department of labor an agency that's expected to be a model employer generally and for perfectly as to use air the saturated fat issue in this case which was an act to protect people as respect for but instead of being appreciated for her service at a time when national guard reserve was being called on a stork levels for help in the war on terror because back war suffered deliberate adverse action by the agency that is supposed to be the enforcer of her rights for no reason other than her military service with all due respect that's important context here that the agency charged with enforcing the small freedom itself in the span from one to her entire time at the agency miss becker had a stellar record there is no dispute that she received consistent promotions each year in the january february timeframe including january two thousand and one january i'm curious where does the air that requires us to do something different or to corrected by the board so let's talk about it with the board did you really want to before with all due respect your honor the board acknowledged that error but they didn't correct it because their sensually rubberstamp say they did not go back because they couldn't they were not there to observe the witnesses they were not there to make credibility determinations so they were not there to they could not presented with a record where there were no findings made as to whether ms beck or met her burden there were no that he made although certainly that those are something we talked about in our greets but if it's in the fact that he was in it when he was listening to the testimony and when he was writing his opinion when he was making his was rather clear all right let's assume for the discussion purposes she's done that now their answer is well even so she didn't qualify for a g because and then they had all the this evidence that what what can we do with that except and that's a judgment call by the supervisory staff how do we deal that's that's very important here that both agencies effect essentially found that he admitted to creating a paper trail and he did in fact who refused to stand by some of his determination so that the for the record that he created on the basis of that and from crack croc or whatever that over time they had come to this evaluation of her performance  thousand for this decision was made affectively in february of two thousand and four that's the denial of the promotion that we're complaining about here because that's the time frame but as i started to say that all of her other promotion decisions were made and it to get a clear career ladder promotion in february of two thousand and four completely amidst that standard that was added to the collective bargaining agreement in the regulation for the fall of two thousand and four and there is no explanation for why we should move that period out after a three year pattern of always making the decision in february just suddenly doing it in september other than for the fact that that they want to do that so that they could create this paper trail that's also the only way that they get in  whole and giving it credibility except to determine if you're you're you're left with this notion that this was somebody who had no bottom three feet was coming in to testify for the employer on the basis of his belief that she was wrong and that there was that there was a paper trail that he had to admit to to creating if you really believe she didn't have good performance to do to be promoted he could have very easily just said you know what even if i got that instruction it didn't matter because i didn't  performance you know i didn't rely on that but instead to keep giving it i don't know not really i don't stand by these records because this was part of a paper trail and the other thing he did was focus consistently on the subjectivity standard that there really was same so the only difference is supposedly this notion of in the ability to work independently but ms crap said that g s eleven employees are also expected to work with some degree of independence so when you've that the notion that even g s eleven are expected to work independently and all the other duties are the same what is the difference between these two and that's why up until february two thousand and four it really was the situational ceasar position that you get and where after here we have you know a paper trail we have some objective standards we have no basis for extending the review period to bring in all this evidence of force before performance that first arose military service was a substantial motivating factor in her non promotion moreover other government did in fact prove that misstep or would not have been promoted regardless of for military service because you could have they do that how did they do that well through the  credible testimony of ms crock of mr the stall haber who we've already addressed a little bit and mr hawkins as well and each of them testified at length and the documentary evidence of course testified at length about numerous projects occurring prior to the time that the to twenty three twenty four she became eligible for promotion she apparently was a pretty good employee well she certainly performed well at the below the g s eleven level when she received some mee inability to prevent the whole process is under some cloud don't you wouldn't you concede that view of this timeless of orders which the record doesn't challenge that she didn't like denied the allegations that she had any discriminatory motive but even if we look at his part to this testimony and specifically what she described was up plan whereby moose thomas would have one of the managers assigned work to muse that for in a way that would interfere with her military leave in this administration just spent some time looking at that allegation and he did not find use for two credible he excluded her from those findings but instead he did something more to look at what did she say did it match up with the rest of the evidence and it didn't what what was never shown at the hearing was any instance where an assignment was given to that work that interfered with the military leave that was the manner by which she attended that's irrelevant to the close of the question is whether that there is a discriminatory motive and i would suggest one of the staub case the supreme court case which just discussed the cat's paw analysis where the person making the decision himself does not have an an animus towards her military service but somebody at the particular personnel action and this case he went in there any look at her performance he documented her performance and with respect there's nothing wrong with a paper trail but who is the individual who made the final a choice on  described by mr to who we can emphasize not found credible mr hawkins testified that he made his decision based on two things one was his own analysis of her work as a supervisor as her supervisor and then also conversations with mr starr favor that were after him whatever cloud he felt like he was under had already passed he also testified that he did not make a decision at the instruction of ms crocker or anybody else that he made it based on the merits of what he saw her performance and he wrote up that performance in describing quite accurately in the august two thousand and four memorandum that perhaps someday she might be able to perform and just well she had shown it so far and that he would he was going to take this particular interest in trying to get her up to speed to be able to do that but she wasn't there at the time that he made that decision and that was all her layers and using rolled in on what happened to him where i don't exist i don't know but in two thousand and four according to what happened the records he came in and he was hired at that managerial  whatever that was described with the step above his back was during the summer of two thousand and four he decided that he would rather be doing work in the field i mean remember trial attorneys do guys like to do this do the work in the field rather than spend all day doing personal things looked at the work that she did that he wrote it up and at trial he stood by the statements that you made back in two thousand and four and that testimony is that page eight in the records two eighty four and eighty five and what what the question was was  heroes in the midst of asking you basically whether what you said in these memos was true and whether you were then you were in the process of answering my question he says yes and ultimately the attorney asked there's the answer to my question is is the information you you're correct and he said sure you stand by the record he came back to distinguish between the g s eleven and g s twelve that's the testimony that ms backward cited her briefest him possibly not completely standing behind his record and then two pages later he he applied the wrong burdens when at the original hearing the board took a second look at that and corrected the matter but if you look at it from a practical standpoint what she was asked to do with the hearing was rise to a higher level of burden of proof and she attempted to do so was unable to do that ministry the judge found that when it was corrected essentially what happened was the bar was lowered for there was nothing more to go back and do it she had put on more evidence than she had originally intended to one would assume to meet the higher level of her she had every opportunity to put on the evidence of discrimination which was not incorrectly assigned one way or the other the more looked at the evidence decided that the record was fully developed in fact it was and to the question that this court answered when the error that occurred there was rules well only if there was there was a need to to look at the record further and i think that the issue here was not whether she was misdirected she was asked to do more at the trial level then what she was required to do and so there wasn't a need to go back and say ok they put on less evidence there was there was no way that there was no need to do that that the record that had been developed in this is with the full board found was fully developed and that they had enough to go back and look at the burdens that was discussed she simply could not do the work and that was simply overwhelming enough that there was nothing more for the board to do and with respect to the discrimination side the first person under userra that was correctly assigned a jail level and there was nothing more to do th initiated an arbitration was represented by the union at that level she lost there as well this case has been very well reviewed by a number of tribunals and including here today and we believe that in every instance it was found out correctly that she was unable to prove  going to include any of mr hawkins testimony when he didn't even come on board until april when the decision was made in february that's when every other decision was made and every one of those back was other promotions and that's when the record he may have made a second decision but the decision that was made here that was backwards complaining about is the one that was what is the decision that the administrative judge and the board reviewed they were focusing on the decision because this was in