hiring man said son if it was up to me this harkens to william strong's email to paul about it's worth told mr strong the vet had to be terminated immediately while the the decision maker in this matter he was the one who signed the terminations letter that mr thompson who drafted that they submitted to me on february fourth of twenty eleven and so call the boss worth was an attorney in atlanta at the headquarters of region four who provides human resource advice to the managers and supervisors throughout region four she worked under deputy regional chief administrative law judge kathleen mcgraw who explained to paul bodsworth on buzzwords querrey about why it is that a veteran need to be terminated in the first year rather than the second out and an hour to be terminated that wouldn't be in of sarah violation if that was the facts here would it no your honor it certainly wouldn't and i see that fact of the issue as i view it if i may is that here we had two employees one myself and the other whose banks both of whom the agency was contemplating terminating according to mr strong we both had performance issues that's why he sen made a fact finding to that extent of my mis remembering the record you're not misremembering the record judge more that's absolutely at odds with the evidence of the record and even mark thompson testimony the emails that started this whole thing in fact said that there were two attorneys who they were considering who mr top excusing mr strong was contemplating terminating because they're not performing up to the standards that we expect and that was me and kind of banks if you look at angela banks performance the agency contends that the essential functions of the position excuse me are to write legally defensible decisions in a timely manner angela banks had one case for over ninety three days she had other cases for seventy days sixty days fifty forty thirty and so this essential function that they're s isn't it also true that there was a lot of other counter evidence in the record shows that ms banks was doing more one more production when you were or just more work in general through other metrics so that we couldn't necessarily say that the story is so compelling that mr banks was as equally behind his you were on certain metrics well your honor i would say that she was at testimony about the deed of yes i from august until february when i was terminated if you look at the whole year's performance guess i performance metric which the agency contended wasn't even a performance metric and which thompson a strong and mcgraw and bodsworth and norton over hours and hours of deposition testimony insisted was not a performance metric was just a tool for assigning cases come but if you look at that and assume that it is a performance metric and you look at angela banks you find that in five out of ten months she didn't meet one hundred percent that the agency contends was so essential to measuring performance so the agency wants until august and so that if your argument thus far has focused on whether there's a usera violation if i understand the law correctly in this space even if there is a use or a violation if the agency establishes they would have taken the same action regardless of the prior military service then that action is ok right there isn't a problem and i woulda see that fact your honor it's not a fact it's a statement law but on page twenty of job so what do we do with that that is a fact finding by the board based on testimony that expression he finds to be credible where he claims that basically anybody who was under performing at the level that he represents that you under performing at if you were fired any person whether they had one year or two years or ten years of probationary period he would fire them at that point in time it's a it's quite an a in the certain and the killing is very clear on what the judge needs to do in order to make you know credibility determinations in this matter what she did was saying well they all seem to be saying the same thing at this hearing but she never really looked to see whether or not after the after the one year mark in other words the next day i would have fallen under the performance metrics that would have actually looked at whether or not i was performing my work in a timely manner i even under the seventy benchmark it would have started looking to see if i had been performing my fair share of the work but before that one year none of that applied and so at the end of the of the hearing testimony judge th j i was trying to elicit testimony about what would have happened there and she acknowledged it the next day i would have been under a focal formants plan and all of the protections of an opportunity performs it's got successfully notice and the ability to work under that for six to eight months before the agency could assess and say well you're not meeting this standard what the agency wanted to do here was look at my performance from the day that i was hired and then based upon that before they sent me to training before they provided accommodations say well you know he's not performing fair share the e mails over and over and over again i feel like marco rubio my my my mouth  the e mails over and over and over again show that they're applying this in the federal standard to me and buzz worth repeatedly told thompson and strong that fair share in that the ws i absolutely did not apply to me who has the draft decision at the beginning of the appendix for the respondent to conspire they actually discuss changing their rationale to say that i'm not and hear if if the federal managers were seen that you were not making the numbers than they needed to try to project out well of would you ever get there once you reached full employees status and if they lost confidence that you would be able to perform under that the forms then isn't there a problem in them basis for saying ok and this isn't the kind of person that we want to keep on the team your honor in my rebuttal time do you mind if i know yeah it was my answer well the problem with that presumption is that when we look at all the other employees in raleigh owed our and when we look at all the other employees throughout region for these metrics that they were applying to me apparently they were applying to other writers because you have the w s i numbers that are in the teens the twent thirty's throughout the five years that i was able to obtain the data in four years you have people that are fifty days seventy days eighty days into the seven day benchmark and yet strong and thompson it made it into position they're not even sending them emails so these metrics that they're saying or so important and that they're roughly applying to many assuming what your honor says is true well that's fine we should project and see if an employee is going to work out but to apply a different metric to me than what would be applied to all the other employees to me seems  towards the end of their probationary period will look at how that employees performing of course the agency was looking at multiple employees at that time is this reduction mentioned so it wasn't clearly a focus  thought maybe that be your answer and i just wanted to clarify that because it seems to me that your answer is because he's a veteran and because he's a veteran he he has this one year period and if we don't fire him before the end of that one year period then he'll have additional benefits or or rather it'll be a bigger burden on the agency to keep him beyond that one year why isn't that a focus and the decision to terminate on the basis of his veteran status for your honor and just income so one element of the record i would like to point out that the agency was thinking about another employee at that same time as well and considering her work probationary period i mean the e mail say we have two employees who are not working out that's what the e mail at twenty two twenty five says they're not working now and two twenty six it says neither of them is performing up to the standards we expect but then suddenly there's an e mail that says that has to be terminated in his first year for the other it's two years don't forget when the time to get these cleared through h q and then all of the e mail started focusing on just that and the fact that because you had two years with the other employee so you could play out a pack or a performance improvement plan i mean they have all you know about five different acronyms for what i tell to a performance mcguffin they were both the e mails lumped the two of them together initially in all respects the first e mail as we have two people that are not working out what do we do the next e mail was in either of them is performing up to the standards we expect then when you're told once of that we stopped paying attention to mrs banks under performance whatever that may or may not be and we started focusing exclusively on the well i think there are two parts to it one is that the record shows that there was substantial evidence that mr banks didn't really have this sort of problem that mr mcguffin was having with performance there was testimony that that the concern that they had had about her related to the way that she was making requests for leave with her supervisor and there was a basically interpersonal issue going on and that once they counseled her that was quickly resolved in addition and the evidence shows that she had she was performing much much better all along a couple of measures that are discussed about and discussed in the record ways th terminated him because he's underperforming to the terminate him now because if he gets beyond another year we the agency are going to you have a greater administrative burden and that is veteran focus me ask why does it matter why does it matter whether he's got one you know the two years well why does it matter i mean it's something that when when individuals in the federal service are having performance was cognizant of the performance period but it is not it's not it doesn't show animus towards veterans to be aware of what the performance period is and that the performance  can also go to the board but if the veteran goes into the second here then the veteran acquire traditional additional rights additional benefits and it's those benefits that it seems to me the agency is trying to avoid because if you fire him later then your burden is greater it would be a bigger problem on the agency to fire him then at that point it seems to me that the decision to fire is focused on  status well the decision the managers were considering what them what the a probationary periods were because that's something you do if you're having performance problems with it let me ask you this question there's two compar i'm sorry there was no compare her that was offered that had to have been funded within that one year period well not not exactly within the one year period but there were several i mean we do see in the records several veterans being looked at in that at that period and that those two individuals were fired shortly after the one year period that they can they considered whether mr banks was having issues around the time m they were considering mr mcguffin performance in his own office and then they consider those other two in another office sort of slightly later i'm sure i have two concerns about this my first concern which i'd like your thoughts are are it putting him on packs of these homegirl or performance plans that would give him a chance to demonstrate that he's meeting the standards and then it was suddenly reduced to just give him two weeks because we've got to hurry this up well just given two weeks doesn't sound like there is any legitimate desire behind it to see him improve help him improve recognize his improvement these e mails read like that training program was entirely pro forma that's the way they were and then when you combine that with the fact that the standard is demonstrating the capacity to learn and when during that three week training period especially four weeks but by the way they already wrote the notice of removal of the three week period so they were lining their ducks up before the four week period even expired because four weeks was the d day right so three weeks into the period you stop raving at eighty percent his prior statistics have been sixty two thirty seven forty four thirteen thirty six forty fifty five sixty three to forty six so during the training period when he was getting this more personalized service which is the whole point of a pip to put someone on a program and help see if they're capable of  improving he improved dramatically his number his highest achievement number prior to that in any month had been sixty three percent and during the pip the training program he achieved any percent and if the standard capable of learning doesn't i don't understand i'm confused well your honor i mean the issue here is really whether whether the agency would have get approval you don't think those emails indicate the decision was made in advance of the end of the period well the record certainly shows that there were you know mixed feelings but overall a desire to give mr mcgovern a chance if you look  think green with you that his performance could be viewed as completely unacceptable and i don't have a problem with his per his supervisors having sought that when they said we have two people that are meeting the standards that we expect the problem is with how it got handled from that point forward it doesn't seem to me that there was any legitimate opportunity for him to demonstrate he was capable of meeting the learning standard thereafter seems like the decision was made and it wasn't made for mr banks or other people because there was a longer runway on those employments and that's the problem this looks an awful lot like you decided to hurry up fire a veteran not actually give them a true p e mails because he was a veteran of one year period and he didn't want to dish no rights to attach so we're not even going to give him a chance to actually demonstrate he's capable of learning and to be clear it wasn't required so the fact that the agency  decided to use a pip alone shows that the agency was you know at least trying to give him an opportunity in addition during that period between when the record shows that there were concerns at the time of his performance evaluation based on the comments not about you ation he was allowed to continue working with a mentor or the agency try  having trouble i mean that at that point i believe that was on the pip emails at the end of the day if you can't get it done and and explain what's going on but he kept his mentor in the office much longer than the other new hires  banks and miss brewer and that was actually one of the agency's concerns is that he wasn't progressing towards independent work which is one of the things that he was supposed to be showing he was progressing towards their testimony for that by mr thompson i know i know your time is up can i ask one more question and then i think different i might have once he's looking like he wants to ask you the question my last question for you is the agency in deciding to terminate this individual applied the right standard that should be applied to namely it seems to me the right standard and correct me if i'm wrong should be a learning standard as opposed to a fair share standard because all of the documents were generated originally with regard to removal according to a fair share standard which if i understand it right is the standard that would normally apply at the end of the two year period that there is a training period you know one year two years right and that there's a higher standard that you apply to an employee at the end of the two year period to assess whether they're capable of doing their job than the standard you would apply the end of one year period and i am i right yes your honor i think there was some confused use of that terminology in his performance evaluation and then there was later testimony in the record where the manager and i think it was mr thompson although it could be mr strong explained that he meant you know  pressing towards that goal of being able to handle your fair share and that mr mcguffin was not progressing towards being able to handle his fair share in that he was and he wasn't not working independently and that that was the  concern you know although he did use the wrong terminology at one point and is that does the evidence bear out that you think there's substantial evidence for that given like i quoted you all the percentages during the training period he clearly had a pretty substantial increase in productivity do you think that the record bears senator simpson provide substantial evidence for a fact finding that despite that he still wasn't demonstrating that he was working towards that i think you know i think the agency yes i think the age of the agency still had concerns he still at his best was performing well below the other attorneys he had hired at the same time but they have if he had a two year period when they have put him on a little longer of a know that the ministry of judge made credibility determinations and fact findings that the agency void have treated a non factor and in the same manner under the circumstances  mcguffin has not come up with any sort of evidence to overcome you know this sort of credibility accepting some of the e mails actually support that testimony and all and in fact all of the e mails directly he was completing you know it kind of in the about half of his work for most of the year in addition there were more qualitative reports supervisors testified about having spoken to administrat judges who were concerned about the quality of his work and so all of this indicates that the agency had real performance concerns there's not evidence that shows that the other individuals that were hired at the same time had those concerns and you know that explains their different treatment that have been withheld from non preference eligibles the if you look at the pending stairs agency's own personnel policy manual which clearly refutes this notion that i was in the one your trial period the m s p b when it remained in this case back to the a j had already determined that i that i was serving under a two year trial period the only difference was that after one year i would obtain these benefits seven eight nine months this person is not working out means to go and there's no reference or discussion to the person being a veteran that certainly isn't a violation right now your honor and what if there are e mails that say yes if you walk where one federal manager tells another yes you can go ahead and terminate the person if you want to think you will but just to let you know the one year three for the first and is in two months and just to let you know in the one year anniversary if you choose to try to terminate someone at that time and all these appeal rights  i'm not the judge but i would suggest that it's not i would suggest it's not concede that but because here what we have is two people who were explicitly being compared and so had the agency terminated the manager expressed in october of the result of one year anniversary i so i think your honor that what it would boil down to is whether or not the intention and that's a factual question whether the intention was to deny the veteran a benefit of employment based on this veteran status so if you're solely looking at this from the perspective of is it my going to have to do more paperwork to get rid of this  poor performer then i wouldn't see how that would be you sarah violation but when you take what happened here and you have people contemplating what's easily acknowledged as a an employment for a veteran and then upon that acknowledgement proceeding to terminate because of that then you have a problem like had they filed prior both of us everything would be it would be fine if i can turn briefly issue that judge moore you raised mark thompson admitted in deposition that he had already decided to terminate me by december eighteenth it's in his deposition at page one eighty five which isn't in the mcgraw had already telegraphed to them that they needed to get a get a move on on this and at that point mr strong said listen we need to couch this in terms of engaging in learning go post some judges including one who was in on the e mails judge dogs and say that he's not engaging in learning so we can terminate them smart you go ahead and start working the draft and so again the timeliness and pretext issue both of those decisions the judge hall and the judge does decision or after december eighteenth one was judge calls email was on jan to january twenty sixth when they're already sending drafts down for review