good morning first the first case this morning in zero five three three one two three the department of labor the car were challenging the removal of us humans in this situation i believe that there is what's called a threshold jurisdictional issue in other words the government has entered previously entered yes because the job description was an accommodation it was well let me ask you something else though does the does the selman agreement explicitly state but let me tell you what my problem with your position is that the blob of prey explicitly found out i believe that the job description the new job required the ability to use a computer he found live i understand that your honor however there are at least there's the testimony of both supervisors emotional but see the problem i have is the record before the board which is what we have to base our decision on because we're review the job the new job description required the use of a computer and i take it that what she is saying she wants an accommodation she's never suggested that she could somehow perform the job doing some computer work as i understand it would she was complaining about as she said she was in taiwan accommodation under which she wouldn't have to use a computer is that is that right or wrong  is here the employee has never been given an opportunity to perform would it when you say to perform to perform with a computer or without your eye there are other duties employment physicist on the job to see if there was radiation given off by the computers and whether or not miss hughes was subject to that and whether an accommodation could be made based upon that if anything given the fact that there has never been any form of an evaluation up or workstation itself for a by by businesses i think they call them employment physicists there should have been an opportunity for them to take a look at it they didn't do that what happened here was they read through the doctor's report they made up their mind and they terminated her now both doctors both doctors said miss hughes they were not recommending misuses remove both doctors said mrs hughes could perform the duties of her position with an it the accommodation you're suggesting should have been worked out with an accommodation not involving the use of a computer and yet the new job description i gather said we've attaching the new job description by i do know that there is testimony where the the sad explicitly that it couldn't reveal any issue relating to the collective bargaining agreement because a lot of room wasn't performing well i stand here are you know i'm reading i'm trying to understand order to comply with forty three to and in order to at least in light of what the doctors have said that what has to happen here the doctor said there was no recommendation for this  employees remove up until the day of her remove them she was a satisfactory employee there has not been any determination as to her ability no matter what she said if i tell my employer i can't do something they're going to put me off him they're going to take me through the process so they can at least have a record to show that we gave this person every opportunity exists between employees inability to perform the suit between an employee's medical condition and deficiencies in the employee's performance that's the first choice then the agency needs to show that there is a that's correct and that was that's an actual critical element of hard drive that's correct and lot of good as well one of the critical elements of the secretary's job is the ability to use a typewriter or a computer to be  written word that's correct and because of this use had a medical condition which prevented her from performing that critical element of her job the interest you clearly showed that there was there was a nexus there between the condition in the  other people do her job when it was necessary to resort to the computer that's supposed to last not performing her job that someone else performed that's correct or in the right  correct but for ten years though she was deemed to be successful in her position which didn't clue partial use of the computer so while it was suddenly the job description w its accommodated misuse by building her clean room removing computers from around that room helping her purchase an air freshener for the air and air purifier for the room but then the agency changed its mind essentially and decided she got a new supervisor who decided that this was inefficient and the settlement agreement that the agency entered into simply has no bearing upon the question of whether problem with their argument is that this court in loveship said that when it agency removes an employee under chapter seventy five for such a cause as will promote deficiency of the service it does not have to conduct a performance improvement plan it just simply does not have to has to prove by a preponderance of the evidence that the employees inability to perform affects the efficiency of the service but it does not have to jump through the procedural hoops  that way that would be the case i'm not i'm not sure if that's the case but that is that even if that is true that's irrelevant here because chapter forty three procedures were not use chapter seventy five procedures for use in the as the arbitrator found the agency demonstrated by a preponderance of the evidence that misuse inability to perform back to the fish that's what the agency was required to show all of the chapter forty three even if the agency had put her on a performance improvement plan it that the agency's thinking i think was that putting her on a performance improvement would have been futile because she refused to do her job or she could not do her job and therefore some sort of performance improvement did not make any sense it's as if someone has like a lifting restriction you know that they can't lift more than twenty pounds we used a she refused to do her essential element of you grow up is that you use a computer and you don't say you try to use the beauty you say i can't you read the script or overshoot was certainly willing to perform a job but she wasn't willing to perform her job  required to have its research libraries use computers misuse would not do so and so the agencies removal of her was appropriate misuse reliance upon the settlement said this morning was that even though the settlement agreement does not explicitly preclude shane good job description it was inherent in the nature of the agreement on the and the kind of the dispute was being subtle that despite the settlement agreement they would in ten attempt to give her a chance to show they could perform the duties of the position without regard to using the computer i take it that's the argument that the sun an agreement and in fact contemplated that there would be some continuation of the old system where you could i suppose read the subtle it that way but the so the terms of the agreement i think the plain language of the agreement refutes that argument all the agency agreed to there was the various various accommodations to move the computer away from the office to construct or a clean office to provide  m office was painted to help her purchase an air cleaner this settlement agreement by its turds does not restrict the agency in the future it just simply provides we we will do these things to you if you drop your ego you'll see it just simply by some it it actually contains language that says provides only as much as chapter forty three provides in chapter forty three is in a political year and so is the collective work great again agency had only to follow those required only to follow the procedures of chapter seventy rationally chromakey to regulations sixteen fourteen five zero four s that those types of settlement agreements are filed and binding on the age of decade and to allow the agency to set aside a settlement agreement because it's a rather or otherwise would be least require a court order would at least require a court order and the agency would at least have to explain why i think the corniche right when it says that there are certain things in this agreement which reference  the only thing i'm doing i'm just trying to at least i'm talking about what is a settlement agreement within the eagle context what it is what is its impact on future employees o we're going to say that if i enter into a big green room with the government two days from now four years from now when it becomes inconvenient that the government is free to break that agreement with the employer about the language that he recorded which do not what are the use of a computer game performing the central functions of her position of technical information specialists they require are fully cooperate if you read  the future if necessary so it seems to me what they're saying is we will explore whether there's some way we can allow her to continue doing the an argument on your part as to what the someone agreement requires with the women is not before us i stand that you are i mean i understand that what i am saying let's go back let's go back to the fact they're both doctors when he says that she medically could not do this guy said that the plane i mean the hell could be one even if they change the job description your honor the case law requires that they put together some form of performance standards there's no evaluation there is nothing an evaluation of her opportunity to perform under forty three zero pre only then as the agency frieda remove her it is not here the supervisor's