agency should have used the current two thousand and seven for level of performance evaluation plan which contained different performance standards in critical elements and more importantly added a minimally successful level it just seems to me that if the agency had done precisely what you're advocating it should have done in other words establish the pip in early two thousand and seven based on the two thousand and seven vi standards as opposed to the two thousand and six cameras right that is our contention it seems to me that you were in another case one would be making the argument that that was improper because the pipa supposed to be based right of the pip was run off of now i don't agree with your r i would have been perfectly appropriate there usually didn't have to change its performance evaluation plan for two thousand and seven that was its option but once it did that it couldn't go back and revert to the superseded two thousand and six plan and you're saying and the harm to your client as a result of the discrepancy between the two is that he didn't have the opportunity to perform at the minimally successful level which we were avoided as being removed in two thousand and seven deemed to be unacceptable he can be placed into a pep and here since the two thousand and seven performance plan was given to him in december of two thousand and six they could have placed him on a paper at the same time in february of two thousand and seven using the two thousand and seven performs plant there was no prohibition against that then every opportunity to do so they would have the language you just cited a line you get the yet the pip has to follow the problematic evaluation no not that doesn't deserve to be flown evaluation has to be determination that the employees performing an unacceptable level but there will be no determination by the time they wanted to put him on the at and you're not suggesting they that now you can't have the people rely on the two thousand and seven standard you have to go back to two thousand and six right well i would argue no that they would have to wait we skim a reasonable opportunity to demonstrate that he could perform successfully on the two it it's just hard to understand how that's prejudicial to your client or wrong them was prejudicial again because he didn't have the opportunity to perform at the minimally successful level and the word literally successful level is defined in the two thousand and seven forms evaluation plan it's meaningless it was a backward standard that didn't provide any guidance but yet he was held to the fully acceptable standard rather than the middle east successful standard so it was clearly prejudicial well there's no allegation here that your client didn't understand what was expected of him during the pip and what it was for or my yes spoke again it was based on the wrong stand there and even when the pip was a stablished it was not clear because other things that are confusing but i understood that this case was not about your client arguing that he didn't understand couldn't perform satisfactorily ended it because he didn't appreciate what was required of the i thought it was quite clear that he did there were numerous  sphere and the whole process here was flawed because n z could have handled it differently there was no reason for them to do what they did they rather took a shortcut to take the the employee had difficulties in meeting expectations this is the minimum level of acceptable performance for retention on the job approval is necessary what this gives is no standard whatsoever and yet is a good chance that he would have been successful if they did give him that opportunity they never  they could have done what they did in the same timeframe but use the proper performance evaluation plan latency was also unable to distinguish between fully successful and minimally successful levels of performance the agency deciding official admitted there was a direct correlation between the eighty percent fair and failing of performance evaluation for the year and fact unable to explain what was the difference between minimally successful and fully successful performance and she conceded that the word occasionally which is used in the finding the minimally successful performance was in the eyes of the beholder but so and this court is really ruled previously and its major decision in the wilson case the term occasionally is meaningless because it requires the difference for a variety of reasons first of course the argument is irrelevant because it was entirely proper for the agency to base the pep upon the zero six performance plan keep in mind the purpose of a pip is that it's a performance  improvement plan improvement over what improvement over the standards that you failed so it was entirely reasonable for the agency to use the two thousand and six performance plan moreover even if the agency was somehow required here to base upon the two thousand and seven standards pipped can give content to those standards that can clarify any ambiguity so to the extent there is any ambiguity in the two thousand and seven standards it's the pip that controls it is kind of p intuitive is that not let's assume the difference between two thousand and two thousand and cantered eliminated one choir that you know there were five things you had to be doing and let's assume that the failure in two thousand  was on this requirement that no longer appear it was no longer one of the duties required in two thousand that it would be counter intuitive would it not to be having that that determine whether a person removed from a job would currently doesn't  require him to do what you feel to do in two thousand that right now that's true but that's very different from this case there's no dispute that dr paradigms job didn't change between two thousand and six and two thousand seven now with respect to the whole issue of the eighty percent and whether or not somehow inconsistent with the two thousand and seven performance plan keep in mind well again it's a pip that it's the pip that controls to the so to the extent there's an ambiguity use one of mr haskins arguments was not with respect to the eight percent or whatever but with respect to an i don't know what the term of art is the categories it's like a great age group and that there were more in two thousand and seven so that gave more flexibility so he wouldn't appear with well what he's saying is that there were four there were four standards four runs in two thousand and seven and three three in two thousand and six and that there's a conflict between the two thousand and seven standards and the pet because it's seven standards don't specifically mention the eighty percent requirement and our point is there's no conflict pip and even if there is some ambiguity  an eighty percent of his assignments on time that was only one reason why dr rick perry failed the pep another reason why you feel the pep was that he still had assignments at the end of the pep that were more than three months overdue and there's been no allegation that the zero seven performance plans possible disparity between what one of the latter he was graded between two thousand and seven and two thousand said no there wouldn't and again the only argument on that is with respect to the to the eighty percent now with respect to the failure keep in mind and during the pep she only turned in fifty seven percent of his of his assignments on time so he still had a forty three percent failure rate well that is not occasionally that is consistently failing to turn an assignment on time he did receive a mid year review two thousand and seven and what that means your review says it's a page one thirty one of the joint appendix that means your review says you failed to meet the first four of six of volume evaluation criteria in your pep and and you have failed to meet several critical criteria in your two thousand some forms planned during the first half of two thousand and seven so it was failing his two thousand and seven performance plan anyway support all these reasons we respect