the mr smart so whenever you're ready thank you judge it's one of the point i'm having just a little difficulty hearing you i heard the other judges perfectly clearly i just wanted to point that in case you have any questions i may have to ask you to repeat protection board these joint appeals involve a suspension and a terminations i have ten minutes to present my case i'm going to be as brief and quick as possible i wanted to st point out that the initial suspension we're dealing with is a whistleblower situation my client was deemed a whistleblower she disclosed certain information that was affecting patient care relict at the blood gas readings and hemoglobin readings she was deemed a whistleblower was that to be our representation yes i did i just wanted to give a very brief background we're going to tell primarily on that judge i think there was there was an issue of reprisal that was involved in both of these particular appeals you know where we are prepared to probably concede the fact that there was no reprisal here in either situation especially with the if determination because of the period in past time and what we're focusing on is a twenty two year employee that was basically fired for absenteeism she had a very very fine record in her twenty two years at the v a unfortunately at the time she made these initial i'm sorry ok these initial disclosures in two thousand she unfortunately got into some disputes with her supervisor and she was having issues at work over that three year period eventually she had missed some time in september and october of two thousand and fourteen that were an excuse she was suspended fourteen days did not challenge that expansion eventually there was an issue in january of two thousand and fifteen where there was some incl that responding to what it was for the agency to investigate matters that she did not call to their attention well st of all i think she did briefly and i think the deciding official dr macpherson did reference that she was  issues with her supervisor he didn't know the specifics of it but he said he had an inkling that there was an issue there that was never looked that way i believe when you look at somebody compare work history over those twenty two years if douglas factor for means anything you just can't look at length of service you have to be that she didn't have a good relationship with supervisors and how how doesn't she have some should you have to really bear that out say i mean now i want to feel your urging and harassing work environment but none of that was introduced or developed by her in her reply how can she argue this for the st time on appeal i don't know how for arguing the we put that in there because i believe when she did make her macpherson he was i think savvy enough to understand that there was some conflict and some issues there they're having a conversation she's making a reply did he know the actual specific no i can't stand here and tell you of record that he knew the actual specifics however in the context of her employment when you have an issue like this where she had absenteeism over basically get two month period out of twenty two years  and you're making an evaluation and he even stated himself on the record that he did not see a pattern here prior to this perhaps the reason lies elsewhere there may be something going on in the respiratory therapy department with that's all i can tell your honor and you did not region not she didn't leave after her union and she never made an appeal to the m s p b on that issue and why isn't this part of a pattern that we have a worker you're holding her record of as simpler and as rationale as to why she should not have been terminated but we have a number of periods of times where she's just a wall and it turns out that her job h i don't even that somebody has an exemplary record when you when you're involved in this topic they're responsible as she has and all that you know you could take just one day to hunt do everything in this type of situation would you agree i don't know but one day let me just address two point you've made here the apple team is about how about several days how about one hundred and eighteen dollars it was nothing we can dispute in that regard you much of that event capture that is not that's not testing you mentioned that is being testing that's just the computer input of the testing that you did in that particular day you do that at the end of your shift and you see him put period and as i could tell from the record the only thing she said without a relation was this was a security breach but it's a pretty serious thing is it not if an employee refuses to perform a duty that's a sign came to be a requirement for respiratory therapists in two thousand and two they if you did not perform this event capture it was and would never be part of a serious disciplinary action really what our focus is here if it was just an event capture we probably wouldn't be talking here today we're going to drain i i question what you just said that this is our focus because it seems to me that your argument to this point in time as it is is asking us to really wait sachse and we can do that what exactly is your legal argument here i think we focused again as the judge that earlier were focusing primarily on the terminations and whether or not when she had her oral reply and then eventually the evaluation by dr macpherson the deciding official whether or not the douglas factors were actually employed here or even considered or whether this was a pro macpherson and the only thing that was considered by him which was fine was twenty or twenty two years but i don't believe that everything was a looked at in the context of a twenty two year period certainly absenteeism is a problem we can see that in our brief it affects efficiency of service our position is that maybe there was a myth there were some mitigation that could have been had here in addition to that considering her length of service and her record over all she could have perhaps there could have been another form of discipline short of determination and like just among the things that the the fighting official said was that really rehabilitation was not a realistic option he thought  standard now she was suspended for absenteeism one time and that was for fourteen days this particular issue on the nd a wall issue which was which was one day there was an actual dispute head i'm sorry i'm sorry i don't really see that argument in your briefing i think your argument is more that there are certain factors that should have been more developed but go ahead why we believe there are certain fact that should have been more developed which was a problem hopefully we believe led to something less than terminations we don't believe it was a reasonable because of her life of service and her record  back into the fact that your friend was talking about clearly there's nobody to disputing that in two thousand and fourteen she was absent person a while the potential amount of time and she got a fourteen day suspension which i assume  the the agency concluded was the right penalty all that happened after that was one day and you're right the one day the agency is right that she was a wall but it wasn't a clear cut they just don't know why she just didn't show up there was a bit of an explanation a disagreement you get to that but it was one day and it seems like a different kind of extraordinary circumstance so why under those circumstances just just the fact that she was a well for twenty four to twenty four teams where she was punished one day where there was some dispute what the are there any further questions from the court well let me just ask you about the event capture because mr smart of one of his responses on that was that at least on some time previously employees were easily readily forgiven for not doing it and in the under normal douglas factor analysis comparable penalties for the same conduct is a factor that is evaluated was that aspect developed in this case saying that in other cases employees have to repeat as she did to do this if that capture duty and we're not just disappointed all know that was not developed and again here i think that i determination clearly that she could have and they asked her to input in their system which is how they they call off work they get on the computer and they put it in they can take annual leave or sick leave or whatever they have coming to them she was actually given the day they were worried about her safety you can take the day you can put in for sick leave if you put in france or leave your good she never did that for some reason and i don't have an explanation to the court i can't give you an explanation as to why she did not do that or that she just forgotten thought it and wasn't a problem that's the only thing i can offer what additional i'm sorry i'm sorry she had an opportunity to make to make this offer in connection with the proceedings in this case is that exciting official that she would just confuse she thought it would automatically be annually with what you just explained to the people right right i believe she thought it was just going to be annual leave but she evidently had physically put in what she thought and asking what she explained to the agency as to why this happened that that particular day but she explained to me the overall reason why she wasn't coming in or why she didn't put in thought i read that judge i have the appendix up in front of me now i don't know whether she said that to him i mean in her testimony or whether he said that and i don't know if i have it in my breath i believe that's that's she just thought it was going to happen she didn't have to do it and i fortunately her nd tier supervisor schweikert i believe advised her that she had to physically do this put it in on her on and  right ok that that is actually the the memo to i'm sorry go ahead it looks like that is that is the memo relative why she didn't change the time to a different category i seem to recall that your honor i don't have recall that now i have the appendix in front of me and i'm not going to be having my five minutes there in less than five minutes be able to get that to you my being in the hearing i believe that's what she thought and certainly it was offered to her but she was not going to deny that she was told that she physically had to make this particular change annually from sick leave and she did not do that if she would have done that she probably would not have not been terminate lease at that particular point in time so that's a good comes down to that and again she was initially told to take the day off but the direct supervisor told the nd tier supervisor to call her back and tell her that she characterized it as sickly for inclement weather and she can't do it and even though it's been done it has been done the testimony of the supervisor said that the employees try to skirt for me i'm sorry for you just not much more to add other than we have a twenty two year employee that was terminated for