about discriminating for the fact of the leave so just because you can discriminate against someone for leave that's not military you can't discriminate when it is military leave here there are downstream effects of that sufficiently established that that was valid reasons were sufficient to overcome its burden of proof turning to the reemployment actually before i do that or wanted to clarify one thing miss mr hayden argues that he should not have had to have competition and that role nineteen would have applied this is in africa and the air force manual thirty hundred three table to one which the parties have discussed at length in their briefs room nineteen is about if there is an error in the classification in the job description is written it incorrectly classified and there's no evidence that anyone has argued that that was what happened that when mr hayden received the g s eleven position in two thousand and ten he should have it should the flight left he competed for a job there was competition and he received it and the reason again that he was able to receive it was that surplus just twelve employees had already gotten other chess top positions prior to his competition that the thing that's troubling me in the record is that the reference to competition still i understand that someone has a priority but they're still they still have to be similarly situated in in all other respects ye so the the the fact that i mean again the board never makes a finding that this other employee necessarily would have been chosen the generic head and there is that didn't in the record  decision shows that they that the board determined that the air force by a preponderance of the evidence which is that mr hayden would not have gotten this job that there were other employees with priority over previously was asking counsel and it is a lack in the record there is no evidence on the record that i'm aware of that discusses how long these these upgrades usually take but  say that it's unclear whether it would have processed it even if the it had gone forward right but unclear or whether it would have been processed doesn't help the air force when the air force has the burden and the discrimination claim the non if the poor not if the air force had to establish that this particular way is how he would have not gotten the job at the point is that whether they decided not to upgrade the position whether it upgraded before july two thousand and twelve and circumstances change or whether there was this need for competition and there was a nother protocol specialist who had made dettori police their priority over him all of this together the board so that he would not have gotten this position and that is substantial evidence to support that sounds like to speculate about and mean i think the government's burden would be to establish that he would not have gotten it not to say well there's a lot of factors and we can't tell it's your burden it's not his or her especially your honor i don't believe it's speculative it's saying any of these paths leads to mr  i'm not sure exactly when the second one got the job but it's at some point during this period there was only one so as of march two thousand and twelve which is i think the timeframe we should be looking at since that's the time before he left you saying there there were two i think i did said there was one there was there was one the entire period for from march two thousand and twelve to after two thousand and thirteen there is one i i confess i'm not sure exactly when the second one them there so whether there is one or two doesn't really matter because there would be someone with priority to get this position a political specialist g s twelve to get  considered a recently certain we've discussed that it's very similar to the discrimination except for a different burden of proof but i wanted to briefly touch on whether i'm the promotion is a generally granted  advantage to all employees the board found that there was no evidence that this type of commotion creating a new a new position would be would be generally granted to all employees and this isn't like a career ladder promotion where you have a job that says eventually you can get to g s twelve this was having to create a new position opportunity available not if there's no need for it not a third this is not this is not a it is there is evidence on the record that one that ms chambers testified mr hayden supervisor that when she recommended things they generally went through however are there isn't evidence that there's normally you know what w happen when there's a circus employee and things change in the midst of the process there's there's very eleven's about whether that is a usual circumstance and what would happen usually in that circumstance and again that just gets you further and further away from the suggesting that you have to just look at the person's work history and then say oh well they are they're good they have good past records and then it's recently certain they would get this promotion even if it had to be competed first to address the timeframe of which a motion takes to be processed i would submit that mr hayden's recent promotion took four to six weeks from the time it was initially seen that had to be processed i would also like to point out the fact that there are a lack of fact findings with regards to whether mr hayden would have received a promotion is not a coincidence it's because the m s p failed to apply the correct legal standard they required mr hayden to show that he was entitle to the promotion rather than asking the air force to prove that he would not have received that promotion therefore many of the facts that your honour's have pointed out are lacking the record is more than just a mere coincidence search your position that even though the board portion of table two point one i would argue that any such arguments be waived and what's what i mean but we can read the rule so certain there were certain sound does talk about the fact that that if there was an improper classification it actually is actually directed to the fact that there is no increase in duties mr hayden has already performing g s twelve duties as detailed in the position upgrade request so therefore i would argue that while nineteen is the applicable rule also rule twenty also provides for noncompetitive promotions tom in the event that there are not similarly situated personnel there was no such factual finding made by the air force exceeded by the in this p b in this case finally with regards to general grant the benefit there is record evidence i so there is one on to the extent that that person had mandatory place in priority and should be considered though they should not under the proper role the extent credit that argument of the government there still should have better competition that takes place there is no showing that that position of trade was request was submitted that was of the supervisor presumably who was evaluating all of the g s twelve personnel and she chose mr hayden because he was already performing g s twelve duties i think that her judgment she was in the absolute best position to make that recommendation and she did so thank you mr smith