was reasonable it ignored the significant context to mr smith's conduct of that underlies all of the specifications in charge one particularly the efforts to restrict his duties and to retaliate against him through the use  retaliate didn't consider and didn't properly consider the consequences on the part of the agency that lack of comparative evidence we believe and i still think are not car factor three are  agency deferring similarly situated to merely looking at car factor three and it sounds like your primary argument is simply that the government didn't produce evidence so this tractor should be read in your favor yes judge and the a j erred in finding that factor neutral but as with the other specifications and other charges there was a lack of real analysis on the part of the a j and that was kind of a conclusory finding that the factor was neutral and you know it's hard to really assess the a j c reasoning there because again there was a lack of a full discussion and certainly a lack of any analysis that mr smith countervailing evidence that there what w about that particular factor judge i think the absence of evidence that probably doesn't support a detailed discussion so perhaps my point doesn't apply with regard to contractor three as much as it does to some of the other areas but certainly in terms of the context of all of the specifications undercharge won i think that's really where the a j is lack of discussion and lack of analysis of mr smith's countervailing evidence it is most  apparent and most significant in terms of determining whether removal was or was not a reasonable penalty and certainly we believe it is clearly been demonstrated that removal was not warranted government please good morning may please the court the court should affirm the board's decision sustaining g s a is removal of mr smith and rejecting his reprisal defense the board's conclusions are supported by substantial evidence and on his office of the chief financial officer was reorganized in two thousand and fifteen and mr smith was given a new position description my recollection from the last case is that this was in fact done pursuant to the negotiation to settle mr smith's complaints and i am correct about that your honor you are correct it was there was a grievance there were some grievances mr smith had filed and the as a result of that he was given a a no and i'm sorry your honor he was given the new position description and then as of a result of his grievance there was a e mail that his supervisor sent out announcing that he was in this position that was sent out some months later but it was done pursuant to that negotiation am i correct yes your honor that's correct ok because i didn't find your your passive voice presentation entirely accurate in page six  in the blue brief that fifteen mr smith says that mr augustus put him on a performance improvement improvement plan and the record shows that exactly what performance mr smith to improve mr smith's performance in his communications with his customer organization the public building service organization the performance improvement plan details that appendix page one thousand one hundred and thirty nine the communication with between mr smith or from mr smith to individuals outside the office of the chief financial officer and they show that he was using disparaging language or demeaning that and not working with in a efforts to present to the information in a concise customer friendly manner to improve overall understanding and they recommended that he took leadership and communication courses to increase his effectiveness and so that was the basis for the performance improvement plan in june of two thousand and sixteen show is is not on customer friendly it was that he tended to be verbose is that correct digestible they left readers confused his supervisor testified this is that appendix pages one hundred and fifty four to one hundred and fifty five that the customers found his communications bullying and that was the that was the reason for the that was the reason for the communication instructions that were put in place which the board reviewed and concluded was a justified response to complaints about the tone and accuracy of mr smith's communications and that the communication instruction was not directed or was not the the result of concerns about the substance of his communications and that's the board's opinion appendix page five and no one so on appeal your honour's mr smith is is generally arguing that the failure to follow supervisory instructions in charge three and the the penalty of removal should not be upheld because the board did not consider the full circumstances surrounding his conduct but to the contrary the board did discuss the circumstances that mr smith has been focusing on st the board considered specifically whether mr smith was justified and his understanding about his position description and the board concluded based on the testimony of mr smith's supervisors that mr smith's belief that he had sort of a unfettered authority and did not have to accept any one emits on his personal autonomy that that was not supported by the testimony or the position just scription and that's the same justification that mr smith relies on for both contesting the board's decision on that charge three as well as one of the bases that mr smith cites for questioning th penalty of removal and then the other major factor that mr smith says the board did not consider was the communication instructions however the testimony from mr smith supervisors demonstrates that their their concern was with the tone of his communications and not the substance if we look at the initial communication instruction that was from december th of two thousand and fourteen which is that appendix page nine hundred and thirty nine ms glassman is focusing on his communications to managers outside the office of chief financial the office of the chief financial officer she testified in her deposition that it was a complaints about his tone that led to the communication instruction and that's consistent with mr de stasis statements and his e mails to mr smith in may of two thousand and fifteen where mr smith mentions that he believes that the communication instruction would for some reason limit his ability to go to the elysee or the o y g ozzie response and this is at appendix page two thousand three hundred and ninety nine that he's not intending to limit official contacts contacts me just to give structure to his the way he's communicating through management and then this is similar to mr augustus's testimony that he was concerned about the the lengthiness of mr smith's communications and that they were not meeting where employees from the public building service complained about mr smith's communications and characterized them as not being friendly  customer friendly and not really meeting their needs and so in light of all of that testimony substantial evidence supports the board's conclusion that the communication instructions were  a proper attempt to to monitor the tone of mr smith's communications and not and not the substance and so therefore the penalty of removal is reasonable because the board took into account all of the mitigating circumstances that mr smith has citing and weighed those factors against the that evidence against the seriousness of his misconduct and concluded that the penalty of removal was not that there was a that the communication instruction was evidence of a motive to retaliate the board rejected that that interpretation of the of the purpose of the communication instruction and again found that it was a reasonable approach to to address the tone and nature of mr smith's communications the board also specifically addressed ms foles the deciding fishelson email where she said she was embarrassed and the the board cited to ms fulton hearing testimony in which she explained that her concern was that he was sending an e mail out supervisors prior report and she was concerned that he was presenting this as if he was speaking on behalf of the organization and that he was doing so on and on polish manner that his communication was riddled with grammar to the rd factor of the car factors your honor the board credited ms false testimony that there were no similarly situated employees in whitmore this court recognize that the board construes similarly situated employees to be narrowly and that it must be nearly identical in light of ms full testimony substantial evidence supports the board's conclusion the kind of communications related conduct but not protected disclosures and whether such employees had been fired or w understanding your honor is that the the board was looking for the extent to which employees within the agency engaged and similar misconduct w charge i'm sorry your honor what is similar what what was what was the agency looking for and when it was looking for similar conduct a disrespectful conduct towards a supervisor and to follow the supervisory charges so the conduct that mr smith was charged with that's what ms full testified that she was not familiar with any other employees within the agency that engaged in similar misconduct to mr smith and so for these reasons your honor we respect your right and we respectfully request that the court affirm the board's decision finding that the penalty of removal was reasonable and rejecting this mr smith's reprisal defense because the board's decision is supported by substantial evidence deficiencies in his communications for writing communications that were to blank the or not easily digestible i think the record reflects mr smith could benefit from some proofreading and i'm sure his communications could be not sure if i'm repeating myself but i'm also not sure what previously was hard but again separating any issues regarding the length of mr miscommunications are easily  they are from the protected nature of their substance is extremely difficult and certainly it weighs against the agency meeting its clearing its burden to show by clear and convincing evidence that whatever move disclosure so again i just want to highlight that the issue here is not the quality of mr smith's communications that's not why they removed him and he was not disrespectful to his communicators to his and addressing any issues about the quality of his communications could easily have been handled in a variety of ways that did not involve a gag order on mr smith's ability to communicate out right