our first case this morning is benjamin versus an agriculture  insufficient evidence of any type of nexus but i guess i'm a little unclear i mean you've recognized our standard of review destruct your client was charged with not following supervisory instructions and with disrespect for comp correct customer as a result of what they alleged miss regiment did about it but in general i guess the question i have is if you agree that in general many if not most of the charges we laid to the efficiency of the service then what we're down evidence correct that's correct and the witness the supervisor basically sort of adopted that said i stand by what i said there rep yes and question was subject to cross examination  evidence and not testimony because i'm not sure how you got the credibility just based upon a document that this benjamin and her witnesses rebut of i thought i would also i'm not particular point point out of disciplinary actions taken in this benjamin starting in two thousand with letters of caution progressing to letters of reprimand progressing to suspension doesn't that lend credibility to the efforts that were made to try and help her achieve some kind of improvement well i certainly that's the agency's argument our position group this discipline that you pointed to in the past was an effort by the supervisor or supervisors to retaliate and get back to dance mr benjamin obviously the court would have to be inclined to believe that there was insufficient the types of issues that arise to the removal making unusual faces at the supervisor or insufficient status reports if the court looks at the all history and all i've been involved in the park is don't your minutes late to a meeting on how their polling up wanted to these charges but if there isn't sufficient evidence of of over the official state of the service and if these are relatively minor link's first point lookout with regard to nexus of course this court reviews nexus one a substantial evidence standard of review and there is something that strikes me a little unusual about these i mean these charges  include both conduct and performance elements and i don't know if that's normal i mean if it were just a performance issue then we'd have a lower standard of review in terms of the government but i guess the government would also have to content the areas bells and performance so there is no certainly no barrier to the agency removing an employee for her failure to follow supervisor instructions even if that strikes the court as being performance related and in fact the failure to follow supervisor instructions was listed in the agency table penalties under the type of misconduct for which an employee could be removed from federal service so we don't think that that is it should that would be  the second thing that struck me a little about this case is that while obviously we defer great deal to credibility determination here the age of a relied on the credibility testify other than to say everything in the record that happened is my best view of what actually happened is that the kind of appropriate testimony in which we would give  notice of her posts removal was on its reflection of the events that happened so she incorporated that that document by way of her testimony but she did testify before the judge and she did provide testimony about some of the other charges against ms benjamin and so the administrative judge did have an opportunity to consider her demeanor and her credibility and to determine whether her story was consistent with the testimony of other witnesses and so even if she wasn't testifying about each specific specification the misstated judge certainly had an opportunity to consider her demeanor and see whether she was in general  someone whose testimony would be he considered to be truthful and he made specific credibility determinations on his twenty four twenty five and thirty six of the right of the opinion that the agency is s and my giving you a menacing look i'm not sure how to answer that your honor probably not but that is of course the point of the question is that just looks and giggles and other things of that nature it can be pretty subjective if i had proceeded that with a little anger in my question you might have thought it was menacing is there an element of subjectivity in this record that we worry about there's certainly an element of subjectivity but it's not anything that this court needs to worry about and that's exactly why we have an administrator's judge to consider testimony from all the parties to consider whether this giggle was disrespectful or in the context of a joke that the two parties were telling each other and the is no reason to the court to reverse that issue another issue that miss benjamin raises is that she wasn't apparently specifically notified that her failure to follow a particular instruction could lead to disciplinary action and of course that would require an agency every time a supervisor gave an instruction to follow up with a warning that the failure followed that particular instruction could lead to penalty and the agency's decision not to mitigate the penalty there is ample evidence that prior lesser penalties have been unsuccessful in an attempt to have mismanagement conform to the agency's concept requirements supervisors had the same reaction that tends to suggest that it's not just the subjective opinion of a single person who couldn't miss