absent is protected activity under the whistleblower protection act the board did find that he made at least one protected disclosure under the w p a and that that protected disclosure was a contributing factor to his removal in the in the blue brief fifteen you argued that mr smith's the ip quote did not establish any specific goals or deliverables but the improvement plan  honor he wasn't required to take specific courses i think there was a general recommendation that he take some training there was no specific requirement in terms of improving his communication and there was no measurable goal by which that could be deter  and i think we referenced that as an example of kind of the underlying animus that was going on at that time but in terms of the board's finding that the g s a had produced clear an i think of your argument in the following way if you look at what amounts to the single paragraph amounting to which two sentences address this question the first is just a conclusion re assertion that the agency would have taken this action even had there been no protective disclosure and then the next sentence says indeed i find that the defiantly disrespectful misconduct described in charge one alone would have justified his removal i take it that part of your point here is that going from that first sentence to the second sentence actually changes the legal standard agencies refrain from many actions that they would be justified in taking and that's not the question under twelve twenty one two the question is would the agency have taken this had your client not engaged the particular december twenty fifth teen eighty three page protected disclosure and i think maybe you have asserted other protected disclosures as well and that question it's not analyzed at all  j i agree your honor and i think that's the fundamental issue that we've raised here and there is no discussion of of any of the first two par factors that the board must discuss and there has trying to you i correctly understand that if it were possible be you could avoid analysis of the car factors by just looking at whether the charge had been proved and whether the and what the douglas factors were analyzed and would there never be a whistleblower defense in these kinds of cases and i'm just i'm trying to figure out and wrap my head around exactly you know why it is that these two sentences together so a lack of analysis or the wrong analysis will certainly in a situation such as this for mr smith has raised an affirmative and under that of e p a those contractors must be must be applied  mean the case law is clear on that and there's it's error on the part of the board to not apply those factors and again there was simply no discussion of mr mr smith's countervailing evidence in weighing the strength of the agency's evidence no discussion of or analysis of any motive to retaliate on the part of the management officials if we find that the car factories are missing we send  a similar position having sent complaints to higher ups outside the agency on matters that would constitute protective disclosures did you identify anybody else who was similarly situated in that respect we did not or are so it's i mean well what was what was there to address that wasn't addressed on that particular fact well certainly there again the case law is clear that the the agency parents the risk of there to mr smith that didn't say if you're going to communicate with higher ups show us what you're going to do say first so that we can at least tone it down or change the language or correct things that you may have gotten incorrect it said you need our approval the use it knew that as a order contrary to law in particular contrary to the whistleblower protected disclosure outside of his management chain or even within his management chain that director required him to get a supervisor his approval or doing that and i gather some of the theme in your brief is that  that that's correct and that's really the focus of our kind of argument throughout the brief about the lack of contacts in the lack of discussion of contacts in the in the board's decision and this really also highlights the board's failure to make any findings and with regard to whether mr smith made any any prior protective disclosures the board found that his december twenty fifth seen performance diagnostics report was to protect the disclosure  he had alleged and produced testimony to hearing that he'd made very numerous similar disclosures in the two or three years leading up to that particular report the same types of issues that he grange and it was really he argued that or an doctor's laptop when he would leave on a daily basis just because you know given his his disability he lacks the dexterity to do that and that sense i think mr smith is his own comparative we didn't make this argument in the brief but i think it's a fair way to look at this for a number of years this was not an issue he did not have a formal accommodation i think the board fell to him for not having or wanted a formal accommodation but he had an affective accommodation for a number of years and he testified that the management officials miss gladman mr stasi knew that he didn't and his laptop and that protective activity can i ask you about one of the other specifics which i just i guess i don't know enough about the underlying details one of the charges against him was  disappearing in order not to work on weekends correct or on what kind of who order somebody not to work on weekends perhaps somebody doesn't want to would your client have gotten more pay by doing work on the was understand that government employees are not supposed to work off the clock period even if they want to donate their time yeah it has nothing to do it over time or accommodations you think no or building facility or anything on the weekend as i understand it is just a simple policy you're not supposed to work off the clock it was a bit i wasn't reading your time but i would just say was it a policy that's like to everybody as i understand it it did but here again i'm sorry i'd like and context you know i was in the justice department for a few years and we see justice department work i bet they're working more than forty hours a week can't be that they are forbidden by statute to work the laptop mr smith said you know he had often worked on the weekends in the past it wasn't that unusual i mean here he explained that you know he had put together a report he was waiting for one little piece of information because this piece of information over the weekend i pout i think looting sentence on its report and sent out the e mail but again none of this weekend work had not been an issue prior to this protected activity and  it only became an issue when the agency was looking to remove him and we argue as the board found mr smith's protecting activity was certainly a contributing factor to that decision but back to the communication restriction the other the thing i wanted to highlight in terms of the context of that is management issue this communication restriction to mr smith said he couldn't communicate without their approval at the time he already had grievances related to what we argued were previous protective disclosures to resolve those pending grievances the g s a issued him a new position description that said he gave him made him a senior financial adviser gave him more independence so that he would act under administrative supervision and that he could communicate widely throughout the g s a outside of the office of chief financial officer in which he was housed and it was in the context of his new position description and how mr smith interpreted it and the authority it gave him that he was having these contentious communications that underlie charges and one of the five specifications under current one and again the board did not discuss only the context of those communications in light of communication restrictions the position description  that gave mr smith the broader authority and again that is the time taxed and and the board simply did not discuss it let alone give it the end up review that it was required to do and i see that i recognized that he had challenges with effective an accurate communication and the ability to follow supervisory instruction and that as a result of his actions you took steps to monitor his actions that is isn't it amazing coincidence that they recognize those challenges when he began whistle blowing i it might or might not be the record this is largely absent of this pretty two thousand and twelve statements but i think every function of it was just as he started to advance and started to take on a more senior role i mean this man had invented twenty years that come up from a lower level to much higher level taking on more more senior roles they noticed that there was communication just was not up make sense it was certainly his supervisors certainly could not follow theirs there were efforts to me actually to in many of mr smith's me patience to follow through trying to implement is the rational he couldn't understand it they couldn't match his figures they didn't make keep policy existed and that he failed to follow it what about his his claim of disability and an effect of accommodation that for the past five years he had been permitted to accommodation like what so that he does it does the g s a dispute that his supervisors knew for that period of time that he was not removing the current i am not sure of that your honor but certainly there is no direct evidence the supervisors can do you're sure you must be sure that it disputes or it doesn't dispute i certainly do not know if for that entire period of time that the supervisor's whether they knew whether he was removing or not removing  his argument that i'm conceding what i'm saying your honor is that he certainly never sought exception and he certainly actually never questioned his supervisors as to whether or not they condoned it whether they knew that he challenged with on the record does a record say me thing about he said i've been leaving this this in the p r b card here and laptop docked for the last five years and my supervisors knew in their testimony there is no safety we did for five years and did nothing and knew of it why isn't that defacto approval well certainly an issue raised from the security perspective to the supervisors that's when they started having problems with it and that doesn't touch in your favor as far as i'm concerned the record reveals that mr smith description was change in response to a reorganization of the office of the chief financial officer the position description was then publicized throughout g s a in response to the e e o c in response to settle a erode grievance about relationships with customers and coworkers improve collaboration with team members how are they supposed to be measured well certainly that is the he was not actually removed for filling people would not be tolerated and certainly his statements to mr versus his statements in emails criticizing that is going to knowledge of the programs that they were managing specifically laid out what level three communication was and one thing it within his position description was one that was expected was to communicate the civil and professional manner and i think that that largely would be what they would be looking for is  and certainly when one is analyzed in great detail is the severity of the agency the evidence and the severity of misconduct likewise the agency's motive to retaliate and the rationale for the agency's decision to remove mr smith determination is permissible to rely back on that without restating everything that you state in the first part of the decision right and then that gets and then and then this paragraph and this with and therefore find that the government would have done this anyway but it does not mean less than your five you have four or five pages of discussion that near the end of your read brief that try to do what surely you think it would have been nice if the a j did well certainly be as i could have said and provided more simply saying do we know it was not what he said it was considered in the decision or well it isn't except except that that there are really two sentences here and one of them states the conclusion and then the other changes the standard into something that from the car factors that also how do we know that what you're saying is what they concluded we just don't know it stand it seems as if the test applied is incorrect because the car factors were not applied instead did not actually his information was about the management of the programs in which he administered it with outside of his chain of command what his supervisors had a problem with and this is very clearly testified to by the deciding official  lot of sense it also makes a lot of sense that in a hierarchical organization in which ultimately the president has control of everything that people working for higher ups have to be substantially respectful and civil and polite and substantive and not too ornery and not get in the way of things you can't run the government any other way nevertheless the question here  were such that considering the level of seriousness about which one might have very different views of at least some of the charges that were sustained whether removal would have taken place not whether it was justifiable on those on those what would your on those charges whether it would have taken place had he not in gauged in these protected disclosures and part of that seems to me to be that your argument about the miscommunication is the tone in accuracies i don't see how that justifies the december and may december twenty four order you must get approval from us before you make send communications outside the office as was explained mr smith and as the images are just part of the testimony of this idea official opposing people the supervisors explaining that restriction it was not intended as intended at his official communications only the extent he was producing documents and reports that intended to present themselves as the official position of the office of the chief financial officer notwithstanding your new position description what we ordered back in december still stands so where is the official statement to him of the you must get approval on what the original communication so this is near the third paragraph above the thanks as a result of these concerns effective immediately any communication that you wish to transmit virtually or electronically to managers outside of language does not contain a limitation that you were indicating might have been intended which is official communications from you speaking for the office but what you do to what his supervisors testify that it was that they understood he was discussing what was conveyed to him and that admission of judge you heard that testimony did credit their explanation for it which was that was their or their testimony which was that it was directed solely at his official communications included words like i and we were presented as the official position of his office met the standards that we would expect to of all in plays a million it into my comments which switch topics for a second as you just continue explain what's going on with the don't work down just as far as i understand it was just a uniform policy against ensuring conservation of arm and resources and making sure that people weren't performing too much work off the off the clock in this it does disk apply to everybody as far as position but certainly and in many cases and under the atlas a you cannot work off the clock without being paid you have to be compensated for it certainly was was he in a position as to which that would be true i do not know record and i do not have an answer for you as to the specifics of that i correct in understanding that the only instance of working on the weekends which was reprimanded and charged was just an instance where he says he received a communication and then forwarded it to his supervisors where he explained that there was minimal work or there are additional instances in which is charged with working on weekends in the record the only charge is of that one instance and that the only one that was documented and discussed in the record i just cannot speak to whether or not there are other instances but according to the charge itself it is note that he was repeatedly advised not to work on the weekend