significant as far as the seriousness of the of the offenses so i think we're all free as you are to get those off the table because the board said wasn't didn't sustain those specifications  exclusively on the alleged misconduct so much talk about that because we've already taken the other stuff off the table yes ma'am the those specifications were considered as part of the douglas factors and one of our arguments are the douglas factors are not properly applied properly considered so we felt that those were still significant notwithstanding the m s p not accepting those or not looking further into those so ok i'll present to the other issue remaining two issues and that is the the severity of the of the specifications regarding sexual sexual harassment this came out of a sexual harassment investigation and it's clearly a sexual harassment  issue that was of the elevations that were submitted to the investigation that resulted in all the charges it was also referenced on three different occasions in the the deciding official so douglas specter's consideration and there's a f the ductless factors but those i think were remedy when the deciding official said even with his the years of service whatever i still made this decision and she explained walk what's wrong with that why is that if and the record of the hearing at of about fifty five minutes and twenty three seconds the deciding official and her testimony stated that the physical sexual harassment specifications of were particularly egregious and that was part of her consideration she looked at the seriousness of the offense as well as the rehabilitation and all the others in the douglas factors those two specifications were thrown out by the administrative judge so what we're saying is that when when the touching the allegations of touching of actual assault were dismissed all of you have left our sensually comments locker room type comments that are made a year apart one hundred ninety two thousand and nine one two thousand and ten there was no complaint made of them they were not obviously not taken as as unwanted comments because the administrative or i'm sorry the deciding official in her do a decision letter as a coach the witnesses saying whatever that was her response  whatever and there was no complaint on the complaints were ultimately made after they all went through sexual harassment training and on reflection and they realize certain mischief was going on and decided to report this individual there was no complaint in the sense of an e o complaint that would be investigated for would be resolved through the e e o c system these are complaints that work referred to the office of professional responsibility in washington for them to do the investigation now they were referred to sexual harassment complaints that is on page one of two of the of the appendix it's referred as a sexual harassment complaint and that is our that's our issue this is a sexual harassment complaint and the other serious charges were removed and there were other charges that were removed by the by the deciding fish also but when those those two of the serious months were removed the sea has so much emphasis on both in her decision as well as her testimony we believe that that the evaluation of the douglas factors on these specifications or remained where i would did not justify under the douglas criteria to justify the severe punishment the the maximum punishment discretionary we have cases sometimes when the employee comes up and says the agency only suspended six different people for the exact same conduct and now they've removed this individual you have none of that require specific consideration of serious the various elements of twelve elements and in these two of those are very the the the more some of the the most important things that people usually look at in these situations is how long has this guy been problem in our cases isn't that typically sufficient in terms of curative and will we question whether that was of sufficiently curative at that level because again she still had two other specifications or she was considering as a very severe as egregious which were later removed by the administrative judge so at some point if the deciding official is looking at ten or twelve factors and only two or three of those wind up being you know being ultimately proven with her consideration the deciding official consideration of those earlier those only are possible specifications as that's contributing to the seriousness that you know it has to be reevaluated to some point it's after the fact for the citing official of the citing official cannot make that reevaluation administrative judge certainly can and we believe the administrative judge erred in the determination that she made and that's why yes we are asking essentially and have no will they did they did exactly what you wanted they said they're not sustained and you can't rely on them and i don't i don't really understand your argument about those additional you want on that issue those were taken off the table and then it was  board and then us to evaluate whether the penalty was appropriate based on selling the misconduct allegations and not the in cooperation so i understand what you think you can gain by that you've already you know th all of them were not sustained by the administrative judge or one number two when you look at the circumstances of if you look at the nexus for example between the removal and the sufficiency of the service you know there was none in this situation because between the time the passed between these two events in two thousand and nine two thousand and ten finding being recorded a year later their record shows that he had satisfactory service in the us either either a fully successful or outstanding there were no other issues that we know of there were no other events that occurred so we would suggest that her evaluation just based on that that nexus requirement of the douglas factors happen five times before you can say that this is not accepted well you know when you're aware that the good the civil service system really has a a progressive punishment aspect to  people usually it would take you up through a chain of different punishments of things to reoccur so we would see just that circle and that's all i mean maybe what you're suggesting isn't completely out of the question and completely improper completely out of the box but that's not what we're viewing here in a level we feel maybe somebody could have done something else and maybe if the agency had decided to suspend him for forty five days we would have  of the ultimate requirements of the decision to remove the the employee is that the removal has to be said supported by substantial evidence and in the bottom line as that's what we're arguing that there was not sufficient evidence in this evaluations we do not believe that there is substantial evidence in this file to justify that extreme measure we don't think it was was so it was quantified by the testimony of the deciding official we don't think it's in there and then the evidence file and given the nature of we're not we're not saying that this sexual harassment is not a permissions thing in the federal government you know you do is read the paper watch the news in the day you know what's going on but there are levels of it that goes from minor ange to a very you know to sexual assault and in this that scale we think that the evidence shows that this was a very minor level that there was not sufficient justification in there by her but there is ministers i'm sorry by deciding officials testimony or the documentation to justify going that far by itself those things by itself all the specifications taken together maybe there was sufficient for removal but just on the sexual harassment issues that mr scott's inappropriate conduct was sufficient to justify his removal mr scott's assertion that his conduct was not serious or minor does not satisfy the standard necessary to reverse the board's decision for example this so mr scott who was a supervisor made inappropriate statements of a sexual nature and displayed inappropriate pictures to a coworker the board's conclusion that these constitute serious acts of misconduct was not an abuse of discretion and this court in its precedent reviews the penalty in a highly deferential manner the board also appropriately affirm the administrative judge determination that the nexus is established when a supervisor makes inappropriate comments of a sexual nature to coworkers with regard to the the douglas factors mr scott's expressed disagreement in his brief but he's not a den of fide any errors as the courts point out there were glitches but these were cured by the it is a basis to take a more careful look at those it's not absolutely your honor is it is the basis to step back and take a closer look and that is what the administrative judge did in in her decision she goes through the douglas factors not quite the no vote but she goes through each one and weighs them and as your honor pointed out there was rehabilitation testimony in this case which which the administrative judge credited  so i think the step back was taken and the administrative judge determined that the dog was factors doing her own analysis still warranted move on this case and this court's precedent also looks to whether the agency gives any indication that if there is some charges that are not sustained or differences in the douglas factors if they would have chosen a different course of action and there's nothing in the record here that the agency would have chosen a different course of all kind of what's the opposite that ga charges but in cases such as hathaway v department of justice the board looks at whether the agency has made any indication that it would have applied some lesser penalty and in this case that there is not are there any agency that's what the actually agency took and that was upheld by the board i can't remember what happened if and when it came here but the board determined that inappropriate comments of sexual nature are enough to justify removal