for disciplining and removing chance this is not how you sarah is supposed to work the prima facia burden is supposed to be light and then the burden of proof is supposed to be on the agency had the burden of proof  know all she had to show was that her that if the agency was answering truthfully it would say that her military service was a factor and we have a lot of evidence here we have a pattern of these different incidents but that's not the question the question is whether she has established that military service was a motivating factor i mean you've got to show that and you keep arguing well know my i'm appealing that the burden should have shifted because it isn't like burden the agency should be the one that should have to prove what it would have done not been in the military and there's nothing in this record for example about how many investigators in the san diego office have been given a written disciplinary letter for for working fifteen minutes of overtime as an example that had the agency been forced to bear its burden which is the reason why you sarah is set up this way so that we don't disadvantage our men and women in uniform who are o necessity going to be bothering their civilian employers with the fact that they are taking off for military leave this is going to get under the skin of civilian employers  macmillan's case he was he was he had one pesky e mail with his employer he comes back from his military service he gets written up for that and then months later he gets his tour renewed and this court held not only not only that the that the agent didn't just simply remand back and let the agency prove actually awarded awarded mcmillan the result and required the below to establish a remedy the point being that these facts this this temporal proximity on this record is so strong in comparison to what we had in macmillan that that  is there anything in our case law that suggests or compels that we use a different rubric like the mcdonnell douglas or the kinds of you know analyses that are applied in discrimination law here that why should you sarah which the legislative history makes clear was designed to protect our men and women in uniform and to and to make it clear this is should be even more clear than that and they and then an age discrimination case or a race discrimination case that's my point and i'm merely making the point that when you have a light prima facia bird that chan gets over burden the administrative judge made an error by not shifting the burden to the agency for it to prove that chavis military service had nothing to do with the decision let me also say that this is a good point to make to make again with respect to investigations the e e o c is an investigative agency that for example would investigate general motors and in a race case well if general motors did no investigation of its own with respect to our race complaint that would be evidence of of discrimination here the e e o c is the employer and the e e o c cannot simply sit back and say well d l l vets investigates this we don't have to investigate it then no as employer you do you are obligated to do that otherwise we can draw the inference i don't care about discriminating against our men and women in uniform and so that's a very very significant fact here too to judge a readiness point that that there's that same pattern of temporal proximity there's no investigation by the e e o c as employer and it's very clear your honor that from the get go as soon as she gets there and goes away on that on her on her military duty they treat it like she's on vacation and when she comes back they say you've got to make up shifts it seems to me you're making a different argument tha at the legislative history of userra it's supposed to be even more even easier for our men and women in uniform than it would be to make out a race case or something like that under title seven so that's where my argument is that it should be light with respect to whether it's been met or not here i think that the administrative judge below made it a grievous error and she did so by not crediting the temporal proximity yo recall her decision was well temporal proximity doesn't matter because chan was doing so much military service your honor that's a very dangerous precedent and i and i urge this panel not to go down the road men and women in my time all right look can i just make a quick observation because i'm not sure maybe i misunderstood what you were saying or how the case was argued it's kind of difficult to do this by telephone but i think toward the end of your arguments or you were talking about the e e o c being the special kind of and kind of attribute it's sort of an intentional motive to discriminate against people in the military or that they don't care about  in the military based on military service and i think i didn't see that argument in your briefs i don't think that's kind of a necessary or necessarily appropriate argument to be made here given the legal standards workplace an employer has to investigate and an employer here see they know this because they're the ones doing the investigation of in my example general motors but here  employer did no investigation and had not been true in my example general motors the e e o c would be the st one to say that is evidence of intent to discriminate ok i take your here we are concerned primarily about mr green's motivation that's where the accusations are being made mr green discriminated or retaliated to mr green in may is pro sorry to interrupt but we're limited in time let me give you a hypothetical i mean this seems to me a bit unusual because there was a lot of military service at least during her initial period a rather lengthy period of time so let's assume we have an employee and we're dealing with one year for purposes of performance appraisal and that person is called the wait in the military for eight months of that twelve month period that they are performing their military service under your sarah for the eight months of the twelve months what is a practical matter happens that obviously the performance through the period is not going to be the same as another employees will maybe there's training that necessarily would happen that the boy missed because she was on service so what happened in that case where the just looking on the cold record the employer may have been justified because the employee in fact didn't meet the sufficient progress in the performance standards but it's a circumstance where the military her military service meant that she was away a lot she couldn't reasonably have done so what do we do in that yes do you see him in that case your honor the employer has discretion to extend the performance period and that is in fact what mr green did initially for miss china he are my hypothetical you you say the employer has discretion just asked me he can do it he cannot do it so what did what about in a circumstance in a hypothetical where the employer doesn't extend and he says this is the year period you haven't met the expectations and we all know that she couldn't possibly have met the expectations because she was absent for eighty percent of the period you say the lawyer has discretion suggests that it would be ok if the employers that too that said your job is that much me know your honor i meant that there was discretion to extend the performance appraisal period to give putting aside the question of whether or not it's motivated by military service if there's a showing that the individual decision maker is doing this because he's motivated by the fact that she's on military service then the government in violation of you sarah can you also comment briefly on the here short for the failure to investigate this you would have any comment on that yes sure on the board commented on that specifically and considered whether that indicated that there was any discrimination or retaliation in the picture and found that there was not the board pointed out that under this statutory scheme it's a responsibility of the partment of labor to conduct the investigation and in this case there was a showing that the agency the e e o c was completely co operative with the department of labor and giving them the information they needed i would also like to about mr green the director of the office and she explained that they had a close relationship that they were in communication all the time that she knew about these performances difficulties deficiencies of ms chong and she said specifically based on all the communications she had no reason to believe that mr green was lying to her so you know there's this reasonableness of the agency and this is not a situation where the decision maker totally ignores what's going on which i think they're trying to imply by asserting that there's no investigation now i'm not saying that what mr parker gonzales did constitutes what would call a quote unquote an investigation what i'm saying is that her testimony shows a very close relationship between her and mr greene reporting to her all these difficulties with ms jones performance and she's fully aware of them and then she makes her final decision and as i said she testified explicitly she had no reason based on all of her contacts with this mr greene in this long relationship and being fully informed she had no reason to believe it was l ok let me just ask you another thing i mean we've got several actions taken here are obviously the big one was the performance appraisal on the removal but she i mean mr chan received a reprimand on the day she returned from military duty correct yes that's correct your honor and a pep on another day that she returned from military duty correct yes sure so isn't this kind of an unusual case where there is a extreme proximity in time and why is that not compelling evidence of discrimination in each case you have to look at the the judge has to look at the record before him and this case the board is essentially judge and jury and looks at all of the evidence and in both situations the timing was explained specifically with regard to the reprimand which followed i period of leave mr green explained the timing of that the reprimand dealt and then she goes immediately on leave now mr green explained that he had to have the reprimand inform his superiors about it and it takes time to issue leave a reprimand is handed to the employee when they are present in the office and they are asked to sign it and in this case this chaunge refused to sign it but nonetheless that's a procedure she appeared she returns to work on the  nd that's the soonest time that mr green can give her the reprimand for her conduct back in july and then early august and he does so at that time so he fully explains the timing to the board and the board credits that explanation so just the fact that two things coincide doesn't mean that there's a causal relationship it might or might not but in this case there's a full explanation for the timing and the board made the same finding with regard to the actions that mr greene took in may of two thousand and eighteen and by the same i mean i mean similar your honor  he made a similar finding an explanation of the timing he credited the explanation the reason that she was out in the period up until i think it's  r excuse me i the period goes from april rd through may th she's out for military leave mr green explains why she gets the un satisfactory at that time the reason is because he extended the prior period of performance he gave her an additional sixty day excuse me sixty days to perform and then gave her an evaluation in december of two thousand and seventeen then the next evaluation is due in may of two thousand eighteen and that explains the timing and the board except that explanation for the timing and so each case is looked at in the context of the record that is presented to to the decision maker which is the board in this case which is saying is temporal proximity is not a reliable indicator of mr green's intact and the board concludes no it's not it's not she hasn't shown by a preponderance of the evidence which is her burden that mr green is motivated by hostility towards her military service or that he's retaliating because she filed a complaint and so it's the board's duty to act as the jury and apply the preponderance of the evidence test  i could go into some of the other issues that have been raised briefly i'll just say with regard to the discrimination area i think what's really being missed is by a summary judgment motion on the part of the employer and that's very very different from here where the board is sitting as judge and jury and is deciding where the preponderance of the evidence lies and finds that the preponderance of the evidence does not show that mr greene was motivated in any respect and i am ou by discrimination against a military service or retaliation because she filed usera compliance and here there's faithful application of she hands factors i've gone through temporal proximity the board looked at all four of the she hands factors found with regard to the nd one that there was no inconsistenc between mr green's actions he was consistent in all respects there's a castle analysis for she him factor three of the two three and two have remarked that's a lot of leave days the board considers that and concludes that that's not evidence of him having a hostility to her going on military leave because in short actions speak louder than words what mr greene does is ensure that she doesn't go on the intake calendar for july having become aware of the fact that she is going on leave for a lot of days or at least a lot of leave days or anticipated according to her calendar the nd remark he finds based on credibility that mr greene didn't make the remark the court just to page twenty two of the opinion where the board says specifically that for her initial case she was not required to show that she had satisfactory performance thank you your point that the then the review should be the full year based on the four months they have it's as if the service member has not gone and and so that is why the the even the obligation to make up intakes is a violation of you sarah and so that that starts the that starts and spoils the relationship from the get go we should not even be talking about mr green's intent to discriminate at all until the showing the temporal proximity that we've shown here and the lack of investigation all of that meets the the prima facia burden that then they should have then been shifted to the agency and then we should then be talking about mr green's intent and we should be talking i write them up just the same or when charging parties make a complaint i don't care about the truth of those either i just worry about the fact that there are complaints and i and i put it into a pep for those people to