she received determination notice and filed a claim of the department of labor she fired apartment labor claim and august th she received  th it relied on evidence that went right up to july th that be a piece of evidence the agency argues the strongest about an alleged privacy violation that wasn't  twenty five someone who did not have the authority to terminate and testified that that wasn't a final decision by her because she could always be changed financing fact was after the december twenty twentieth's sixteen date it was in january february march april may june communication between them they knew precisely where she look was when she left for military leave she told them that they were rich regionally was about thirty days out that but that was extended by the military because of their needs until september th and she gave them notice of the extension until september  and all of this is summarized in the department of labor usera complaint that you filed as well as in the m m s p b filing and those are in the area of  reasons unrelated to her military service oh it absolutely is not they never attempted to stablish anything other than a probationary terminations the record itself sent a note saying in effect hey what's going on were there any other times within that two week period is that when she made her nd request and as i recall by email the response was almost instantaneously saying you're going to get your money is that correct occurred but believe was not and as far as the record goes there was conversation with the sorry wait wait wait wait wait answer  question ok i know it's difficult to see so you're saying that she never received leave she received the approval of leave after she returned from the military but the physical that she had to take in according to the testimony of diminished rate of officer that well she took a statement from each party and brown said that because it was granted that would be the end of that month ok so is it your position it was res determination claim required course and should be reversed and what the agency did here is not only a probationary germination as opposed to cause terminations the ssion for reem of rights and that's exactly what happened here the agency while she was on leave could should have required that any decision be made after she returned from leave subject of course to re reemployment rights by not doing so they denied her her reemployment rights i think that is quite frankly open and shut in this case as far as the initial claims she made which would rise or fall on whether there was discrimination you know i believe that once it's determined that they make many arguments in the brief concerning the evidence with regard to those mandatory language that says that they shall evaluate a probationary employee for their fitness before retaining them in entitling them to the greater benefits under chapter seventy five and you say or which says the determination shall not be associated with anything to do with their military leave but rather only for cause here the agency making the charmin nation to terminate her compiled terminations records that had eight different instances and it of conduct that she had engaged in which was the justification for for her termination i will note mr bagley had indicated that there were events in the file that occurred in april in june as he indicated she was on military leave at that time so there were not events for me though in june in that file i would i would direct the court to the  if during the period of injury because that section also relates to the principal injury during a job or the performance of uniform service conduct such that it would just qualify him or her from employment under o p m or agency regulations then rights restoration rights may be denied and so we read that regulation to mean that of course you say or means you cannot terminate them for anything related to anti military bias if they need to leave their job and go and serve in their reserves capacity they absolutely must be permitted to do that however that does not obviate the requirements of the civil service reform act or the civil service reform act exists so that agencies have an opportunity to spend a year with these employees and get to know them and see if they are the right fit with the agency before they are subject to the heightened terminations requirements under chapter seventy five and that's and that's the reading of the two regulations you would urge the court to one that permits an agency to fully operate under the civil service reform act and someone has to be removed for cause if you have to comply with the company's requirements you have to give a notice to propose removal an opportunity to respond perhaps in some cases at least some sort of performance improvement plan and sent you write a letter and say school's out your last year is whether it is three days fro now so the civil service reform act and the usera neither of them require any of that obviously the probationary employees are not entitled to notice or to counseling and i would i would point the court to the state version of the usera statute which appears at twenty and so the procedure that was followed was the procedure that perhaps is used for probationary employees but were told there was cause when she was removed cause or not so we would argue that not because probationary employees are not entitled to the protections of chapter seventy five dollars section section twenty of the c f r which again relates to you sarah within the private sector and state governments specifically sets out that there must be a notice in a determination to respond s and then we have the federal statute or the federal regulation that just says for cars and so the requirements of that are that there must be some cause it must not be associated and in any way with their their requirement to set the the basement here right if it and decide exactly how low the cause must be in order to be in agreement with you sara and the civil service reform act because as you as well it has pointed out there is ample evidence within the within the record that there was a significant amount of cause discrimination so we don't see we don't decide whether it's reasonable or not you were telling us that it was reasonable but that's not the question who question is the st place extent the court wanted to apply perhaps the standard that applies for private sector again we would argue that it's because that language does not appear in the federal regulations should not apply here but but that language and twenty c f r says that  is quite before the court but the court costs or has to take into account the reasons that you can terminate someone in their one and if the if if the reason is because they just took the job and turns out they're not qualified and there are then you can do it though yes as long as you mentioned which is it's idea that it was a pretext for firing her so he walks through the a j walks they're all six or seven pretextual reasons that she asserted addressed each one in turn and the obvious the obvious other side of that if you determine that it's not a pretext that means you're determining that there was actually cause that this at these events actually did  the considerations so just a reply because this was in the probationary period absolutely not your honor that i missed he was considering whether or not there was any anti military bias associated with with the decision to terminate her as a probationary reconsideration that everyone agrees did he replied right so that i missed p v essentially found a reading of the two statutes that harmonizes the two of them right and did it made a determination of whether or not there was cause said that there was quote ample cause for terminating her making it terminations for cause they said this is a probationary removal i because they don't want they're not invoking the chapter seventy five for firemen's and douglas factors and all of that analysis but as i said there is the terminations packet that was presented to h r which included the different in seventy five dollars a one that says employee is an individual in the competitive service who is not serving in a probation probationary or trial period so she's not because she's a probationary employee and that's never been contested that takes her out of the chapter seventy five dollars notice a requirement and then again i would point  fact that the private sector statute does this regulation does specifically say notice in recent notice and the federal the public sector one does not say that or the federal one specifically and of course that i see that my time is up your enemy and   and that's all he said and just to make the hypothetical a little more interesting there was also a memo that says whether we're fine with the fact that she served in the military that's not our problem we just don't think she they could in good faith assert that it was just that i didn't fit in it had nothing to do with what i did wrong in the office and therefore that is not high enough to reach for cause that certainly would be with and i miss peace valuation and something that's court could review on appeal during the probationary period tone from what looked like a pretty strong personality certainly if there were if there were any evidence that the a j had heard that the reason why she was her maid was because she was on an extended military leave that would be a significantly different issue for this court there was again simple non federal government employee definition that's in twenty c f r does does not apply is accurate but the concept that  it didn't need to do what they did in the in the department of labor the department of labor needed to do that because there was no definition at that point now the nd point is let me ask you a question gives people the right to to appeal reemployment rights now you say or i would agree with the your honor that discrimination is key if that claim is being made under that does not require the employee to show discrimination or because the whole concept of the reemployment claim is that the employee needs to give time to be adjusted from military service to civilian service in the statue recognizes that in the regs trying to protect that so it doesn't until her determination that's a is  a question which i don't think was litigated in here but from the regulations the answer is that if you make a reemployment cl told he was terminated because he was an employee of the united states i think the position of the government is clear that in any point in time they could terminate or as a probationary bring my question that's a fact i don't i can't get into all night all i can tell you about the government's position is what the government said and did what they were thinking in their mind was not something i can i can address t right but when you are in military leave you have the right to come there and that in you series gives you that right and you cannot be interfered with if you have some complaints complaint if you have an alleged cause or anything else while someone's on military leave you have to really think that employee and then try to address those claims and the notice that people are talking about while of chapter seventy five all one etc has a notice provision the notice provision here comes in the cause language of userra and it sets forth in the nd requirement in both the twenty c f r and also the carter decision and fetch the notice those rights need to be protected in this day actually in the regs and the legislative history recognize that when people come back from leave they need to have a period of time to adapt to the services etc and they want to protect all of this is well thought out by you sarah and it's being ignored in the arguments that are being made b