it has to be based on information in the file can't be based on x party information whether that's x party from asia obtained from other people or expertise sumption is that the decision maker is making and that the discipline ask to be within the bounds of reasonable us using the double specters it's clear to me frankly that all three of the standards have been violated by the post service so you're challenging just the panel or the whole i'm five children the whole thing but i'm focusing on the penalty just because of the matter of time i think the brief discusses the ex parte communications it discusses the assumptions which were totally and they are entitled to consider past work record for instance right they also look at the fact that hypothetically and employed he had been transferred every six months because he couldn't get along with his or her fellow work to look at that as part of the work record if it's related to the charge or is it was actually disciplined yes so related to the charge i would say no i mean if there's if there's a comment from three years ago that it is understood that mr jones got into a fight or mr racine or got in a fight we have no evidence to support it then that shouldn't be considered i mean that's not at anything to do with the charge and it's not a discipline that you would receive  d in this case and i'm going to stay with a reasonable penalty here mr anderson the deciding authority the postmaster i didn't do anything with regard to considering the conduct the clarity with which you are a notice of your obligations under the applicable regulations and the absence of any mitigating facts i have also considered the adequacy of factness of alternative alternate sanctions and whether a lesser penalty would deter you and or other employees from such misconduct and i find that a lesser penalty is not appropriate under the circumstances that is his entire consideration but the fact is there's no discussion whatsoever so what more is required well well i didn't find out if i ordered i didn't find that well he ignored the mitigating circumstances that were there there were plenty of mitigating circumstances but part of the reason ignored it because he totally misconstrued the facts but isn't twenty years of service  mitigating circumstances is a twenty year twenty four years experience years of service well that's the work record he considered well no he didn't he never mentions in never mentions that he worked for twenty four years he never mentioned any work for twenty four years without any discipline he had didn't have any prior discipline there's no another better than i would consider a matter of mitigation was the fact there was no written reprimand ever given to this person he's being terminated net for fighting with an employer destroying properties being terminated for the alleged violation of a verbal or by a supervisor that said stay the fuck away from jane barr that's yorks not good writing we have no record of that order being actually given despite the fact that the person who gave the order mr parker says that he wrote down you know exactly what it was said look at all the payroll there are in the case i mean the a don't know how long the hearing was but there's almost a fifty page opinion in which he go through all of here he goes through all of the testimony makes finding me credibility determination and the a j concluded that this statement in fact was made at the that made it clear at that time and so he's found in a break rule with another employee and gene bartow had a conversation nothing inappropriate that is the trigger supposedly for firing this person who's worked for the post office for twenty four years he's never had a written reprimand now what's interesting is that wasn't considered by anybody this case is but he was it instructed specifically to stay away from that particular person there were any complaints on the on the that this particular ms j b was receiving proper treatment from the supervisor there supposedly was complete but there's absolutely no evidence that there were first of all there's no evidence there were such complaints what we have is a statement that mr cintron never testified received an anonymous complaints no one who testified ever saw like you suggesting a close walk postal service didn't order isn't that something that would warrant something just when excellently absolutely i'm not saying shouldn't be disciplined given those facts that are being alleged i'm saying that the discipline is totally disproportionate anything that's reasonable let me go let me had nothing to do with the record of discipline or directly it records as commonly known allegations involving appellant and subordinate female employees i could go on but you've read this yourself seven months later she was terminated after she'd been you know away from his revision for seven months she was terminated she filed a claim against the polls to serve as a alleging one sexual harassment alleging two that she was terminated for filing heard there was sexual harassment complaints he said in the record that he made the determination that mr racine a was culpable of that sexual harassment and he said because they forced him to transfer he must have been called people that's the and that's where it's totally outside of the record certainly is not a matter he's making a matter that is basically in time that it would be good could the point be the administrative judge says i find the agency met its burden of appellants conduct detracted from his reputation as a supervisor it's clear from the testimony that appellant's effectiveness was compromised by his interaction with mr a b and we could go but what is he using for those assertions you know when you when you look at all these items these they throw a bunch of people work in there and they're frankly you know smoke and mirrors for the most part they throw in a interview with a mr zimmerman mr zimmerman says i've know i've been around for a year yes he did seem to be with gene barbara more than other employees but i never saw anything unprofessional  i don't see why a smoke and mirrors i thought we already had the fix jane so it was beyond the authority of the postal service under the circumstances in this case to order him not to have and then another email and then a testimony from mr zimmerman and right on cue ball of that i don't get it how it has been here in this incident of january twenty ninth where he was found in the open question is how serious it is we could argue back but three weeks later three weeks it crystal clear at that point i gave dunn instruction and he is not to speak to jane at all while on this property it told me must disassociate himself from jane completely to the point that even if overtime is called a different boss would have to inform he makes that and he records this conversation in right that's february twenty second of two thousand and six there is nothing that occur after that he was terminated five months later they didn't even start anything for three months now there should be something seriously taken into consideration when you're talking about a matter of mitigation every place in the world every human resources person the world the i v is discipline someone in order book but they made it crystal clear look this is serious stuff we're not going to tolerate this anymore and they made crystal clear what's expected stayed away from her and then be dead february twenty second there were no further violations now isn't a fact that he's five minutes in the clear this worked most employers say great you know we finally got him to clean up his act and there's no more problems they turn around do they fire and they don't even consider that there's a matter in attenuation of the violation of a direct order he was ultimately terminated because he received a direct order to stay away from her and because he violated that order he had what was the charge the charge was when he is given a an instruction to follow that instruction and file any petitioner complete with that instruction later but ultimately that the employee when given an instruction is expected to follow it in this case as stated in their propos was a supervisor and he repeatedly violated that if i'm reading the charges on acceptable conduct but you're saying part of the an acceptable conduct is failure to follow instructions is that it correct it was his  it seems like these were all in the context of the penalty stuff although it's a little ambiguous community but she raises the fact that the past history that mr anderson testified that he considered all the evidence that the thing about the he got wrong the issue reassigned how do you respond to that i mean are those relevant to the appropriateness of the penalty and if not why not they are they are not directly relevant to the appropriateness of the penalty and the reason is that all of those considerations are things that the administrative judge directly evaluated and determining whether the decided official mr anderson had taken into account  parte communications before making his decision and the administrative judge ultimately concluded that even taking all of those out of consideration that there was still a reasonable basis to terminate mr c n n for going with their testimony did anybody mr innocent did testify that even if he knew that he still would have believed that and terminator and what's proper it the repeated history of mr senor family to that that failing to follow the orders and given the fact that he was considered disruptive in the workplace and mr doesn't mr nelson have a point was a supervisor he repeatedly that decided to disregard instructions by his supervisors to stay away from his partner to stay away from his female employees and the propose first arrived based on his prior to his prior relations with female employees to stay away from place he was then again just talked to in november two thousand and five to stay away from employees were  the at so they're kind of asking him to do something he puts him in a fundamental quandary yes the actual language of the order walt yes harsh and with not is interaction with her and us in a supervisory role but his interaction with her in her personal stance in a personal relationship and in the context of that the administrative judge evaluated that and clearly found that he it was clear that it was not that he was terminated for that supervisor her and for speaking with her about things that were related to the workplace but he was ultimately postal service in and wanting him to stop this and not listening to them it was their decision that he is he decided he intentionally to be with her at a very firm he had repeatedly with female subordinates and another location that was the ultimate basis for the direct charge on the twenty third and then again failing to listen to that charge when he was found speaking with her in  side which you just stated a lot in terms of in considering that was factored in to what extent you can go beyond the precise record that was related to the charge you all of that and while i don't find a case on point that would say that it's clear that the deciding official can take all of those factors into consideration which would became contained in the employee will migrate to possibly a little union with respect to member state and concerned and then comparing because she seems to be talking about the penalty the reason with the penalty and yet she's by the fact that her concern which i understand over the back that mr anderson and consider other things like past history but you're telling us that at least with respect to the consideration of the cup of truth he's absolutely can do that  he cannot consent or under stone which is the case that discusses what the due process violations under that he is he cannot consider ex parte communications the employee would not be privy to his employer would not have an opportunity to be able to defend against in this case the proposal letter it was given the proposal letter indicates the past history indicates that prior instructions to him and within the contract not to work he would necessarily challenge you because they are not relying on that they had that proposed letter reads is that it's it's a combination of all of that that his repeated failure his on his and his desire on who those mornings and his intent to only those warnings and ultimately leading to the postal service stay away from her and then there was the order of february twenty second was a closed and right there were a number of alleged incidents that may or may not say that there were references that were in the fall september october incident things improved until the edwards incident and when he says the edward incident he's referring to the january twenty ninth situation where mr edwards found the three of them in a break there's no were prior to this order of anything the employer doesn't like but when they talk about what is yet acceptable conduct they are stating this or that's all they're referring to they talk about you know we give you this order violate you violated whether he intentionally violated his testimony he was in the break room and she came in ok he didn't intentionally you know bring her nobody has anything to dispute  maybe given the order is given maybe he should have left because he was told to stay away from her but that's hardly a crime that's worthy of someone getting terminated from their job after being there twenty four years and again once it was made clear february clearly he followed there were no problems and that's an important point i don't know what he what other point in mitigation because mister mr anderson said no less or no lesser penalty would be effective now it's hard for me to capri hand how a demotion to a lesser you know out of the supervisory ranks wouldn't be effective he actually requested that which would be another consideration that you're talking about in mitigation he requested to be transferred requested to be motive being demoted showing wants to get away from this perception nobody considered that something is it and if they had them over to him he would be in a position to give favoritism would be out of the situation he would also there wouldn't be any problem with the having breaks with fellow employees if he was demoted and that certainly is a very reasonable alternative that mr anderson simply never addressed just as there