course the issue in this petition is the term a nation of a supervisory security specialist coop branch manager at the securities and exchange commission evidence which contradict it statements from witnesses in the record he did find that the agency witnesses were credible but he did not consider evidence which contradicted that evidence and why do we know he didn't consider he did not his own findings suggest that he did not adequately adequately considering the sest this evidence in the court has decided in any give me a specific example i mean the fact that he didn't specifically explain why he found that other evidence not credible and the agencies witnesses credible doesn't seem to suggest that he didn't consider it so your honor it starts with appellants performance appraisal she started in two thousand and fourteen from two thousand and fourteen until two thousand and seventeen she had satisfactory or sees expectations performance appraisals there is no reference to that in two thousand and seventeen the year that she was proposed placed on the pip and later proposed for a term a nation for nine months during this rating cycle her performance was example she received a mid year review it's only the last three months where when she got a new supervisor that there was an assertion that her performance was not acceptable another example is the noise that inconsistent with the fact that her prominence during her was not acceptable your honor it's inconsistent this is what happens all the time in these government performance cases that people get rated acceptable for a while and then maybe their duties change maybe they get promoted to do something that i capable of and they get put on a pe and they can't do it but that's the fact that there's i mean the fact that there's prior acceptable performance ratings is certainly relit that but it doesn't contradict a finding that later performance is unacceptable because it you so she did not get a new position or yet additional duties she was still performing the same duties so nine months out of this performance cycle what was it nine months because part of it was short period of time when she was reassigned but even when she was reassigned during this performance cycle her performance was acceptable but nine months into this performance cycle her duties have not changed substantially and they don't change substantially in the last three months but a decision was made after assessing her reviewing her for the last three months that she was she would be placed on a pip so it's slightly different from someone getting someone receiving a favorable evaluation for many years and then ringback it still doesn't matter if they found that she was not doing her job acceptably the fact that they previously found her does it stop them from changing their minds as long as they tell her you're your job duties here what we expect of you and here is the opportunity or for why aren't we focusing on what she did during this pip and why it didn't meet expectations your honor that's part of the course that's part of the calculation i was going to go to the next point which was  two thousand and seventeen review there was a calibration session in mr geraci judgment in the record recorded notes during the calibration session one of the reasons why a decision was made to terminate her was this claim that somehow story or at least they're inconsistent st the notes indicate that the session started with a comment by ms harris that mr holman and another employee were performing they were doing their job they were performing well during this rating period mr holland had received a performance bonus or performance award from another supervisor and at the end of the his notes he indicates that as of now this is where we are at there was no consensus that this gentleman the course decisions so that there's two pieces of evidence at the record and one says one thing one says the other thing the administrative judge what with the one thing we can't go with the other thing just because you want us to wait well no you can't you're on i'm not suggesting that what i'm suggesting is this court has indicated in the interest p b s indicate if that it's the obligation to consider the individual's performance both before during and after the pip those are relevant considerations and for miscarries here in particular before the pip there are no issues she's exceeding her performance what we have is isolated incidents off while she was on the pip and a lot of that is contradicted i mean these decision does not reflect the evidence that was presented that she was terminated for her work on this resource project there was an allegation that there was an executive summary that seven tuning calibration session where there was an allegation that she did not go along with the consensus of one of her subordinate employees as a result of this session this calibration session there was a statement made that there was some concern that the employee who was being evaluated mr holland had a temper and that there was going to be some investigation there was a gentleman named dave brown who was brought in to talk to miss harris to do an investigation during the course of this interview miss harris indicated that she had notes but she could not locate her notes as a result of miss harris not being able to locate her notes as a part of this interview process that's one of the basis terminating her in the final issue was the performance reviews there was an issue of a delay in the performers reviews there was evidence in the record that miss harris and miss clancy a coworker delay in doing this this was presented the up in the in evidence and the administrative judge concluded that regardless of statements that were either inconsistent or contradicted some of the reasons for appear by the terminate was already made when she was placed on the pip the in the we know that because the agency's office of general counsel was actually responsible for preparing the pip and it was issued through the supervisor but it basically came through the off from general counsel i  don't understand why that means it's pre determined that lots of government agencies when they put people want to make sure they're doing it illegally correct way because chapter forty three has a very strict requirements so why does the fact that they got on the pip setting up the terms for the pip we have i know fifteen factors or so and she can't make more than two mistakes on any of these factors the basically an unattainable by any basically any federal employee this was designed from the beginning for her to fail the p effective i mean she made a bunch of these arguments that she's now making in support of a discrimination claim but they also seem to go to our nondiscrimination defenses so the fact that she made them as part of the discrimination  all well it does it does through the progression of the allegations argue that the discrimination culminated in the proposed terminations and the terminations and who the relief requested from the district court she asked for reinstatement also whether it's specifically pled in the district court or not in order for the united states to defend itself and that action right she's asked to be reinstated all of the conduct in the performance leading up to that terminations would be a effect of her waiver of discrimination claims here d is with regard to what the district court to hear because it i mean if the district court can certainly hear d or discrimination claims arising out of the same set of facts and issues person for say damages for instance or something like that right yes but not simultaneously right she's pursuing an alternate theory right but she has affirmatively d waived any discrimination challenges to a loophole in the course of the action of this case and so if we accept that then what happens in the district court seems like it should be for the district court to decide the effect of that waiver here not her us to tell the district court to dismiss that case or d apply to us not to hear a case where she's made a seemingly complete waiver you're correct that the district court would decide when what the effect of this court's waiver is in there is binding authority in the brief while she has filed a formal way rumors from the nation claims the arguments that she presses continue to sound in discrimination and pretax and retaliation before the board this is a case that winds its way here from the administrative judge at the at the board before the board her only other than challenging just the substantial evidence her only allegations are really different from that of defenses why aren't there was just submit that on this record the factual evidence is overwhelmingly in support of substantial evidence ms harris was found to have had interpersonal issues and issues with work product she was placed on a terminations to be supported by substantial evidence you need to have been given warning of her inadequacies and the opportunity to improve them the pip was that warning and her opportunity to improve to improve came through those ninety days where she had weekly meetings with her supervisor for surprise was also available for ad hoc meetings she was given extensions for a work product she was given opportunities to improve or we do work product that was due in that period i don't want c this was her section her division at the start of the pip she made a complaint to her supervisor that her section was understaffed her supervisor then said ok prepare for me throughout the next month she either failed or refused to produce a workable report that report was called for in response to her own complaint that her section was understaffed she was given numerous opportunities to put that information to her supervisor and she just couldn't do it eventually the spreadsheet that she compiled contain missing information mathematical errors her supervisor relieved her of the obligation of finalizing it she was then hast instead to produce an executive report the administrative judge goes into great detail on he found that executive summary which is in the record to be on its face on professional had fonts of various size and three quarters of it is concerned not with providing recommendations on current and future staffing levels but on grievances about having had to produce this report in the st instance further to that she also was suffered rating to give to mr hollis aboard that she then deviated from that rating and gave him a higher one she also complained at the meeting that she did not want to convey the lower reed rating to mr holland and in response to that management again stepped up and said well let's see how we can help you right mr brown another employee was tasked with doing an investigation to see whether there was an issue with mr holland to substantiate complaints she then fust rate in his investigation so what we have here is someone who's responsible for a branch who can't show up to meetings to talk about her branches corresponds abilities she can't produce a report summarizing its projects and its resources and what's needed now in the future she has interpersonal issues with her supervisor and other staff and for those reasons she was ultimately terminated issue then moved do you want to comment on the shore so with respect to the due process argument as i'd mentioned it in substances or italian argument to the extent one were to construe as a due process argument it's not developed and so it would be waived on that reason as well she doesn't cite any authority for any due process principles and there is no law that we're aware of that says that this deciding official couldn't be the deciding official for her terminations he was her  nd line supervisor instead of as this court's love ssion decision makes clear the governing standards that's natural evidence right it doesn't look specifically to who made what decisions it looks at the entire the record  we submit the terminations decision was supported by substantial evidence with regards to any claims of pretext or pre determination that are somehow separate from discrimination retaliation we don't think there's anything there nothing was saying same as with the process argument no alternative theories were developed before the board and would not be preserved for this court to rule on now there's no there was no debate before the board say that  one supervisor you know was was putting her on a pip and terminating her in order to favor another employee right that would be a kind of pretext for pre determination that might not be discrimination based none of that was before the board none of those arguments have been developed or preserved we would also put forth that anything that concerns the prepared performance my colleague had mentioned some of that earlier her performance from october twenty four teen to the point of the pet all of that is is weighed and should not be simultaneously considered by this court because that is in dispute of lee squarely in front of the district court right now the only thing that could theoretically be remaining is just whether i'm not her terminations was supported by the stench of lebanon and as we have admitted we believe that the record at the supports that if the panel has been for the question evidence that either contradicted the reasons offered by the agency or supported the appellant's position the glaring example of that is in the opening page maybe the st or nd page without making any comment about miss harris's prior performance or her performance evaluations there's a reference to the fact that some employee made an accusation that miss harris an african american female sued up in a meeting  while meeting with her subordinate employees and stated that her supervisor caucasian female was a pitch and the ministry of judge made a point of putting that in the record and fine and then he notes in a  footnote that the finding on this allegation was inconclusive not directing any attention to her prior evaluations or her performance but making that type of comment in the record concerning whether there was substantial evidence to support the action taken against miss harris this starts with a pip there is no evidence of any performance issues before the pip she gets notice of the proof these alleged performance issues when she gets t pip informs her there's no warning before the pip if there was a genuine concern that you had that an employee have performance issues you would expect to see in the record and some evidence that there was some warning or some indication before the time you're placed on the pier this is after the end of her evaluation period after two thousand and seventeen she goes through nine months no issue she goes for the remaining three months no issue after that period that's when she's in form your your we have concerns about your performance you're being placed on a pia you have ninety days to improve your performance and you're out of that requires that a warning be no rules that a warning be given but case but they already suggest that the a miss p b should look at both the performance of the employee before the pip during the you mention also that there was no reasonable opportunity for this employee to improve there was some discussion about this coop resource project the fact of the matter is that miss harris was given this project and at the same time this project was previously assigned to a vendor or contractor and the contractor took two thousand four hundred hours and build the s e c for twenty four hours to work on this project miss harris was given two weeks to complete the project at the time she was given this time to complete the project one her administrative assistant was removed from her and a staff member had been detail of out of her out of her jurisdiction or out of her authority all of this is in the record so there was no effort there was never any intent for miss harris to succeed while on this pip this project was an example of it of the supervisor saying i'm going to place you want a project where i can make a subjective determination as to whether you meet the requirements of this project and if i determine soley that you don't meet these requirements you're going to be removed that's what happened she was terminated after ninety days immediately after the conclusion of this pip so as the already decided before she was pla