central issue in this case is whether or not mr makki established credible evidence on several matters that military status was the motivating factor and the reason i say that is because the problem to me with the m p opinion is that both the m s p be in the l j sort of looked at the case and concluded backwards for she and that there was no evidence to establish discrimination so therefore my client could not prevail let's look at the individual issues that arose because i think the key sneesby taken as a whole my client joined the yea by submitting an application a year and a half before he was hired on in that application he indicated he had service that could qualify as law enforcement service but the issue wasn't whether a qualified the issue for the judge and for the board was whether or not mr makki by accepting a g s seven had waived his right to essentially protest the issue and we know that because the evidence presented at the hearing itself was that mr mackey's testimony was credited by the judge and there was no contrary testimony to show that he couldn't qualify as a nine and couldn't been brought in as a not so i remember correctly that mr makki applied for the g s seven position and he was given the option to withdraw his application and apply it for the g s nine position jury here was that he chose not to do that or whatever that correctly well i wouldn't say he was given the option the way they did the way that it happens he applies for a position the grading is done at the time he comes on board and he was told if you don't want the seven you're going to have to reapply and it might be a couple years and the reason that's significant your honor says because thirty seven years ago in secret person civil letting the same issue was raised for african american agents who are complaining that they were given the same choices and they're the judge robinson said in that in the district court that started almost forty years of litigation when decisions on greeted entry are made in a subjective fashion without objective standards guiding the exercise of this question there is great for abuse and she found that the manner in which the da was grading ages doing the sort of after the fact that any writings or standards or anything they could go after was an abuse and was in fact an expression of discrimination itself no different here because what happened is when the agency was asked would use actual evidence of what their great extent is were they had and in our supplemental appendix they relied on mark well who's never really doesn't need to talk about that issue he was going to up motions and i asked mr webb the penultimate question i'm asking you do you know i mean i want to make sure i understand your role as a witness here are you testifying that you have knowledge of how the agency selected nine versus a seven for an incoming position yes or i do not now he raised the objection of the time that his military service should be credited that he had won for some experience in the coast guard as a boarding officer and as somebody that worked at hearings and if you look at the actual application of talks about things that are kinda law enforcement  testified at hearings he presented evidence he gathered evidence he helped formulate some suggestion for penalties things of that nature he had that per year and then he had additional experience of supporting officer so when he was hired he called joe love the recruiter and said look i should be hired suggests nine and at that point he was told if you're going to do that we're taken as we're revoking this position you have to reapply to the next class the military service like because this is where the difficulty arises class who that civilian law enforcement over a year or more were being given to us not and that's the issue did the d a look at military law enforcement experience as less significant than civilian law enforcement experience and he presented evidence at the hearing yes because my class members that were civilian law enforcement got nine when i got a seven and when i protested that fact i was told that i would need to be i would have i would lose the right to come into this class and the only argument advanced by the by the woman and then protested later on it doesn't mean i have waived the right because i took the job that would turn discrimination on its head and that's just the beginning of the process then right after he has activated its long term  reserves duty which he would switch back and forth and again these go i sure looked at their record to analyze this and it's my understanding that they transferred a transfers occurred before september twenty seventh two thousand if there's a problem with him and that occur it connection with his military service so we then presented evidence and again the issue is did the judge credit that testimony and then did she analyze it correctly understood the fact that two of the transfer before any military service does that in any way under mind the claim that these transfers were just because of military service no because there is some legitimacy to transfer new agents in between sections the problem is the days to return to duty following the extended deployment and the agency itself and its employee military leave activation fact answer and when specifically what she denied that he was or is it right assume assume that you have that right what's the consequence he was told while he was on military service if you didn't return immediately after active duty he'd be in trouble there was an uncontroverted in fact we had another supervisor we had another employee he did reach or he did he was forced to return so what what harm well he was denied the ninety eight the whole purpose for the recovery period is through recognized the difficulties of active duty military service and allow you to say you don't suppose he is right to the ninety days was violated by being back time that he could get as potential leave to compensate him for that loss i mean the whole purpose for that leave is to recognize the impact of military service in the transition needed otherwise congress wouldn't have imposed it and the only case that runs against it was an eight hour case or some language change in the statute i'm forty three i don't have any i don't believe so but i'm not sure that even if you accept third circuit's premise as a right that that does much because the agency itself under its own what the supervisor presage did when she took their right away or the benefit where she said you're going to come back she was even told point blank by another person she could not do that and she was told it was a violation of you sarah specifically by another employee and she rejected that and when he came back to duty what did she have him do the necessary for him because back right away so he could cut ribbons and make dollies and put out postcards so again i think that shows that his military service was the means in that redid the evidence and said well this doesn't really rise to the level of a hostile work environment but they didn't look at the cases a whole they didn't look at it that if you look at the cases we look at it from the outset to today my clients military services reservists  caused him to be placed in positions that are noncompetitive and we think that that's that's the issue i mean what is the issue for what is the issue for individuals in the military if they know that subtly or not  instead she blasted past that she said well there's no discrimination she didn't do the balancing test that she requires the significance of that is unlike title seven this court has repeatedly said that once we show military service as a factor as a motivating factor something they even really much of a discussion she didn't really discuss presages the issue of cresset's being told by another employee that she was violating new star and so you are as we think that the problem with the case we come to it is that at the end of the nothing because you take away that the way in which the evidence presented and she and ultimately as all that discrimination lies about how evidence is presented who has burdens who must produce what that was not done here we ask you to certainly not true and the record reflects that first as it should properly be done the and then afraid of judge looked at whether mr markey met his initial burden of showing that the agency discriminated against him basement military service and made a factual finding that the agency did not as to his claims regarding specifically discrimination and i agree that the case should be looked at as a whole mr maki has been promoted many many times he is from what the record reflects now a g s thirteen he started the g s and then his supervisors have glowing remarks to offer about him shows that he has received the record shows that he has received good performance evaluations and that he has been delayed in receiving any of his promotions during the time that he has been employed  unlike you to help me understand what role that plays in this case the ninety day leave there is the assertion if he made it that he was entitled to ninety days of leave before he had but one of the claims was now understating with four reemployment claims and the administrators judge correctly determined that that particular claim was not raised and was not properly before her time for him to decide so the ninety days leave aside was assume for a minute that was fair to say you just didn't preserve it well what else is there to do with the statutory assertion that forty three twelve any together give a  ninety day period to return to work served as evidence of a hostile work environment but the administrative judge and also the board found that he could not meet the standard for h work environment because there is no right to this ninety day leave period as as he claims that even if we were to conclude that actually there is such a right to disagree with the third circuit to you on that question draw or not in the ninety day context of the eight hour context what consequence would that have for this case it really wouldn't change the outcome because what he requested it was a ninety day period before returning to work but that's not a paid period there really is no remedy for that at this point w what we have to remember well the court certainly can determine make a legal determination whether remained is necessary and this case remain and certainly would not be necessary because he can't  really he hasn't articulated a reason why remain and would be appropriate for the hostile work environment clean he just hasn't even then it's an issue of burden of proving that the agency had some sort of negative attitude toward his military service such that he was subjected to a pervasive pattern of harassing behavior that altered the can terms or conditions of his employment your view is that and the way that the four are reviewed that particular point the entitlement to ninety days was under the hostile work environment sort of umbrella and while the court did not rely on that case in particular it's certainly supports our position that there is where we are if anywhere in the board say one reason that we are rejecting the hostile work environment claim is that he in our view he actually had no such ninety day right it is if he didn't rely on that then whether or not he had such a right would not be make any difference in this case the board didn't rely on that finding specifically as it relates to  it can you address for a minute then i guess the merits of this twenty three twelve point and here here's i guess my question twenty three twelve correct everything that needs correction what i'm saying twenty three twelve you get your reemployment right portion of and on the vote long term longish term military service says what you should shall do is report within i guess ninety days why together does that not me you have a right to your reemployment if you comply with that nobody can make you do more contrary to what the the purpose of forty three twelve is to secure reemployment right for a returning military service member and it does in fact stand for the proposition that if you comply with these notice requirements then the employer must promptly reemploy you a right to which you are entitled under section forty three thirteen no where in the language does it say that the employee is entitled to a ninety day period it in the sense that it mandates the employer to allow the employee need to have a ninety day why  reemployment such employer in accordance with the provisions of subsection he and he got if any of the relevant one it yes if it's a different paragraphs according to how long you are going to write yes your honor and this particular paragraph that's relevant to this case here the employee is required to submit an application for re employment with the employer not later than ninety days  at this does is it prevents an employer from the lane or denying a returning military service members employment and typically in the cases that i've read it's that the employer is somehow trying to deny or delay the employment whereas here mr markey is trying to sort of flip it on its head and say he's trying to delay and he's saying that post two thousand and four statutory changes in act matters since two thousand for being the date of i think gordon on the search circuit which does you know quite clearly answer this question in a in a way  supportive of the position that you are you are asserting has there been i mean either changes that would require modification or justify a different result than gordon or have there been reenactments that i guess one term what one might use is ratified or i am not aware of any changes that would undermine our position or run contrary to how gordon third circuit has clearly petty petty the metropolitan government of nashville davison county the citation is five thirty eight f three d four thirty one that's two and if you're honest i don't have any further questions we ask that you affirm the question of discrimination is only decided after applying the burtons so you can't the only factor the only emphasis on the factors was military service involved in the decision making we don't have to in the first  discrimination otherwise there wouldn't need to be a standard the second thing that says on the reemployment right is again i think whether if i accept the agency's premise and accept the premise that it wasn't pitched the right way which i disagree with because it was raised and you know we cite in our case law that you can conform evidence to proof and i'm not sure there's any case that says that you have to specifically cite the type of discriminatory conduct but be that as it may the agency itself grants that ri created a respite period so that returning veterans returning reservists particularly coming back from overseas rather combat operations whatever could have time to readjust that's why it's a sliding scale based on the amount of service whether or not it was a quote right certainly he was denied the opportunity even apply for it because prior to anything happening his supervisor literally called him while he was active duty and said you're returning the next day and again i think that it's important in looking at the hostile work environment clean that that we didn't raise the border never really addresses that very much and about a sentence on the issue is that when he got back this all important reason he was given menial tasks menial labor demeaning conduct you know and he was that's part of a pattern where he as i know they said they promoted him that the only promoted him along the chain of those promotions he's entitled to and they delayed those promotions by a year so i'm not sure the fact that they followed certain procedures  from not following others finished with this issue of discrimination on any type of discrimination is the psychological attack on the individual because of their status it is the message that is sent the recipient and you are not equal that you are factors you are doing something we don't like and we're going to make it tough for you now hostile work environment if the supreme court has recently set this is not have to simply consist of direct statements but i'm harassing if you look at this case as a whole this gentleman's military service has never been credited for what it says and i can't think of nothing worse and by the way there is reference to e mail in this case where one of the supervisors called the men who filed  and that went by the s a c as a matter of opinion it's in the record i can't think of anything worse for returning military reservists who spent a year or more in active duty service and be told by an employer you need to come back here tomorrow because i brief not finished with this the government gets around that harassment by saying well many agents volunteer and as i say i volunteered to clean the coffee pot every now and then in my office but certainly resent the fact it was made my primary