Legal Case Summary

14 3014 follow-over CPS USTS. Mr. Herald, you're never doing that. Thank you. May I please the court? My name is Robert Herald. I wanted to hold the minute. I was dressing your friend on the other side. He has no chance to unpack. There is quite a bit of the pack. My name is John Heraldson. And I represent the petitioner in this matter, Teresa Fowler, in regard to her termination after 16 years of service with the postal service. We're appealing the decision of the MSPB reaffirming, or affirming the decision of the administrative law judge below. Our position on this is that Ms. Fowler followed the express terms of a policy dealing with reimbursement of expenses incurred from a duty assignment in Tallahidh. Her normal assignment was to the Post-Cert, Post Office in Oskar, Lusah, Iowa. The towns are about 20 miles apart. Ms

. Fowler provided that assignment. Are you saying that under just the regular travel rules given that she was placed in this position, which is still within the 50 mile radius of her duty station, that she is automatically entitled to travel in her dam? The regular particular policy says within, it has to be outside of 50 miles of regular travel, or if it requires an overnight stay. And who gets to determine what requiring an overnight stay on when the circumstance exists? Well, by the rules, as they're written, the approving official, an official who's authorized to approve travel expenses, which first can exceed, as it's defined, we believe Ms. Fowler followed. The technical aspects or break of this is that the Oskar Lusah Post Office is in area seven of the UPA. The way she was supervised her at Oskar Lusah. The name escapes me. It was not Mr. Engaughan's postmaster in the Tumwa. I bow the area manager for a period of time was Ms. Baylek, but then she was replaced. So the short answer is her supervisor at Oskar Lusah or her supervisor at Pella were not the people approving her travel. Well, she was the OIC officer in charge of Pella in the structural diagram of the area four that was in the Diffrase Supervisor that wasn't stationed in Pella was stationed in the South of the point. Yeah. Under your interpretation, wouldn't that mean that any supervisor with a travel approval authority could approve her travel? Not necessarily. What matters is whether or not that individual has the authority, there is a logical reason

. Well, that's what I just asked. If a person has travel authorization, your theory is she could go to anybody. I believe that who she went to or she could go to somebody in California that had travel authorization and say, please approve my travel. If the, as we, as we interpret policy, as the Postal Service wrote the policy, technically you could do that. Yes. Well, how can that possibly be right? As we talked earlier, this isn't necessarily a norm or automatic that you get regular travel in these circumstances. Someone has to decide that it's a necessary pre-requisite that you have to be there overnight. Well, if you don't aren't supervising this employee with regard to her tasks and her responsibilities, how can you possibly be in a position to make that determination? The reason that Ms. Fowler believed that she had that authority is what Mr. Engelho did related to her from a conversation he claimed to have had with the system. Mr. Engelho continues to assert he had that conversation with the system saying that overnight stay would be required, the system is denied it. So what we're left with is what does the policy say? In the policy talks about an approving official. What the Postal Service says is that you have to prove it beforehand, right? The use of the prepared to submit the paperwork and have the trip approved before you were scheduled to depart. Was that done in the circumstances? Actually, I believe the policy, the 10-11, that they're talking about, is for non-bargaining unit employees. How do I describe that? I'm talking about the bargaining unit employees

. It does not apply to non-bargaining unit, which is working at A181. Does certain portions of this supply to bargaining unit and certain supply to non-bargaining unit? That's correct. So how do I know which applies to her? Well, the way that extended detail is, or the way that employees are on extended duty assignments, it says the appropriate approving official must extend all assignments, in writing. But the approval is based on a set of factors. To make followers, I'm sorry, I'm on A754. I believe that these regulations are written there twice. This is from the agencies, a public designation, 2-2.1.2. These says 754. Yeah, A754. But where the issue and the regulations comes down to, when does this become extended duty, and what is it a temporary assignment? Well, to understand, what I was thinking about was this pre-approval, and I'm looking at the right thing, on page 8754, my eye just clandestic, a third sentence, which said the approval should be, approval must approve all extended duty assignments on details in advance and in writing. Does that not include the travel authorization? Yeah, we'll do one of the factors, yes. But what this, what this follower testified is that, and it was Ms. Susner, who was looking for an individual to fill the pelvic vacancy. Ms

. Fowler was recommended. Ms. Fowler expressed concerns that she had to Mr. Engelhout about the cost and expense of doing this assignment. Now, she would have taken the assignment with her without the... Well, if he wasn't the one that did use the assignment, does that employ normally expected, and otherwise, if I have a concern about the assignment, I go to the person responsible for giving me the assignment to raise those pieces. Ms. Fowler believes that she had that from Ms. Susner via Mr. Engelhout. I don't understand that. Mr. Engelhout told her that her supervisor had delegated all of her supervisory authorities to him, and therefore he was now in charge of the assignment. Ms

. Susner had told Mr. Engelhout that she would be eligible for overnight or regular term. I mean, that's your view of the facts, but that's not what the board's how it is. The board disagreed with... Well, Mr. Engelhout's ability to do this is substantial evidence. This is not a no-go review for us. So, if she testified the opposite, isn't that substantial evidence to suggest that she never said that? What I'm arguing is credibility issues, even what they are, the policy says with the policy steps. The post office drafts the confusing people that have the authority and theory to approve travel with the actual approval on a day-to-day basis of people's supervisors. I am relying on the policies that the post office is an unseated in what they set. But didn't the post office also put on evidence that they expect people to have their supervisors approve travel? They also testify they have no written policy in that regard. Do they have to have a written policy? They have to, I believe, through the case that was kindly submitted by the government, the government has to prove that they do have this unwritten policy by the state. Is there testimony to that effect? There is. There is testimony as to the reason

. There is no doubt that this fellow knew that she had to get to stop approved by her supervisor because the government points to lots of different requests that she did get approved by Ms. Susanar, about pronouncing the name right. Correct. Why didn't she ask for her travel to be approved by her as well? As the record shows, she made an initial effort. Perhaps she should have made a more complete effort. But, well, clearly, she wasn't having an problem getting approvals from her supervisor because she did that for other things. She just didn't do it for travel. Because she was told by Mr. Engelhout to go ahead and submit travel submissions to him because he was an authorized approver. And she relied on credibility determinations were made specifically that it was not credible that she really couldn't get a hold of her supervisor for purposes of these travel submissions. So she may have said I tried and couldn't get a hold of my supervisor. But the administrative judge found that not to be credible and the board adopted that credibility determination. That's correct. But what I'm saying and what we are arguing is that the policy matters. What the policy is, what it says, the folks who are arguing that the written policy be clear. Overrides all these factual findings that the board made that are supportive based on central evidence

. The postal service should abide by the rules and policies Ms. Fowler did. She followed the literal terms of that policy. The policy means what it says, not what the postal service wants it to mean. They wrote it. They are responsible for its statements. If they wanted to say your immediate supervisor, your only thing that could have served you may be the only one who doesn't appreciate that it was your supervisor because it seems like all of the other players did. She said she tried to get her supervisor to approve it, but her supervisor was too busy. So at some level she understood this was the go-to person. You tell us that Mr. Engelhoff said not, I think you should do with this, but you told us earlier that he said, I talked to your supervisor and she said I could. So it seems like whether the ambiguity in the policy or not, everybody involved in this process understood that it's the supervisor, her supervisor, who's in charge of approving her travel. Why am I missing? That only that there is nothing improper about submitting a proper and correct travel expense to an approving official with Mr. Engelhoff was. Mrs. Schner as well

. Mrs. Schner got monthly reports of these expenses. The government or the agency doesn't contend that the amount allocated is improper only that she made the submission. Well, actually they do contend that she was only local expenses were allowable. And your argument is that somehow that was overcome by this informal conversation between Mrs. Schner and her original supervisor. But the rules are what they are. If she's not entitled to anything other than local expenses, then the rules say that the employee is responsible for only asking for allowable expenses. So couldn't that be the end of the inquiry? She asked for expenses that were not allowable regardless of who she asked. We believe that the policies entitled her to regular travel. What she was doing on that assignment was regular travel. As the post office says, most travel is. We believe that she was entitled to say overnight in the first instance. And you're usually not entitled to say overnight when it's something within your local commuting area. But it's not excluded by the regulations. It says 50 miles per year

. And you're viewing it. She's the one that gets to decide this. She's the one who expressed these concerns in Mr. Inglehout who said that he had talked to Mrs. Schner who said that that was the case. That's not credible though. I mean the board rejected all of that. You're arguing a version of the fact that the board didn't find. And we're not reviewing the no-bow your version of the fact. We're reviewing what the board found is supported by substantial evidence. What is there any place to suggest that her supervisor actually approved her staying overnight at a hotel in these places? The, except for this testimony that was rejected. The testimony that Ms. Fowler relied on is the testimony of Mr. Inglehout that the administrative law judge found not to be credible. That's correct. But we believe that the functional actions of what she was doing in that job is an OIC which another definition for regular travel is how long these assignments last

. This assignment had lasted five months and was, had no ending to it. It was indefinite. An indefinite assignment is an OIC also converted to regular travel. It's only how many miles away from her program at Judy station. 18 I believe the testimony is 70 miles away from all reasonable government employees would expect to get hotel for a detailed 18 miles away. I mean that's like from here to Dolos Airport. I mean people commute farther than that every day to DC. But the basis of how, but again the transformation from a temporary assignment into an extended, extended assignment also converts it to regular travel regardless of distance. Okay. Why don't we hear from the other side? Thank you. Thank you Chief Judge for all the minutes. Please record. The court should deny the review petition this matter and uphold the merit system protection for its conclusion affirming the agency's removal of this file. Because substantial evidence supports the determination that she claimed and received more than $13,000. Let me ask you just on the last point that your friend raised. Under the rules is there a sort of presumption of the matter's change of position is characterized as extended or indefinite. Does that create a presumption or automatic entitlement to have overnight travel in per day? No it does not. The rules are whether it's local travel or regular travel. So what if any impact does it have? This designation is something indefinite or extended position. What is the relevance of that in this case? Well as for the, I'm not actually sure you're on it and I would be happy to look at that further but my understanding of this matter is that because it was a detail the proper interpretation of what travel entitlement she had is done with reference to whether the travel claimed falls under the local travel or the regular travel rule. And I don't have a direct answer if you're on this question about the indefinite. Anywhere in the record what if anything occurred with respect to Mr. Eagle Hawk in terms of that in the record? Yes that is in the record. Mr. Eagle have first testified that he retired then toward the end of his test testimony he can see that he had been removed. Substantial evidence supports the agency's determination and basically two functional grounds. There's the issue of whether she's entitled to the expense and then there's the issue of who she submitted it to. Is there anything in writing that requires people to get travel approved by their immediate supervisors? There is. It's two dash 2.5 which can be found. Well it just says that each traveler is designated an approving official or approver exactly. Exactly

. Does that create a presumption or automatic entitlement to have overnight travel in per day? No it does not. The rules are whether it's local travel or regular travel. So what if any impact does it have? This designation is something indefinite or extended position. What is the relevance of that in this case? Well as for the, I'm not actually sure you're on it and I would be happy to look at that further but my understanding of this matter is that because it was a detail the proper interpretation of what travel entitlement she had is done with reference to whether the travel claimed falls under the local travel or the regular travel rule. And I don't have a direct answer if you're on this question about the indefinite. Anywhere in the record what if anything occurred with respect to Mr. Eagle Hawk in terms of that in the record? Yes that is in the record. Mr. Eagle have first testified that he retired then toward the end of his test testimony he can see that he had been removed. Substantial evidence supports the agency's determination and basically two functional grounds. There's the issue of whether she's entitled to the expense and then there's the issue of who she submitted it to. Is there anything in writing that requires people to get travel approved by their immediate supervisors? There is. It's two dash 2.5 which can be found. Well it just says that each traveler is designated an approving official or approver exactly. Exactly. But where was it designated that the approving official or approver was not Mr. Eagle Hawk? It doesn't say that that's correct and the regulations I'm first to admit are not polluted on the issue of immediate supervisor but here's what they do say. If you look at on page A757 section 2 dash 2.5 I'm going to read just two sentences. All e-travel expense reports must be electronically submitted to the specified approving official and approving official or approver is designated for each travel. So where was the designation for her? Absolutely. It talks about the specified approving official. It doesn't say any approving official. Where is the specification? The specification comes from the context of the entire handbook. For sure it does not say her immediate supervisor. That's true. It does not say that. And since Zuznjar she testified that she had approved expenses from outside her chain of command in the past. She had under circumstances that didn't exist in this context. The general rule about who approves agency travel was testified by many different witnesses and the rule it has emerged is that your immediate supervisor.

. But where was it designated that the approving official or approver was not Mr. Eagle Hawk? It doesn't say that that's correct and the regulations I'm first to admit are not polluted on the issue of immediate supervisor but here's what they do say. If you look at on page A757 section 2 dash 2.5 I'm going to read just two sentences. All e-travel expense reports must be electronically submitted to the specified approving official and approving official or approver is designated for each travel. So where was the designation for her? Absolutely. It talks about the specified approving official. It doesn't say any approving official. Where is the specification? The specification comes from the context of the entire handbook. For sure it does not say her immediate supervisor. That's true. It does not say that. And since Zuznjar she testified that she had approved expenses from outside her chain of command in the past. She had under circumstances that didn't exist in this context. The general rule about who approves agency travel was testified by many different witnesses and the rule it has emerged is that your immediate supervisor... But getting back to my question, there's nothing in writing about this. There's nothing in writing saying that says you have to go to your immediate supervisor. But everybody understands that you get a travel request approved by your supervisor. That's the tough ceremony. That's correct. And you're on our... I did not maintain her up to just a moment ago. There's nothing in writing saying immediate supervisor. But what there is is specified approving official. There's language that says an approving official is designated. It does not say any approving official, which undercuts..

.. But getting back to my question, there's nothing in writing about this. There's nothing in writing saying that says you have to go to your immediate supervisor. But everybody understands that you get a travel request approved by your supervisor. That's the tough ceremony. That's correct. And you're on our... I did not maintain her up to just a moment ago. There's nothing in writing saying immediate supervisor. But what there is is specified approving official. There's language that says an approving official is designated. It does not say any approving official, which undercuts... Okay, but the answer is no one was ever designated. Right? Except by this informal view that you think people sort of get that it's their immediate supervisor if it's definately. There was no... Perhaps there was nothing in the record saying that there was a written designation. However, a supervisor was definitely designated. And that's because of the ample record testimony and definitely substantial evidence that the postal service is a very chain of command type of organization. There's testimony. Is there testimony suggesting that, you know, they're during orientation or training or the like that travel request goes to your supervisor? I'm not aware if it was in that, but it is in the manual. It says, ordinarily, travel we approved by immediate supervisor. I believe that's maybe 4.1.1. I have it here. I can grab it

. Okay, but the answer is no one was ever designated. Right? Except by this informal view that you think people sort of get that it's their immediate supervisor if it's definately. There was no... Perhaps there was nothing in the record saying that there was a written designation. However, a supervisor was definitely designated. And that's because of the ample record testimony and definitely substantial evidence that the postal service is a very chain of command type of organization. There's testimony. Is there testimony suggesting that, you know, they're during orientation or training or the like that travel request goes to your supervisor? I'm not aware if it was in that, but it is in the manual. It says, ordinarily, travel we approved by immediate supervisor. I believe that's maybe 4.1.1. I have it here. I can grab it. Yes, it is. It is 4.1.1, which is A.1. I'll do it. But I thought your friend said that that just applied to far from here. Not to Miss Fowler. Maybe I misunderstood. But does this handbook apply smoothly to bargaining unit employees? I believe this handbook applies to all employees except for if there are any places where it is indicated that it is not. And here it says typically your immediate supervisor notifies you by not coming trip and then proceeds to talk about how you have to get approval ahead of time and those sorts of things. And my friend has not articulated a basis for saying that that is not applied. Moreover, even if it was not written, we do have ample testimony saying this is a chain of command situation. We knew the approving official for Carthage detail, for instance, was the person of the same rank as Suston Yarra, I don't mean to mention that, but it was the same approving official back when she was in the Carthage detail. So why did she not submit it to the equivalent person here? Because you are relying on your legal theory that was raised the first time in your supplemental filing which is that you can have an informal policy that becomes a policy. Is that right? Well, the legal basis of this we did discuss and apologies to the Court for only disclosing that

. Yes, it is. It is 4.1.1, which is A.1. I'll do it. But I thought your friend said that that just applied to far from here. Not to Miss Fowler. Maybe I misunderstood. But does this handbook apply smoothly to bargaining unit employees? I believe this handbook applies to all employees except for if there are any places where it is indicated that it is not. And here it says typically your immediate supervisor notifies you by not coming trip and then proceeds to talk about how you have to get approval ahead of time and those sorts of things. And my friend has not articulated a basis for saying that that is not applied. Moreover, even if it was not written, we do have ample testimony saying this is a chain of command situation. We knew the approving official for Carthage detail, for instance, was the person of the same rank as Suston Yarra, I don't mean to mention that, but it was the same approving official back when she was in the Carthage detail. So why did she not submit it to the equivalent person here? Because you are relying on your legal theory that was raised the first time in your supplemental filing which is that you can have an informal policy that becomes a policy. Is that right? Well, the legal basis of this we did discuss and apologies to the Court for only disclosing that. I mean, 1998 case, that case is old enough to have a driver's license. So why is it that it took you to yesterday to find it? We disclosed the case to the Court as soon as we learned that we had not included in the brief. I can't give you a better answer than that. But I do apologize for the delay in raising that. But the factual basis of that had been in the record the entire time because of all the testimony by witness after witness saying, yes, this is the policy. And even if we did raise it late and I do apologize against that, it is still the law. And there is evidence showing that this policy exists. And even if the Court were to conclude that the government was obligated to carry its burden of proving what's your best piece of evidence that this policy exists. We have testimony from Sutton R. herself who says that I was her supervisor and I would not have approved this. We also have testimony from the other witnesses, I believe, of Virg, Ms. Ryan, who is the deciding official. When you read them all together, or even one of them by itself is substantial evidence. Well, there are a lot of inconsistencies in their testimony, weren't there? There are a lot of inconsistencies in Ms. Fowler's testimony, which led her to be found not credible. But another piece of evidence to answer Judge Hughes's question is that Ms

. I mean, 1998 case, that case is old enough to have a driver's license. So why is it that it took you to yesterday to find it? We disclosed the case to the Court as soon as we learned that we had not included in the brief. I can't give you a better answer than that. But I do apologize for the delay in raising that. But the factual basis of that had been in the record the entire time because of all the testimony by witness after witness saying, yes, this is the policy. And even if we did raise it late and I do apologize against that, it is still the law. And there is evidence showing that this policy exists. And even if the Court were to conclude that the government was obligated to carry its burden of proving what's your best piece of evidence that this policy exists. We have testimony from Sutton R. herself who says that I was her supervisor and I would not have approved this. We also have testimony from the other witnesses, I believe, of Virg, Ms. Ryan, who is the deciding official. When you read them all together, or even one of them by itself is substantial evidence. Well, there are a lot of inconsistencies in their testimony, weren't there? There are a lot of inconsistencies in Ms. Fowler's testimony, which led her to be found not credible. But another piece of evidence to answer Judge Hughes's question is that Ms. Fowler herself knew that she needed to submit these travel vouchers to Ms. Sutton. And the way that we know that she knew is that of the various inconsistent and shifting explanations that she gave for why she only submitted them to Mr. Engelhock, one of the first times that she tried to submit one of these vouchers was that she tried to submit it to Ms. Sutton R. And that shows us that she knew about this policy. Now, she of course later changed her explanation and said, oh, will I try to do it in work? Well, then she said, I couldn't find her name in the system, or she said that my travel voucher was getting stale, even though the whole evening about nine days since the travel had started. So all of that is substantial evidence. So getting back to the two basic charges that were against her, fundamentally it was, you claimed expenses you weren't entitled to and you sent them to the wrong person. As of the first one, the adverse credibility finding is a sufficient basis to sustain that charge given the other evidence. And as for the other charge about submitting to the wrong person, there's ample record evidence supporting that as well. The fact that she had submitted to the same level of supervisor back in Carthage is just one example of the evidence to support that. And so once we get to the fact that there's substantial evidence supporting all of the removal charges, then the court's evaluation was the removal within the discretion of the agency. And here the agency considered all the Douglas factors, which the court is required to evaluate. The agency looked at the egregiousness of Ms. Fowler since conduct

. Fowler herself knew that she needed to submit these travel vouchers to Ms. Sutton. And the way that we know that she knew is that of the various inconsistent and shifting explanations that she gave for why she only submitted them to Mr. Engelhock, one of the first times that she tried to submit one of these vouchers was that she tried to submit it to Ms. Sutton R. And that shows us that she knew about this policy. Now, she of course later changed her explanation and said, oh, will I try to do it in work? Well, then she said, I couldn't find her name in the system, or she said that my travel voucher was getting stale, even though the whole evening about nine days since the travel had started. So all of that is substantial evidence. So getting back to the two basic charges that were against her, fundamentally it was, you claimed expenses you weren't entitled to and you sent them to the wrong person. As of the first one, the adverse credibility finding is a sufficient basis to sustain that charge given the other evidence. And as for the other charge about submitting to the wrong person, there's ample record evidence supporting that as well. The fact that she had submitted to the same level of supervisor back in Carthage is just one example of the evidence to support that. And so once we get to the fact that there's substantial evidence supporting all of the removal charges, then the court's evaluation was the removal within the discretion of the agency. And here the agency considered all the Douglas factors, which the court is required to evaluate. The agency looked at the egregiousness of Ms. Fowler since conduct. It evaluated the fact that she is a supervisor and had been one for about eight years, and the supervisors are entitled to be held to a higher level of responsibility. It looked at the fact that she did not accept responsibility for her misconduct, which again consisted of her submitting vouchers not to a manager, but rather to somebody who was a lateral with her, essentially another post inspector, postmaster, apologies, in another office, but certainly not one of the managers to whom she's been operating within a daily basis. For instance, she submitted her leave request to Ms. Susnar. She conferred weekly with Ms. Susnar on operational matters. So we know that she knew about this. So having considered all the Douglas factors and selected a reasonable penalty, there's no basis for the court, so overturn the agency decision and the mayor's system protection board. Thank you. Thank you. Mr. Herald, please move a minute left on the panel. Thank you. The one aspect that I didn't get addressed in my open portion was the nature of the penalty imposed on an employee that had no prior disciplinary records had been with the post to service for 16 years, for violating a policy that she followed the literal terms of, and the agency is arguing that she didn't follow what they believe they need. This is an individual who, the reason, so they made the determination that that employee should be terminated for following the proper procedure on expense factors and self enrichment. The self enrichment by Ms

. It evaluated the fact that she is a supervisor and had been one for about eight years, and the supervisors are entitled to be held to a higher level of responsibility. It looked at the fact that she did not accept responsibility for her misconduct, which again consisted of her submitting vouchers not to a manager, but rather to somebody who was a lateral with her, essentially another post inspector, postmaster, apologies, in another office, but certainly not one of the managers to whom she's been operating within a daily basis. For instance, she submitted her leave request to Ms. Susnar. She conferred weekly with Ms. Susnar on operational matters. So we know that she knew about this. So having considered all the Douglas factors and selected a reasonable penalty, there's no basis for the court, so overturn the agency decision and the mayor's system protection board. Thank you. Thank you. Mr. Herald, please move a minute left on the panel. Thank you. The one aspect that I didn't get addressed in my open portion was the nature of the penalty imposed on an employee that had no prior disciplinary records had been with the post to service for 16 years, for violating a policy that she followed the literal terms of, and the agency is arguing that she didn't follow what they believe they need. This is an individual who, the reason, so they made the determination that that employee should be terminated for following the proper procedure on expense factors and self enrichment. The self enrichment by Ms. Susnar's testimony was staying at a hotel and being seen at a hotel with Mr. Engelheim. When she was inquired, what is the self-polishie self enriching herself? They were married. The implicit belief without proof that they were having a relationship, which they both denied, played a substantial role in this discharge. Not, we would contend, the fact that the literal terms of the policy were followed. If she interpreted those policies wrong, the self enriching proportion, I know that Bella is a lovely town, but the holiday in at the moment is not exactly the four seasons. She, you have a final remark because we are out of time. Thank you.

14 3014 follow-over CPS USTS. Mr. Herald, you're never doing that. Thank you. May I please the court? My name is Robert Herald. I wanted to hold the minute. I was dressing your friend on the other side. He has no chance to unpack. There is quite a bit of the pack. My name is John Heraldson. And I represent the petitioner in this matter, Teresa Fowler, in regard to her termination after 16 years of service with the postal service. We're appealing the decision of the MSPB reaffirming, or affirming the decision of the administrative law judge below. Our position on this is that Ms. Fowler followed the express terms of a policy dealing with reimbursement of expenses incurred from a duty assignment in Tallahidh. Her normal assignment was to the Post-Cert, Post Office in Oskar, Lusah, Iowa. The towns are about 20 miles apart. Ms. Fowler provided that assignment. Are you saying that under just the regular travel rules given that she was placed in this position, which is still within the 50 mile radius of her duty station, that she is automatically entitled to travel in her dam? The regular particular policy says within, it has to be outside of 50 miles of regular travel, or if it requires an overnight stay. And who gets to determine what requiring an overnight stay on when the circumstance exists? Well, by the rules, as they're written, the approving official, an official who's authorized to approve travel expenses, which first can exceed, as it's defined, we believe Ms. Fowler followed. The technical aspects or break of this is that the Oskar Lusah Post Office is in area seven of the UPA. The way she was supervised her at Oskar Lusah. The name escapes me. It was not Mr. Engaughan's postmaster in the Tumwa. I bow the area manager for a period of time was Ms. Baylek, but then she was replaced. So the short answer is her supervisor at Oskar Lusah or her supervisor at Pella were not the people approving her travel. Well, she was the OIC officer in charge of Pella in the structural diagram of the area four that was in the Diffrase Supervisor that wasn't stationed in Pella was stationed in the South of the point. Yeah. Under your interpretation, wouldn't that mean that any supervisor with a travel approval authority could approve her travel? Not necessarily. What matters is whether or not that individual has the authority, there is a logical reason. Well, that's what I just asked. If a person has travel authorization, your theory is she could go to anybody. I believe that who she went to or she could go to somebody in California that had travel authorization and say, please approve my travel. If the, as we, as we interpret policy, as the Postal Service wrote the policy, technically you could do that. Yes. Well, how can that possibly be right? As we talked earlier, this isn't necessarily a norm or automatic that you get regular travel in these circumstances. Someone has to decide that it's a necessary pre-requisite that you have to be there overnight. Well, if you don't aren't supervising this employee with regard to her tasks and her responsibilities, how can you possibly be in a position to make that determination? The reason that Ms. Fowler believed that she had that authority is what Mr. Engelho did related to her from a conversation he claimed to have had with the system. Mr. Engelho continues to assert he had that conversation with the system saying that overnight stay would be required, the system is denied it. So what we're left with is what does the policy say? In the policy talks about an approving official. What the Postal Service says is that you have to prove it beforehand, right? The use of the prepared to submit the paperwork and have the trip approved before you were scheduled to depart. Was that done in the circumstances? Actually, I believe the policy, the 10-11, that they're talking about, is for non-bargaining unit employees. How do I describe that? I'm talking about the bargaining unit employees. It does not apply to non-bargaining unit, which is working at A181. Does certain portions of this supply to bargaining unit and certain supply to non-bargaining unit? That's correct. So how do I know which applies to her? Well, the way that extended detail is, or the way that employees are on extended duty assignments, it says the appropriate approving official must extend all assignments, in writing. But the approval is based on a set of factors. To make followers, I'm sorry, I'm on A754. I believe that these regulations are written there twice. This is from the agencies, a public designation, 2-2.1.2. These says 754. Yeah, A754. But where the issue and the regulations comes down to, when does this become extended duty, and what is it a temporary assignment? Well, to understand, what I was thinking about was this pre-approval, and I'm looking at the right thing, on page 8754, my eye just clandestic, a third sentence, which said the approval should be, approval must approve all extended duty assignments on details in advance and in writing. Does that not include the travel authorization? Yeah, we'll do one of the factors, yes. But what this, what this follower testified is that, and it was Ms. Susner, who was looking for an individual to fill the pelvic vacancy. Ms. Fowler was recommended. Ms. Fowler expressed concerns that she had to Mr. Engelhout about the cost and expense of doing this assignment. Now, she would have taken the assignment with her without the... Well, if he wasn't the one that did use the assignment, does that employ normally expected, and otherwise, if I have a concern about the assignment, I go to the person responsible for giving me the assignment to raise those pieces. Ms. Fowler believes that she had that from Ms. Susner via Mr. Engelhout. I don't understand that. Mr. Engelhout told her that her supervisor had delegated all of her supervisory authorities to him, and therefore he was now in charge of the assignment. Ms. Susner had told Mr. Engelhout that she would be eligible for overnight or regular term. I mean, that's your view of the facts, but that's not what the board's how it is. The board disagreed with... Well, Mr. Engelhout's ability to do this is substantial evidence. This is not a no-go review for us. So, if she testified the opposite, isn't that substantial evidence to suggest that she never said that? What I'm arguing is credibility issues, even what they are, the policy says with the policy steps. The post office drafts the confusing people that have the authority and theory to approve travel with the actual approval on a day-to-day basis of people's supervisors. I am relying on the policies that the post office is an unseated in what they set. But didn't the post office also put on evidence that they expect people to have their supervisors approve travel? They also testify they have no written policy in that regard. Do they have to have a written policy? They have to, I believe, through the case that was kindly submitted by the government, the government has to prove that they do have this unwritten policy by the state. Is there testimony to that effect? There is. There is testimony as to the reason. There is no doubt that this fellow knew that she had to get to stop approved by her supervisor because the government points to lots of different requests that she did get approved by Ms. Susanar, about pronouncing the name right. Correct. Why didn't she ask for her travel to be approved by her as well? As the record shows, she made an initial effort. Perhaps she should have made a more complete effort. But, well, clearly, she wasn't having an problem getting approvals from her supervisor because she did that for other things. She just didn't do it for travel. Because she was told by Mr. Engelhout to go ahead and submit travel submissions to him because he was an authorized approver. And she relied on credibility determinations were made specifically that it was not credible that she really couldn't get a hold of her supervisor for purposes of these travel submissions. So she may have said I tried and couldn't get a hold of my supervisor. But the administrative judge found that not to be credible and the board adopted that credibility determination. That's correct. But what I'm saying and what we are arguing is that the policy matters. What the policy is, what it says, the folks who are arguing that the written policy be clear. Overrides all these factual findings that the board made that are supportive based on central evidence. The postal service should abide by the rules and policies Ms. Fowler did. She followed the literal terms of that policy. The policy means what it says, not what the postal service wants it to mean. They wrote it. They are responsible for its statements. If they wanted to say your immediate supervisor, your only thing that could have served you may be the only one who doesn't appreciate that it was your supervisor because it seems like all of the other players did. She said she tried to get her supervisor to approve it, but her supervisor was too busy. So at some level she understood this was the go-to person. You tell us that Mr. Engelhoff said not, I think you should do with this, but you told us earlier that he said, I talked to your supervisor and she said I could. So it seems like whether the ambiguity in the policy or not, everybody involved in this process understood that it's the supervisor, her supervisor, who's in charge of approving her travel. Why am I missing? That only that there is nothing improper about submitting a proper and correct travel expense to an approving official with Mr. Engelhoff was. Mrs. Schner as well. Mrs. Schner got monthly reports of these expenses. The government or the agency doesn't contend that the amount allocated is improper only that she made the submission. Well, actually they do contend that she was only local expenses were allowable. And your argument is that somehow that was overcome by this informal conversation between Mrs. Schner and her original supervisor. But the rules are what they are. If she's not entitled to anything other than local expenses, then the rules say that the employee is responsible for only asking for allowable expenses. So couldn't that be the end of the inquiry? She asked for expenses that were not allowable regardless of who she asked. We believe that the policies entitled her to regular travel. What she was doing on that assignment was regular travel. As the post office says, most travel is. We believe that she was entitled to say overnight in the first instance. And you're usually not entitled to say overnight when it's something within your local commuting area. But it's not excluded by the regulations. It says 50 miles per year. And you're viewing it. She's the one that gets to decide this. She's the one who expressed these concerns in Mr. Inglehout who said that he had talked to Mrs. Schner who said that that was the case. That's not credible though. I mean the board rejected all of that. You're arguing a version of the fact that the board didn't find. And we're not reviewing the no-bow your version of the fact. We're reviewing what the board found is supported by substantial evidence. What is there any place to suggest that her supervisor actually approved her staying overnight at a hotel in these places? The, except for this testimony that was rejected. The testimony that Ms. Fowler relied on is the testimony of Mr. Inglehout that the administrative law judge found not to be credible. That's correct. But we believe that the functional actions of what she was doing in that job is an OIC which another definition for regular travel is how long these assignments last. This assignment had lasted five months and was, had no ending to it. It was indefinite. An indefinite assignment is an OIC also converted to regular travel. It's only how many miles away from her program at Judy station. 18 I believe the testimony is 70 miles away from all reasonable government employees would expect to get hotel for a detailed 18 miles away. I mean that's like from here to Dolos Airport. I mean people commute farther than that every day to DC. But the basis of how, but again the transformation from a temporary assignment into an extended, extended assignment also converts it to regular travel regardless of distance. Okay. Why don't we hear from the other side? Thank you. Thank you Chief Judge for all the minutes. Please record. The court should deny the review petition this matter and uphold the merit system protection for its conclusion affirming the agency's removal of this file. Because substantial evidence supports the determination that she claimed and received more than $13,000. Let me ask you just on the last point that your friend raised. Under the rules is there a sort of presumption of the matter's change of position is characterized as extended or indefinite. Does that create a presumption or automatic entitlement to have overnight travel in per day? No it does not. The rules are whether it's local travel or regular travel. So what if any impact does it have? This designation is something indefinite or extended position. What is the relevance of that in this case? Well as for the, I'm not actually sure you're on it and I would be happy to look at that further but my understanding of this matter is that because it was a detail the proper interpretation of what travel entitlement she had is done with reference to whether the travel claimed falls under the local travel or the regular travel rule. And I don't have a direct answer if you're on this question about the indefinite. Anywhere in the record what if anything occurred with respect to Mr. Eagle Hawk in terms of that in the record? Yes that is in the record. Mr. Eagle have first testified that he retired then toward the end of his test testimony he can see that he had been removed. Substantial evidence supports the agency's determination and basically two functional grounds. There's the issue of whether she's entitled to the expense and then there's the issue of who she submitted it to. Is there anything in writing that requires people to get travel approved by their immediate supervisors? There is. It's two dash 2.5 which can be found. Well it just says that each traveler is designated an approving official or approver exactly. Exactly. But where was it designated that the approving official or approver was not Mr. Eagle Hawk? It doesn't say that that's correct and the regulations I'm first to admit are not polluted on the issue of immediate supervisor but here's what they do say. If you look at on page A757 section 2 dash 2.5 I'm going to read just two sentences. All e-travel expense reports must be electronically submitted to the specified approving official and approving official or approver is designated for each travel. So where was the designation for her? Absolutely. It talks about the specified approving official. It doesn't say any approving official. Where is the specification? The specification comes from the context of the entire handbook. For sure it does not say her immediate supervisor. That's true. It does not say that. And since Zuznjar she testified that she had approved expenses from outside her chain of command in the past. She had under circumstances that didn't exist in this context. The general rule about who approves agency travel was testified by many different witnesses and the rule it has emerged is that your immediate supervisor... But getting back to my question, there's nothing in writing about this. There's nothing in writing saying that says you have to go to your immediate supervisor. But everybody understands that you get a travel request approved by your supervisor. That's the tough ceremony. That's correct. And you're on our... I did not maintain her up to just a moment ago. There's nothing in writing saying immediate supervisor. But what there is is specified approving official. There's language that says an approving official is designated. It does not say any approving official, which undercuts... Okay, but the answer is no one was ever designated. Right? Except by this informal view that you think people sort of get that it's their immediate supervisor if it's definately. There was no... Perhaps there was nothing in the record saying that there was a written designation. However, a supervisor was definitely designated. And that's because of the ample record testimony and definitely substantial evidence that the postal service is a very chain of command type of organization. There's testimony. Is there testimony suggesting that, you know, they're during orientation or training or the like that travel request goes to your supervisor? I'm not aware if it was in that, but it is in the manual. It says, ordinarily, travel we approved by immediate supervisor. I believe that's maybe 4.1.1. I have it here. I can grab it. Yes, it is. It is 4.1.1, which is A.1. I'll do it. But I thought your friend said that that just applied to far from here. Not to Miss Fowler. Maybe I misunderstood. But does this handbook apply smoothly to bargaining unit employees? I believe this handbook applies to all employees except for if there are any places where it is indicated that it is not. And here it says typically your immediate supervisor notifies you by not coming trip and then proceeds to talk about how you have to get approval ahead of time and those sorts of things. And my friend has not articulated a basis for saying that that is not applied. Moreover, even if it was not written, we do have ample testimony saying this is a chain of command situation. We knew the approving official for Carthage detail, for instance, was the person of the same rank as Suston Yarra, I don't mean to mention that, but it was the same approving official back when she was in the Carthage detail. So why did she not submit it to the equivalent person here? Because you are relying on your legal theory that was raised the first time in your supplemental filing which is that you can have an informal policy that becomes a policy. Is that right? Well, the legal basis of this we did discuss and apologies to the Court for only disclosing that. I mean, 1998 case, that case is old enough to have a driver's license. So why is it that it took you to yesterday to find it? We disclosed the case to the Court as soon as we learned that we had not included in the brief. I can't give you a better answer than that. But I do apologize for the delay in raising that. But the factual basis of that had been in the record the entire time because of all the testimony by witness after witness saying, yes, this is the policy. And even if we did raise it late and I do apologize against that, it is still the law. And there is evidence showing that this policy exists. And even if the Court were to conclude that the government was obligated to carry its burden of proving what's your best piece of evidence that this policy exists. We have testimony from Sutton R. herself who says that I was her supervisor and I would not have approved this. We also have testimony from the other witnesses, I believe, of Virg, Ms. Ryan, who is the deciding official. When you read them all together, or even one of them by itself is substantial evidence. Well, there are a lot of inconsistencies in their testimony, weren't there? There are a lot of inconsistencies in Ms. Fowler's testimony, which led her to be found not credible. But another piece of evidence to answer Judge Hughes's question is that Ms. Fowler herself knew that she needed to submit these travel vouchers to Ms. Sutton. And the way that we know that she knew is that of the various inconsistent and shifting explanations that she gave for why she only submitted them to Mr. Engelhock, one of the first times that she tried to submit one of these vouchers was that she tried to submit it to Ms. Sutton R. And that shows us that she knew about this policy. Now, she of course later changed her explanation and said, oh, will I try to do it in work? Well, then she said, I couldn't find her name in the system, or she said that my travel voucher was getting stale, even though the whole evening about nine days since the travel had started. So all of that is substantial evidence. So getting back to the two basic charges that were against her, fundamentally it was, you claimed expenses you weren't entitled to and you sent them to the wrong person. As of the first one, the adverse credibility finding is a sufficient basis to sustain that charge given the other evidence. And as for the other charge about submitting to the wrong person, there's ample record evidence supporting that as well. The fact that she had submitted to the same level of supervisor back in Carthage is just one example of the evidence to support that. And so once we get to the fact that there's substantial evidence supporting all of the removal charges, then the court's evaluation was the removal within the discretion of the agency. And here the agency considered all the Douglas factors, which the court is required to evaluate. The agency looked at the egregiousness of Ms. Fowler since conduct. It evaluated the fact that she is a supervisor and had been one for about eight years, and the supervisors are entitled to be held to a higher level of responsibility. It looked at the fact that she did not accept responsibility for her misconduct, which again consisted of her submitting vouchers not to a manager, but rather to somebody who was a lateral with her, essentially another post inspector, postmaster, apologies, in another office, but certainly not one of the managers to whom she's been operating within a daily basis. For instance, she submitted her leave request to Ms. Susnar. She conferred weekly with Ms. Susnar on operational matters. So we know that she knew about this. So having considered all the Douglas factors and selected a reasonable penalty, there's no basis for the court, so overturn the agency decision and the mayor's system protection board. Thank you. Thank you. Mr. Herald, please move a minute left on the panel. Thank you. The one aspect that I didn't get addressed in my open portion was the nature of the penalty imposed on an employee that had no prior disciplinary records had been with the post to service for 16 years, for violating a policy that she followed the literal terms of, and the agency is arguing that she didn't follow what they believe they need. This is an individual who, the reason, so they made the determination that that employee should be terminated for following the proper procedure on expense factors and self enrichment. The self enrichment by Ms. Susnar's testimony was staying at a hotel and being seen at a hotel with Mr. Engelheim. When she was inquired, what is the self-polishie self enriching herself? They were married. The implicit belief without proof that they were having a relationship, which they both denied, played a substantial role in this discharge. Not, we would contend, the fact that the literal terms of the policy were followed. If she interpreted those policies wrong, the self enriching proportion, I know that Bella is a lovely town, but the holiday in at the moment is not exactly the four seasons. She, you have a final remark because we are out of time. Thank you