[00:00:00] Speaker 04:
Now I'm going to call the matter of Smith versus Nevada DMV, case number 24-5060.

[00:00:06] Speaker 04:
Each side will have 10 minutes, and if you would like to reserve, if appellants would like to reserve time for rebuttal, please be aware you're responsible for keeping track of your own time.

[00:00:15] Speaker 04:
And you are Mr. Balaban?

[00:00:18] Speaker 02:
Balaban.

[00:00:18] Speaker 04:
Balaban.

[00:00:19] Speaker 04:
Thank you.

[00:00:20] Speaker 02:
And Your Honor, I would like to reserve two minutes.

[00:00:25] Speaker 02:
May it please the court, my name is Michael Balaban.

[00:00:29] Speaker 02:
I represent the plaintiff in this case, Christopher Smith.

[00:00:35] Speaker 02:
And the main issue, we're talking about a motion to dismiss here.

[00:00:41] Speaker 02:
And on a motion to dismiss, the court is supposed to look at everything in the non-moving party's favor, make all inferences for the non-moving party, and then decide whether

[00:00:55] Speaker 02:
the complaint was pled plausibly, which we feel it was here.

[00:01:01] Speaker 00:
Mr. Bellaman, that's as to facts, not as to conclusions or assertions.

[00:01:06] Speaker 00:
What?

[00:01:07] Speaker 00:
That is as to facts.

[00:01:08] Speaker 00:
Yeah.

[00:01:09] Speaker 00:
Now, would you point to the facts, not the assertions or the allegations, the facts that are sufficient for your case?

[00:01:18] Speaker 02:
Yeah, well, we've alleged that Mr. Smith worked for the DMV for a long period of time.

[00:01:32] Speaker 02:
Ten months prior to him trying to get this supervisor position, he was actually over the same guy, Mr. Ferriola,

[00:01:48] Speaker 02:
He was chosen for that other position.

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He had more experience at the DMV, the CED.

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He was a decorated law enforcement officer.

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And with respect to his work, we feel and it was pledged that he did

[00:02:10] Speaker 02:
better work closed all of his cases than Mr. Ferriola.

[00:02:14] Speaker 02:
But the main thing here is the court seemed to be hooked on this thing that Mr. Smith didn't have supervisory experience.

[00:02:26] Speaker 02:
But again, if he didn't have supervisory experience, why was he considered in the first place?

[00:02:32] Speaker 02:
Why was he even interviewed if supervisory experience was needed?

[00:02:39] Speaker 02:
The court on the last page of its order says Smith emits in his complaint that he lacked the supervisory experience that Ferrioli had, which that really isn't... Isn't that an allegation that a fact

[00:03:00] Speaker 00:
that can be interpreted to mean that he didn't have the same relative supervisory experience that Ferriolo had, not that he had no supervisory experience.

[00:03:10] Speaker 02:
Well, I mean, first of all, again, you're supposed to be, or the court is supposed to be, inferring for Mr. Smith, not against.

[00:03:20] Speaker 02:
But the court finishes and says, and at the position, he said, lacked supervisory experience, that the position, no doubt, required.

[00:03:34] Speaker 02:
I mean, he is making inferences.

[00:03:37] Speaker 02:
How does he know?

[00:03:39] Speaker 02:
the supervisory experience was needed.

[00:03:43] Speaker 02:
I mean, that's what discovery is for, and I intended to take the deposition of all these people that did the interviews but didn't get a chance because the motion to dismiss was granted, but I think it's... Council, I apologize for interrupting, but didn't that information come to light for the district court because of the complaint?

[00:04:06] Speaker 04:
I mean, doesn't the complaint say, and I quote, any supervisory experience that Smith lacked over Ferriolo was far outweighed by Smith's other qualifications and experiences?

[00:04:14] Speaker 04:
That is a sentence, I believe, that the district court found was a concession.

[00:04:17] Speaker 04:
Am I understanding that correctly?

[00:04:21] Speaker 02:
Well, I mean, I think you are, but again, the judge is then weighing the evidence.

[00:04:28] Speaker 02:
I mean, just because Mr. Ferrioli had supervisory experience doesn't mean he was the better qualified for that position.

[00:04:38] Speaker 02:
there's a number of attributes you got to look at.

[00:04:42] Speaker 02:
So, again, I mean, I get back to, well, if supervisory experience was absolutely needed, why was he even interviewed in the first place?

[00:04:55] Speaker 02:
I mean, why was Mr. Smith interviewed?

[00:04:58] Speaker 02:
And, you know, you get, and this is, I mean, African Americans throughout the years have said, I mean, they get,

[00:05:07] Speaker 02:
positions sometimes but they don't get promoted to supervisory positions because there's a at least the argument is is that they're not see they're not fit to do supervisory jobs and stuff and that I I think that could play in to the analysis here that Mr. Smith I mean he's now 61 if he if he he's never gonna get

[00:05:36] Speaker 02:
promoted as supervisor at this point and you know overall I mean the the current administration said now we're supposed to look at competence and and what not for jobs and we feel that Mr. Smith on the facts presented in the complaint was more competent than Mr. Ferriola

[00:06:00] Speaker 02:
not less competent.

[00:06:02] Speaker 03:
Is there anything in the record to show that it was important that the supervisory experience was important to the defendant in making the determination as to who gets this position?

[00:06:11] Speaker 02:
No, I mean that's another thing that's just being assumed because there's no indication, there was no discovery done, no depositions taken.

[00:06:22] Speaker 02:
That's just assumption that the judge made and that the DMV is arguing that somehow supervisory experience was needed.

[00:06:34] Speaker 02:
And again, there's nothing in the record that supports that.

[00:06:39] Speaker 02:
And that was just an inference that... What was the title of the position he was applying to?

[00:06:47] Speaker 02:
What?

[00:06:48] Speaker 04:
What was the title of the position he was applying?

[00:06:50] Speaker 02:
It was a supervisory position, but that doesn't necessarily mean that prior supervisory experience was needed.

[00:06:59] Speaker 02:
I mean, again, that's an inference made against Mr. Smith.

[00:07:04] Speaker 02:
If supervisory experience was needed for every supervisory position, then somebody would never be able to become a supervisor because they needed supervisory experience.

[00:07:16] Speaker 04:
It sounds like from the way that the complaint was drafted that there was a concession that supervisor experience was needed because it says any supervisor experience that Smith lacked.

[00:07:27] Speaker 04:
over Ferriolo was far outweighed by Smith's other qualifications and experience.

[00:07:31] Speaker 04:
So that leads me as a reader to believe, you believed, or your client believed, that there was some sort of supervisory experience necessary, but he may not have the same supervisory experience, but he has other experiences.

[00:07:47] Speaker 02:
could be interpreted that way.

[00:07:49] Speaker 02:
But again, and the complaint brings this out, when Mr. Smith specifically asked why he wasn't chosen, they could have very well said, hey, you didn't have the supervisory experience that Mr. Ferriola had.

[00:08:05] Speaker 02:
They didn't say that.

[00:08:06] Speaker 02:
They said, we're going in a different direction.

[00:08:09] Speaker 02:
So if that was the case, then why didn't they say that?

[00:08:12] Speaker 04:
Before your time is up, I do want to ask you about the argument that you've made about notice.

[00:08:20] Speaker 04:
What's your basis for your actual notice requirement?

[00:08:24] Speaker 04:
Because it's my understanding that, and the name just escaped me, but that they weren't properly served.

[00:08:30] Speaker 02:
Yeah, I mean, I looked at the statute, too, and technically probably they, because my understanding is Ms.

[00:08:39] Speaker 02:
Butler had to be served both at the Attorney General in Carson City, and that's the cap, the main Attorney General.

[00:08:49] Speaker 02:
and then the DMV in Las Vegas office, but that wasn't done.

[00:08:56] Speaker 02:
But again, she did have actual notice, and again, the proper thing to do would be, I think, to quash service and allow reservice if that's, you know, if she wasn't reserved, because again, she can't be served now if she's dismissed because it's passed the statute, so.

[00:09:19] Speaker 04:
And so what supports your authority that actual notice be the removes the need for service that what that it takes away the need for service.

[00:09:29] Speaker 02:
Well, I mean, I did cite some case law that said that not necessarily that actual notice is not needed, but that under the circumstances that it, because she'd be dismissed from the lawsuit and couldn't be reserved,

[00:09:55] Speaker 02:
that the better course of action would be to quash service and allow service to be redone.

[00:10:01] Speaker 00:
Your argument is that a person who has badly served has an affirmative duty to make a motion to quash?

[00:10:11] Speaker 02:
Well, yeah, the motion to quash... If it's a defective service, why can't you just ignore it?

[00:10:19] Speaker 02:
Well, yeah, I mean, again, I understand the argument that

[00:10:24] Speaker 02:
But, yeah.

[00:10:27] Speaker 00:
Okay.

[00:10:27] Speaker 00:
Thank you.

[00:10:28] Speaker 00:
All right.

[00:10:28] Speaker 02:
Thank you, counsel.

[00:10:33] Speaker 04:
I'll allow you your two minutes on rebuttal.

[00:10:35] Speaker 02:
Okay.

[00:10:36] Speaker 04:
Thank you.

[00:10:39] Speaker 04:
Thank you.

[00:10:40] Speaker 04:
Mr. Estrada?

[00:10:40] Speaker 04:
Yes, ma'am.

[00:10:41] Speaker 04:
All right.

[00:10:41] Speaker 04:
Thank you.

[00:10:42] Speaker 04:
Go ahead, sir.

[00:10:43] Speaker 01:
Good morning.

[00:10:44] Speaker 01:
May it please the court.

[00:10:45] Speaker 01:
My name is Matthew Estrada, Deputy Attorney General representing the respondents in this case.

[00:10:49] Speaker 01:
That is the state of Nevada Department of Motor Vehicles and Julie Butler, the director of the Nevada DMV.

[00:10:56] Speaker 01:
Now what informs the merits of this case is ultimately going to be the issue of futility.

[00:11:02] Speaker 01:
When reviewing a district court decision to grant a motion to dismiss, the standard review is de novo.

[00:11:09] Speaker 01:
This court held that a district court does not abuse its discretion to deny leave to amend when amendment would be futile.

[00:11:18] Speaker 01:
This is out of Gabrielson versus Montgomery Ward and Company.

[00:11:21] Speaker 01:
Now, granting leave to amend would ultimately be futile, even if Director Butler were to be allowed to be re-served.

[00:11:28] Speaker 00:
Mr. Estrada, can I interrupt you for just a second?

[00:11:31] Speaker 00:
Let's forget about amendment for just a second.

[00:11:34] Speaker 00:
Aren't the allegations of the complaint that notwithstanding the relative lack of supervisory experience of Smith versus Ferriola, the other merits of Smith's

[00:11:52] Speaker 00:
record the awards he's got the way he closes his cases could overcome the lack of relative experience aren't those facts plausible enough to establish a cause of action so your honor it's not we are not it's not our position that those qualities are irrelevant and yes it could be plausible that those qualities now ultimately the reason that

[00:12:22] Speaker 01:
that we are requesting that this case not be remanded is because ultimately it would prove futile.

[00:12:28] Speaker 01:
Again, even if we were to allow reservice, even if we were to allow additional facts to be pled into the complaint, ultimately, per the framework established in McDonnell Douglas v. Green, it is the burden of the plaintiff to establish a prima facie case of discrimination.

[00:12:44] Speaker 01:
If he in fact

[00:12:46] Speaker 01:
establishes that prima facie case, the burden then shifts to the defendant to establish the non-discriminatory reason as to why the decision was made.

[00:12:54] Speaker 04:
Counsel, are you saying that in this situation, Mr. Smith needed to make a prima facie case to survive a 12b6 motion?

[00:13:03] Speaker 01:
Not necessarily the 12b6 motion, Your Honor, however, to ultimately continue his case.

[00:13:08] Speaker 01:
And again, the ultimate point is that allowing this case to move further would simply be futile.

[00:13:13] Speaker 01:
And moving forward, again, the nondiscriminatory reason that we have is a reason that Mr. Smith has already acknowledged.

[00:13:20] Speaker 01:
The position that he ultimately applied for was the supervisory compliance and enforcement investigator position.

[00:13:26] Speaker 01:
And his acknowledgment that he lacked supervisory experience serves as our nondiscriminatory reason.

[00:13:32] Speaker 04:
Did the DMV not have knowledge that he lacked supervisory experience before they interviewed him?

[00:13:38] Speaker 01:
They did.

[00:13:39] Speaker 01:
We would have had access to his resume, things of that nature.

[00:13:42] Speaker 01:
Again, his time with the DMV.

[00:13:44] Speaker 01:
And again, it is not our position that those factors are completely irrelevant or even that he completely lacked supervisory experience.

[00:13:52] Speaker 01:
However, it is because of the qualities that he established that allowed him to be interviewed.

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that allowed him to get as far as he did.

[00:13:58] Speaker 01:
However, ultimately, at the end of the day, the supervisory compliance and enforcement investigator position, they decided to go, as was previously argued, in a different direction.

[00:14:09] Speaker 03:
What in the record shows that supervisory experience was a requirement for the position?

[00:14:15] Speaker 01:
Of what's currently pled, really nothing, Your Honor.

[00:14:18] Speaker 01:
However, it is in the title.

[00:14:19] Speaker 01:
Again, supervisory compliance and enforcement investigator.

[00:14:23] Speaker 01:
Now, although it was previously argued that, yes, perhaps if

[00:14:26] Speaker 01:
Nobody had supervisory experience.

[00:14:28] Speaker 01:
Nobody would be able to achieve it.

[00:14:30] Speaker 01:
However, in this case, again, it is not our stance that Mr. Smith completely lacked experience, but just lacked experience in favor of a different candidate.

[00:14:40] Speaker 03:
The trial court also said that because the plaintiff did not plead the comparator's specific age, that his pleadings were insufficient.

[00:14:55] Speaker 03:
It is pleading that the comparator was substantially younger than the plaintiff, not enough, and why not?

[00:15:03] Speaker 01:
So it is our argument that yes, that is in fact insufficient.

[00:15:09] Speaker 01:
Again, substantially younger could mean a variety of different things.

[00:15:13] Speaker 01:
And although the facts are meant to be looked at most favorable to the plaintiff, again, this leaves just too much room

[00:15:22] Speaker 01:
This just leaves too much room to the mind, to the imagination.

[00:15:25] Speaker 03:
Isn't it possible that the only way for the plaintiff to discover the comparator's age is to make it to discovery?

[00:15:31] Speaker 03:
And if you get dismissed on a 12b6, you're not ever going to make it to discovery?

[00:15:35] Speaker 01:
Well, that would be correct.

[00:15:36] Speaker 01:
However, given the context of this particular case, again, the issue would ultimately prove futile.

[00:15:42] Speaker 01:
At the end of the day, even if he's to establish his prima facie case, we get to that burden shifting.

[00:15:47] Speaker 01:
And again, Mr. Smith has already acknowledged that he lacked that supervisory experience.

[00:15:53] Speaker 01:
And according to the burden shifting, all that is required is a nondiscriminatory reason.

[00:15:58] Speaker 01:
And that would serve as the nondiscriminatory reason.

[00:16:01] Speaker 01:
Now again, it is our position that it isn't looking at each issue individually.

[00:16:05] Speaker 01:
Yes, would allowing reservice allow Ms.

[00:16:07] Speaker 01:
Butler to continue being a party?

[00:16:09] Speaker 01:
Absolutely.

[00:16:10] Speaker 01:
Would allowing him, granting leave to amend, allow him to maybe fill out some of the blanks that are left in the complaint as is currently pleaded?

[00:16:18] Speaker 01:
Yes.

[00:16:19] Speaker 01:
However, those factors would ultimately be

[00:16:22] Speaker 01:
fruitless because again our non-discriminatory reason is something that Mr. Smith has already acknowledged.

[00:16:29] Speaker 01:
There is no amount of facts that can be added that is going to address his lack of supervisory experience and even in fact looking at the second element

[00:16:38] Speaker 01:
for a discrimination claim, and this is going to be mirrored for both the race and age discrimination claim, is that Mr. Smith must establish that he was in fact qualified for the position that he sought.

[00:16:49] Speaker 01:
Not that he was more or less qualified in relation to other candidates, but in the fact that he was qualified for the position sought.

[00:16:57] Speaker 01:
And by his own acknowledgement, lacking that supervisory experience, in fact goes to prove that he is

[00:17:05] Speaker 01:
giving us a point in that perhaps he was not.

[00:17:08] Speaker 00:
But Mr. Strada, taking the allegation as favorably as we can to the plaintiff on the 12b6 motion, can Smith's complaint be interpreted to allege that he had some supervisory experience?

[00:17:26] Speaker 00:
In fact, he had this REA experience.

[00:17:29] Speaker 00:
But it wasn't as much as Ferriolo's and that

[00:17:35] Speaker 00:
The other attributes that he had, longer experience, awards, closing his cases, would overcome the relative lack of experience.

[00:17:48] Speaker 00:
Isn't that sufficient to make out a claim of pretext?

[00:17:53] Speaker 01:
Respectfully, Your Honor, we would argue that it's not.

[00:17:55] Speaker 01:
Again, Mr. Smith needs to establish that he was, in fact,

[00:18:00] Speaker 01:
qualified for the position and by acknowledging that he lacked that experience gives a point to show that he was not.

[00:18:07] Speaker 04:
So the title of the position is supervisory compliance slash enforcement investigator.

[00:18:13] Speaker 04:
So let's take out the supervisory.

[00:18:15] Speaker 04:
Did Mr. Smith have more compliance slash enforcement investigation experience.

[00:18:21] Speaker 01:
Yes, so I believe it actually is included in the complaint that he has spent some time with the DMV.

[00:18:26] Speaker 01:
I believe it was argued even here previously that he had received a promotion while at the DMV.

[00:18:31] Speaker 01:
But again, those qualities only go to serve that he was qualified for the position that he currently held.

[00:18:37] Speaker 01:
And although, again, those qualities are certainly worth consideration for the supervisory position that we're discussing.

[00:18:43] Speaker 04:
I guess what I'm asking, counsel, is why is it that the supervisory portion of that position, why are you giving that more weight than?

[00:18:52] Speaker 04:
So, for example, let's say Mr. Ferriolo didn't have any compliance or enforcement investigation experience at all, but he had supervisory experience and something that had nothing to do with compliance or enforcement.

[00:19:05] Speaker 04:
Are you telling me

[00:19:06] Speaker 04:
that he is still the better candidate?

[00:19:09] Speaker 01:
So given that nature of that hypothetical, again, there would probably need to be additional factors included.

[00:19:14] Speaker 01:
But if all he had was supervisory experience and no absolutely nothing for the compliance and enforcement investigator part of the role, again, that would probably be something that DMV would need to consider.

[00:19:25] Speaker 01:
And it's quite possible that they would ultimately decide to go with somebody with maybe a little bit more experience in both categories, as opposed to favoring one so heavily over the other.

[00:19:38] Speaker 04:
Any other questions from my colleagues?

[00:19:41] Speaker 04:
No?

[00:19:41] Speaker 04:
Thank you.

[00:19:42] Speaker 01:
Thank you.

[00:19:45] Speaker 04:
Okay, we've put two minutes back.

[00:19:46] Speaker 02:
Okay.

[00:19:48] Speaker 02:
Yes, Your Honor, just briefly, I mean, the council for the DMV, they, he admitted that it, as far as plausibility, that other experience could outweigh supervisory experience.

[00:20:09] Speaker 02:
And also, he admitted that nothing in the complaint is pled that supervisory experience is needed, or there's no evidence of that.

[00:20:21] Speaker 02:
So he made a big deal of they had a nondiscriminatory reason, but in all discrimination cases, the employer is going to have a nondiscriminatory reason.

[00:20:33] Speaker 02:
That doesn't necessarily mean that there wasn't discrimination.

[00:20:39] Speaker 02:
That's kind of weighing the evidence, which definitely at this point is not supposed to be done and not even done at summary judgment level.

[00:20:52] Speaker 02:
So again, and Your Honor, Justice Brown mentioned, I didn't touch on it with respect to age.

[00:21:03] Speaker 02:
And the district court didn't cite anything for his assertion, which also the DMV is making, that age can't be pled, that somebody's substantially younger on information and belief.

[00:21:22] Speaker 02:
And I think Justice Brown pointed out that how are we supposed to know the person's age?

[00:21:29] Speaker 02:
That's a private subject.

[00:21:31] Speaker 02:
Obviously, taking Mr. Ferriola's depositions, that is something I'd definitely ask him.

[00:21:41] Speaker 02:
So we would submit on that.

[00:21:44] Speaker 02:
And again, I think it was plausibly pled.

[00:21:48] Speaker 02:
And for that reason, I think the order of the district court should be overturned.

[00:21:53] Speaker 02:
Okay.

[00:21:53] Speaker 04:
Thank you, counsel.

[00:21:55] Speaker 04:
And thank you to both of you.

[00:21:55] Speaker 04:
This matter is now submitted.