[00:00:00] Speaker 03:
All right, we'll call our last case for argument this morning.

[00:00:04] Speaker 03:
24-3159 McCray versus Collins.

[00:00:11] Speaker 03:
It looks like we have our counsel ready.

[00:00:14] Speaker 03:
Ms.

[00:00:16] Speaker 03:
Randalls, got your name correct?

[00:00:20] Speaker 03:
Yes, Your Honor.

[00:00:21] Speaker 03:
All right, you may proceed when you're ready, please.

[00:00:23] Speaker 03:
Thank you, Your Honor.

[00:00:24] Speaker 03:
May it please the Court.

[00:00:25] Speaker 04:
My name is Rebecca Randles, and I represent Deshaun McCray in this matter.

[00:00:29] Speaker 04:
This is an employment discrimination case arising at the VA.

[00:00:32] Speaker 04:
Ms.

[00:00:33] Speaker 04:
McCray brought four causes of action, discrimination, harassment, retaliation, and constructive discharge.

[00:00:39] Speaker 04:
The Court granted summary judgment on all four claims, and for that action, the Court erred.

[00:00:45] Speaker 04:
There was a companion case, the Dial versus VA case that was successfully litigated and involved the very same facts and the very same circumstances save one.

[00:00:55] Speaker 04:
And that was that Ms.

[00:00:56] Speaker 04:
Dial actually quit the VA because of the discrimination while Ms.

[00:00:59] Speaker 04:
McCray took an unfavorable transfer to get out from under her Caucasian supervisor, Ruth Duda.

[00:01:06] Speaker 04:
Importantly, Ms.

[00:01:07] Speaker 04:
Dial and Ms.

[00:01:07] Speaker 04:
Duda were so overworked by the end of their 10 years at the VA, they were replaced by four people.

[00:01:14] Speaker 04:
The court

[00:01:15] Speaker 04:
in its 60th war page decision, limited plaintiff's complaints, then, one at a time, knock them out.

[00:01:26] Speaker 04:
The court became essentially an advocate for defense counsel, and honestly, defense counsel is quite good.

[00:01:32] Speaker 04:
They didn't need the court's advocacy in this matter.

[00:01:36] Speaker 04:
The plaintiff did establish that she had been treated less favorably than Caucasian employees in her supervisory chain.

[00:01:43] Speaker 02:
Are you talking about the summary judgment?

[00:01:49] Speaker 04:
Yes.

[00:01:51] Speaker 02:
What specific evidence did she present that there was a different treatment of the black nurses than the white nurses?

[00:02:03] Speaker 04:
She presented a lot of evidence.

[00:02:06] Speaker 04:
She presented it on three specific levels.

[00:02:09] Speaker 04:
First, she presented evidence of her own treatment.

[00:02:12] Speaker 04:
Secondly, she presented evidence of treatment of others in her same supervisory chain.

[00:02:17] Speaker 02:
And third, she showed evidence of individuals who weren't below her who were also black and whom the- Did she present any evidence that there were white nurses that were treated better?

[00:02:33] Speaker 04:
Yes, she did.

[00:02:34] Speaker 02:
She showed that... Tell me what that evidence is and tell me exactly the page in the record that I will find that.

[00:02:43] Speaker 04:
Well, I would have to pull out the record.

[00:02:45] Speaker 04:
I'm not sure I can... All right.

[00:02:47] Speaker 02:
Well, tell me, is it in her deposition?

[00:02:50] Speaker 02:
McCray's deposition?

[00:02:52] Speaker 04:
It is in her deposition.

[00:02:53] Speaker 02:
I thought she said in her deposition that Mrs. Duda treated the Caucasian nurses.

[00:03:01] Speaker 02:
She disciplined Caucasian nurses too.

[00:03:04] Speaker 02:
Didn't she say that?

[00:03:05] Speaker 04:
No, what she said was that since she was a supervisor, McCray was the supervisor, Duda would countermand any of the discipline that she would tell McCray to meet out to the Caucasian nurses, but she allowed that discipline for the exact same thing, no matter what it was, to go forward with the black nurses.

[00:03:25] Speaker 04:
So she was currying favor with the white nurses by saying, oh, Duda, I mean, McCray is being far too difficult on you.

[00:03:33] Speaker 02:
And you say that's in her deposition.

[00:03:35] Speaker 04:
It is in her deposition.

[00:03:38] Speaker 02:
All right.

[00:03:40] Speaker 02:
And you can't tell me what page is in the appendix or in the deposition where I will find that?

[00:03:48] Speaker 02:
I'm not sitting here at this moment, but I can say... Did you put that in your brief, the record citations, where I can find that?

[00:03:57] Speaker 04:
We did put it in the brief for the record citations.

[00:04:00] Speaker 04:
We also put it in the summary judgment.

[00:04:03] Speaker 02:
So you cited to her deposition, and I can go to those pages that you cite in your brief and see that she treated Caucasian nurses better than she treated

[00:04:18] Speaker 04:
Yes, you will find that specifically in three ways.

[00:04:22] Speaker 04:
You will find it with regard to discipline and the disciplinary actions that were meted out to the supervising the nurses that McCray was the supervisor over.

[00:04:33] Speaker 04:
You will also find it in the workload disparity between the blacks and the Caucasians.

[00:04:39] Speaker 04:
Ms.

[00:04:40] Speaker 04:
McCray and Ms.

[00:04:41] Speaker 04:
Dial testified with regard to the work disparity between them.

[00:04:45] Speaker 04:
But with regard to supervisors, there were only two supervisors and both of them were black.

[00:04:50] Speaker 04:
And so there is no information concerning similarly situated employees because the only supervisors at that point in time were people of color.

[00:05:03] Speaker 02:
And so... Well, doesn't your claim require

[00:05:07] Speaker 02:
that you show that there is different treatment afforded to people who are similarly situated.

[00:05:20] Speaker 02:
And you told me there was nobody similarly situated to the two black supervisory nurses.

[00:05:26] Speaker 04:
Well, just because you're a single individual working in an employment setting doesn't mean that they can then discriminate against you at will.

[00:05:37] Speaker 02:
The case law... Well, but the way discrimination by definition means that you treat one person differently than you treat another one who is similarly situated.

[00:05:49] Speaker 02:
So what I'm looking for is a similarly situated

[00:05:55] Speaker 02:
non-black person who was not treated in the same way as Ms.

[00:06:03] Speaker 02:
McCray was.

[00:06:04] Speaker 04:
Well, with regard to supervisors, there were only two supervisors and both of them were black.

[00:06:10] Speaker 04:
And so there will not be a similarly situated supervisor in this area.

[00:06:15] Speaker 04:
However, when you look at the manner in which all of the black nurses were treated, what you find is that all of the black nurses were treated very differently than the white nurses.

[00:06:25] Speaker 04:
And under the 10th circuit law, you don't have to have similarly situated individuals where the disparity is fairly clear.

[00:06:34] Speaker 00:
Mr. Randolph, can I go back?

[00:06:36] Speaker 00:
I'm sorry, Judge Murphy.

[00:06:40] Speaker 02:
You mentioned a bunch of emails.

[00:06:42] Speaker 02:
Are those emails in the record?

[00:06:44] Speaker 04:
Yes.

[00:06:45] Speaker 04:
The emails between Ruth Cummings and the plaintiff.

[00:06:50] Speaker 02:
No, no, no.

[00:06:50] Speaker 02:
I thought you referenced some other emails that indicated actual discriminatory conduct.

[00:06:55] Speaker 02:
Are those in the brief?

[00:06:56] Speaker 04:
No.

[00:06:56] Speaker 04:
The emails that are referenced in the brief concern the emails between the plaintiffs and Dr. Cummings, who was the second.

[00:07:05] Speaker 02:
Cummings.

[00:07:05] Speaker 02:
Okay.

[00:07:06] Speaker 02:
All right.

[00:07:06] Speaker 02:
Those are the only emails you talked about.

[00:07:09] Speaker 02:
Okay.

[00:07:09] Speaker 02:
Fine.

[00:07:09] Speaker 02:
I'm sorry, Judge Federico.

[00:07:10] Speaker 00:
Oh, you're good.

[00:07:12] Speaker 00:
Ms.

[00:07:12] Speaker 00:
Randalls, I wanted to ask to go back to your first sentence.

[00:07:15] Speaker 00:
You said that Ms.

[00:07:17] Speaker 00:
McCray raised four claims that were all dismissed at summary judgment.

[00:07:21] Speaker 00:
However, my reading of the record is that counts or claims two and four were actually dismissed at the pleading stage, one of them for failure to allege an element and the other for failure to exhaust.

[00:07:32] Speaker 00:
In your opening brief, did you adequately argue against the district court's reasoning

[00:07:39] Speaker 00:
for those dismissals such that we can consider that preserved before us on appeal.

[00:07:45] Speaker 04:
With regard to the dismissal for failure to exhaust, yes, that is adequately briefed in this briefing before the Court of Appeals.

[00:07:55] Speaker 04:
With regard to constructive discharge, she wasn't technically discharged, and so probably the court got that piece right that she wasn't discharged.

[00:08:03] Speaker 04:
Instead, she had a transfer to Colorado that was disadvantageous, which is the damage that results from the retaliation and the harassment and the discrimination that she experienced.

[00:08:14] Speaker 04:
And so I believe that all of the claims were completely exhausted, but with regard to constructive discharge, because she wasn't technically discharged and she didn't quit the agency, we have not proceeded further with that particular claim.

[00:08:30] Speaker 02:
Under constructive discharge.

[00:08:32] Speaker 02:
Under constructive discharge.

[00:08:34] Speaker 02:
You say there's no appeal of constructive discharge.

[00:08:37] Speaker 04:
Correct.

[00:08:38] Speaker 04:
We haven't provided any information concerning that claim.

[00:08:44] Speaker 02:
All right.

[00:08:47] Speaker 04:
Our biggest concern with regard to this case is the manner in which the court has limited, limited, limited the claims and then knocked them out.

[00:08:59] Speaker 04:
The court did this by first

[00:09:07] Speaker 04:
Acting as the trier of fact, accepting the defendant's statements of fact is true.

[00:09:12] Speaker 04:
Second, he limited plaintiff's claims to only discrete acts, even though the complaint, the informal complaint, the formal complaint, and the petition in front of this court all established that the acts were ongoing in nature.

[00:09:25] Speaker 04:
And that's basically- Counsel.

[00:09:27] Speaker 03:
Yes.

[00:09:29] Speaker 03:
If I understand your argument correctly or where you might be going is,

[00:09:35] Speaker 03:
as to the district court's treatment of the continuing violation doctrine here.

[00:09:39] Speaker 03:
Is that right?

[00:09:41] Speaker 03:
That's part of it.

[00:09:42] Speaker 03:
But the court also... Let me ask you about that.

[00:09:47] Speaker 03:
You agree that that does not apply when we're talking about your discrimination and retaliation claims, right?

[00:09:54] Speaker 04:
I would agree that the 10th Circuit case law at this point in time says that continuing violation is not a theory that can be followed in the 10th Circuit.

[00:10:04] Speaker 03:
Okay, so help me understand your argument about how the district court you claim erred in its treatment of the discrete acts here as part of its analysis of your discrimination and retaliation claims.

[00:10:21] Speaker 04:
Well, what the court did was it limited every claim to eight acts that were set forth in the acknowledgement letter sent by the agency, EEO officer.

[00:10:35] Speaker 04:
That's not proper.

[00:10:38] Speaker 04:
It's not proper on two bases.

[00:10:40] Speaker 04:
First, because anything that's like or related to those claims should also be part of the case pursuant to the law of the state.

[00:10:50] Speaker 04:
The second reason it's not correct is because she did allege ongoing harassment and ongoing retaliatory harassment in both her informal complaint, her formal complaint, and in the complaint before the court.

[00:11:05] Speaker 04:
knocking out all of the information in there that says, these acts continued from 2018 until the present indicates that there's a continuing issue that's going on.

[00:11:17] Speaker 04:
Then if he wants to just deal with discrete acts, you have to look at all of the discrete acts that were administratively exhausted, not just the discrete acts that were specifically listed in the acknowledgement letter from the EEOC,

[00:11:33] Speaker 04:
before the formal complaint is even investigated.

[00:11:36] Speaker 04:
Everything that comes out has to come out of the investigation, not just out of what is accepted.

[00:11:43] Speaker 03:
Doesn't our law say otherwise?

[00:11:45] Speaker 03:
I mean, isn't our law pretty clear that we're limited to the charge itself, the EEOC charge itself?

[00:11:53] Speaker 04:
No, the law of the state, the law of the circuit is that

[00:11:58] Speaker 04:
And it's Smith versus Cheyenne retirement investors.

[00:12:02] Speaker 04:
The law is that a claim is limited by the scope of the administrative investigation and the language is this, that can reasonably be expected to follow the charge of discrimination.

[00:12:17] Speaker 04:
In this case, the charge of discrimination said that between 2018 and the present, I have been discriminated against in the following ways.

[00:12:27] Speaker 04:
I have had my authority usurp.

[00:12:29] Speaker 04:
I have had my workload increased.

[00:12:32] Speaker 04:
I have had, and then she went through a series of those.

[00:12:35] Speaker 04:
Then,

[00:12:36] Speaker 04:
There were specific examples given in the formal complaint.

[00:12:39] Speaker 04:
There were eight specific examples identifying how each of those things had occurred, but that's not the whole of it.

[00:12:47] Speaker 04:
It's each of the times that she was usurped, each of the time that her authority was undermined, each of the times that there was a workload disparity or that her workload was increased.

[00:12:58] Speaker 04:
All of those things are part of this complaint.

[00:13:01] Speaker 04:
You cannot limit it to merely the eight things that were on the table that the agency picked out of her informal interview and out of her formal complaint.

[00:13:14] Speaker 04:
It has to be limited only by the scope of the administrative investigation.

[00:13:22] Speaker 04:
Now the court overly relied or they over extrapolated from the Smith case.

[00:13:27] Speaker 04:
In this case, all of the claims that plaintiff talks about in her summary judgment motion, in the petition, and in her appellate brief,

[00:13:37] Speaker 04:
were fully investigated.

[00:13:40] Speaker 04:
Not just that they were talked about during the course of this case, but they were investigated.

[00:13:46] Speaker 04:
And once they're investigated, then administrative exhaustion occurs.

[00:13:52] Speaker 04:
The court held that administrative exhaustion can't occur under Smith because it's limited solely to what's in the complaint.

[00:14:00] Speaker 04:
That isn't accurate.

[00:14:01] Speaker 04:
What the Smith case said was the information that is produced by the defendant

[00:14:08] Speaker 04:
cannot be used to expand the plaintiff's complaint.

[00:14:12] Speaker 04:
We don't have that situation here.

[00:14:15] Speaker 04:
In the administrative complaint itself, the plaintiff established, Ms.

[00:14:19] Speaker 04:
McCray said, these acts have been continuing from 2018 to the present in one of the situations.

[00:14:26] Speaker 04:
In the other one, she said, from 2019 to the present.

[00:14:30] Speaker 04:
And so those are, by nature, acts that occurred over and over and over again.

[00:14:36] Speaker 04:
To the extent any of those acts were investigated, those acts are part of this charge and part of this case, and they were administratively exhausted.

[00:14:55] Speaker 04:
The next thing that the court did, not only did it accept as true everything that the defendant alleged, even where plaintiff had specifically

[00:15:04] Speaker 04:
controverted those.

[00:15:06] Speaker 04:
The court accepted as true the defendant's allegations.

[00:15:09] Speaker 04:
That's improper.

[00:15:11] Speaker 04:
The court is to act solely, not as a super jury, but is to act solely to determine whether or not there's sufficient information in the complaint to allow the case to go forward to a jury.

[00:15:22] Speaker 04:
That didn't happen in this case.

[00:15:24] Speaker 04:
Instead, the court acted as a super jury, taking as true what the defendant had

[00:15:31] Speaker 04:
had produced.

[00:15:32] Speaker 04:
And there were situations such as what was said to Dr. Cummings, where there's only three people in the room, two of them testified that they told Dr. Cummings about discrimination and the court accepted that he was never told that discrimination had occurred when we have both the testimony and we have the emails.

[00:15:53] Speaker 04:
You're out of time.

[00:15:54] Speaker 03:
Thank you.

[00:15:55] Speaker 03:
Thank you, counsel.

[00:15:59] Speaker 03:
Mr. Vanderspey.

[00:16:01] Speaker 01:
Thank you.

[00:16:02] Speaker 01:
Can you hear me okay?

[00:16:04] Speaker 03:
We sure can.

[00:16:05] Speaker 01:
Yes.

[00:16:06] Speaker 01:
May it please the court.

[00:16:08] Speaker 01:
Brian Van Orsby on behalf of the Appellee Secretary Collins.

[00:16:12] Speaker 01:
The question in this case is not about whether Ms.

[00:16:13] Speaker 01:
McCray has friction with her supervisor.

[00:16:15] Speaker 01:
She clearly did.

[00:16:16] Speaker 01:
But Title VII protects against unlawful discrimination in personnel actions, not supervisory friction or workplace dissatisfaction.

[00:16:25] Speaker 01:
The district court applied the correct summary judgment standard.

[00:16:28] Speaker 01:
They credited Ms.

[00:16:29] Speaker 01:
McCray's facts, where they were supported by the record, to do reasonable and not unreasonable inferences in her favor, and still it concluded that the government was entitled to judgment as a matter of law.

[00:16:41] Speaker 01:
That's because no reasonable jury on the facts that were presented to the district court as summary judgment could have found in Ms.

[00:16:47] Speaker 01:
McCray's favor.

[00:16:49] Speaker 01:
There are many reasons why the district court's judgment should be affirmed, but I'd like to focus my presentation on three of those reasons subject to the court's questions.

[00:16:57] Speaker 01:
First.

[00:16:58] Speaker 02:
Well, since you gave us an opening for questions, Ms.

[00:17:05] Speaker 02:
Randall says that there's deposition testimony that

[00:17:13] Speaker 02:
white nurses were treated differently and better than black nurses.

[00:17:18] Speaker 02:
Was there specific testimony in the deposition to that effect?

[00:17:23] Speaker 01:
No, Your Honor, that would not be accurate.

[00:17:25] Speaker 01:
In fact, I did look through the record.

[00:17:26] Speaker 01:
I did locate in Ms.

[00:17:28] Speaker 01:
McCray's deposition where she specifically testified that Ms.

[00:17:32] Speaker 01:
Duda did recommend disciplinary action for Caucasian employees.

[00:17:35] Speaker 01:
There was nothing in the record to suggest that the

[00:17:40] Speaker 01:
discipline was then retracted or she was only made to suggest that McCray was coming down hard on the Caucasian nurses.

[00:17:48] Speaker 01:
And in fact, there's also deposition testimony specifically from Ms.

[00:17:51] Speaker 01:
McCray that Ms.

[00:17:52] Speaker 01:
Duda targeted Caucasian employees personally with hostile work environments.

[00:17:58] Speaker 01:
I believe one of the situations was Ms.

[00:18:00] Speaker 01:
Duda allegedly went to a Caucasian employee under her command in public and told her that she wasn't smart enough and that she should probably look for a new job.

[00:18:10] Speaker 01:
That's not great, but that's not discrimination.

[00:18:12] Speaker 01:
And in fact, that directly undercuts Ms.

[00:18:14] Speaker 01:
McCray's claim or allegation that there was racial animus on the part of Ms.

[00:18:19] Speaker 01:
Duda.

[00:18:23] Speaker 03:
What is your understanding of the best evidence in support of, on the discrimination claim that supports an inference here?

[00:18:38] Speaker 03:
What would be the best evidence in your view?

[00:18:40] Speaker 03:
It's kind of an unfair question, but I'm trying to focus us on what the record actually shows.

[00:18:48] Speaker 01:
The best evidence, Your Honor, I think, would be Ms.

[00:18:52] Speaker 01:
McCray's allegation that Ms.

[00:18:54] Speaker 01:
Duda, a year after she left her employment, made a statement to another African-American employee that, quote, she liked her headscarf.

[00:19:05] Speaker 01:
that she never understood why Tanisha Burks, who's another African-American employee, referred to as Aunt Jemima Scar.

[00:19:12] Speaker 01:
But still, that being the best evidence is not great for Ms.

[00:19:17] Speaker 01:
McCray because what the case law says in the 10th Circuit is that statements by another employee that have a racial undertone don't reflect racial animus by the decision-maker in this case.

[00:19:30] Speaker 01:
In fact,

[00:19:31] Speaker 01:
especially on the facts here where Ms.

[00:19:33] Speaker 01:
Duda says, I didn't understand that term to have racial connotations.

[00:19:37] Speaker 01:
And in fact, I was in the middle of trying to provide this employee with a compliment.

[00:19:44] Speaker 01:
It doesn't reflect any racial animus.

[00:19:47] Speaker 01:
And that is one of the points I wanted to talk about.

[00:19:51] Speaker 02:
Where in the appendix of the record do we find that, the Ann Jemima reference?

[00:19:59] Speaker 02:
Do you know?

[00:19:59] Speaker 01:
Your honor, just give me a moment.

[00:20:00] Speaker 01:
I can pull it up.

[00:20:02] Speaker 01:
But it is in the appendix?

[00:20:04] Speaker 01:
It is.

[00:20:04] Speaker 01:
I have it in the supplemental appendix.

[00:20:07] Speaker 01:
It is starting at page 1652.

[00:20:09] Speaker 01:
It's volume seven of the supplemental appendix.

[00:20:13] Speaker 01:
And you'll see it.

[00:20:14] Speaker 01:
And whose deposition is that?

[00:20:16] Speaker 01:
It's not from a deposition, your honor.

[00:20:18] Speaker 01:
It's a compendium of documents that Ms.

[00:20:22] Speaker 01:
McCray attached to her summary judgment response.

[00:20:26] Speaker 01:
Your honor, there's only one, well, there was two depositions taken in this case, one being Ms.

[00:20:30] Speaker 01:
McCray, the second being the facility director at the time.

[00:20:36] Speaker 01:
The deposition of the facility director was not used in summary judgment, so it's not in the record.

[00:20:43] Speaker 01:
So the only deposition that the court has to look at is Ms.

[00:20:46] Speaker 01:
McCray's deposition.

[00:20:48] Speaker 01:
There's other depositions from Ms.

[00:20:51] Speaker 01:
Dial's case that were attached.

[00:20:54] Speaker 02:
What about Mr. Cummings, Dr. Cummings?

[00:20:57] Speaker 01:
Is his deposition in the record?

[00:20:59] Speaker 01:
Dr. Cummings' deposition was taken in Ms.

[00:21:01] Speaker 01:
Diles' case.

[00:21:02] Speaker 01:
It wasn't taken in this case, so there wouldn't be any information specifically as to Ms.

[00:21:06] Speaker 01:
McCray necessarily in her claims.

[00:21:11] Speaker 01:
So it's not in this appendix?

[00:21:15] Speaker 01:
It is in this appendix.

[00:21:17] Speaker 02:
That's correct.

[00:21:18] Speaker 01:
It was taken in another case, but used in summary judgment in this case.

[00:21:21] Speaker 01:
I understand.

[00:21:22] Speaker 01:
Thank you.

[00:21:25] Speaker 01:
Just to get back to some of the points I want to talk about, because there is a very, I think, important point for this court to consider, which is, what is the appropriate standard for a federal employee to prove a claim for discrimination under Title VII?

[00:21:39] Speaker 01:
As we know, Ms.

[00:21:40] Speaker 01:
McCray is a federal employee.

[00:21:41] Speaker 01:
And under the federal sector provisions of Title VII, a federal employee must show that she suffered a personnel action in order to be successful.

[00:21:49] Speaker 01:
And non-controversial facts do not support that there is a personnel action in this case.

[00:21:54] Speaker 01:
Title VII of the federal sector provision of Title VII provides that all personnel actions shall be free from discrimination based on race.

[00:22:02] Speaker 01:
And the Supreme Court recently in BAP recognized that that term has a very specific and quote, easy to understand meaning under the Civil Service Reform Act by Section 5 USC 2302.

[00:22:13] Speaker 01:
A personnel action is a specific list of enumerated actions or what would fall into a catch-all any other significant

[00:22:21] Speaker 01:
changes in duties, responsibilities, or working conditions.

[00:22:25] Speaker 01:
We don't have that in this case.

[00:22:26] Speaker 01:
For example, Ms.

[00:22:27] Speaker 01:
McCray complains about being yelled at.

[00:22:30] Speaker 01:
That's not a personnel action.

[00:22:32] Speaker 01:
Countermanding instructions given by a subordinate is not a personnel action.

[00:22:38] Speaker 01:
Holding a coaching session with a mentor is not a personnel action.

[00:22:45] Speaker 01:
What about the question of inadequate training?

[00:22:49] Speaker ?:
Yes.

[00:22:49] Speaker 01:
That's one good point that we're going to get to.

[00:22:51] Speaker 01:
So under the statute, Section 5, or 5 USC 2302, there's a specific enumerated action for training, for a decision concerning training, if that decision might reasonably lead to another listed personnel action.

[00:23:07] Speaker 01:
It's important here to pause for a moment to take stock of what exactly is the decision at issue in this case.

[00:23:14] Speaker 01:
Ms.

[00:23:15] Speaker 01:
McCray, when she initially initiated this lawsuit, alleged that she was denied

[00:23:19] Speaker 01:
nurse manager training, but she did have to admit during her deposition that she actually was provided that training.

[00:23:26] Speaker 01:
And so the allegations shifted.

[00:23:28] Speaker 01:
Now she claims that the training was inadequate.

[00:23:30] Speaker 01:
And how was it inadequate?

[00:23:34] Speaker 01:
Ms.

[00:23:34] Speaker 01:
McCray alleges that she was given training by Ms.

[00:23:37] Speaker 01:
Duda, whereas a session where she showed her how to do the certain actions, the particular actions, essentially what she says is pointed and clicked and said, this is how you do it.

[00:23:47] Speaker 01:
From the government's perspective, that's not the type of decision regarding concerning training that might lead to a personnel action.

[00:23:54] Speaker 01:
A decision regarding the length or the specific content of the training is not that type of decision.

[00:24:02] Speaker 02:
That sounds to me like a fact question, not a legal question.

[00:24:06] Speaker 02:
And it should not be resolved in summary judgment.

[00:24:09] Speaker 01:
Your Honor, I don't think it's a fact question because the facts were uncontroverted.

[00:24:14] Speaker 01:
No one disagreed about how the training went down.

[00:24:18] Speaker 01:
I don't think it's a fact question for a jury to decide.

[00:24:21] Speaker 01:
The court can decide in the first instance whether or not that particular action qualifies as a personnel action.

[00:24:27] Speaker 01:
It's a legal question from the government's perspective.

[00:24:30] Speaker 03:
And counsel, what is the applicable law that we should look to to determine what constitutes a personnel action for the federal sector provision?

[00:24:42] Speaker 01:
If I'm understanding the

[00:24:43] Speaker 01:
question correctly, from the government's perspective, the applicable law to determine whether or not there's been a personnel action is Section 5, or I'm sorry, 5 U.S.C.

[00:24:52] Speaker 01:
2302, which defines personnel action.

[00:24:57] Speaker 01:
But I will say, Your Honor, if the Court proceeds to the catch-all, significant change in duties, responsibilities, or other working conditions, the Court can fall back to its prior precedent because, of course, this Court has for many years

[00:25:14] Speaker 01:
considered whether or not an adverse employment action had occurred as the question was whether or not that was a significant change in the working conditions.

[00:25:22] Speaker 01:
And so the court can fall back to that prior precedent to determine whether or not there's been a personnel action under the catch-all.

[00:25:30] Speaker 03:
Would that require more factual investigation in whether something falls under the catch-all?

[00:25:39] Speaker 01:
I don't think so, especially in this case, Your Honor, because the facts really were uncontroverted.

[00:25:44] Speaker 01:
The government and its motion for summary judgment primarily relied on Ms.

[00:25:49] Speaker 01:
McCray's own testimony to support his motion for summary judgment.

[00:25:55] Speaker 01:
And I will note, and I think this problem occurred both at summary judgment and I think in the briefing here, all of the facts that are presented to this court in Ms.

[00:26:07] Speaker 01:
McCray's appellate brief come from the pretrial order.

[00:26:10] Speaker 01:
I won't say all, the majority of them.

[00:26:12] Speaker 01:
And I think that's pretty telling because

[00:26:14] Speaker 01:
What the court doesn't have in those allegations in the pre-trial order is citations to the record to support that fact.

[00:26:21] Speaker 01:
And that was also an issue at summary judgment where the fact would say one thing and the citation, you look in the record, it says something different.

[00:26:28] Speaker 01:
And so part of the issue, I think, with Ms.

[00:26:30] Speaker 01:
Craze response in summary judgment of why the court concluded, the district court concluded what it did was that many of the facts presented by Ms.

[00:26:39] Speaker 01:
Craze simply did not have support in the record.

[00:26:42] Speaker 01:
And, of course, under Rule 56 and the Summary Judgment Standard, when those facts don't have support, the court doesn't have to credit them.

[00:26:51] Speaker 00:
I'm going to shift here.

[00:26:53] Speaker 00:
Can I ask a – I'm just trying to understand what's before us on appeal.

[00:26:57] Speaker 00:
You heard me ask Ms.

[00:26:59] Speaker 00:
Randalls about the hostile work environment constructive discharge claims, and she conceded constructive discharge has not been appealed.

[00:27:07] Speaker 00:
But she said that the hostile work environment, the second claim, was properly appealed.

[00:27:13] Speaker 00:
And that claim, as I understand it, was resolved on the pleadings.

[00:27:18] Speaker 00:
I read your response brief to disagree with that.

[00:27:21] Speaker 00:
And in fact, it's just by a footnote.

[00:27:23] Speaker 00:
In other words, you kind of see it as a gimme that she's not arguing.

[00:27:26] Speaker 00:
And that seems to matter here to me, because the hostile work environment has a separate doctor and of continuing violations.

[00:27:30] Speaker 00:
But what's your view of that?

[00:27:32] Speaker 01:
Yes, Judge Federico, that's absolutely correct.

[00:27:35] Speaker 01:
We don't believe that the hostile work environment claim has been appealed at all.

[00:27:40] Speaker 01:
If at most,

[00:27:41] Speaker 01:
Ms.

[00:27:41] Speaker 01:
McRae's brief has a sentence, one single sentence saying the hostile work environment claim shouldn't have been dismissed.

[00:27:47] Speaker 01:
And that's obviously not enough to put that issue before this court.

[00:27:53] Speaker 01:
One other thing I do want to mention on that note is Ms.

[00:27:57] Speaker 01:
McRae's claim that she has a retaliatory harassment claim.

[00:28:02] Speaker 01:
We believe that that claim has also been waived.

[00:28:05] Speaker 01:
The magistrate judge ruled that she had not brought that claim in her district court

[00:28:11] Speaker 01:
complaint.

[00:28:13] Speaker 01:
She did not appeal that decision by the magistrate judge.

[00:28:16] Speaker 01:
And the district court noted that in its order, that the issue wasn't before the district court to resolve because there had been no appeal.

[00:28:24] Speaker 01:
And so under the firm waiver doctrine, we believe that that issue has been waived and is not before this court.

[00:28:30] Speaker 01:
And so the only two issues before this court today are Ms.

[00:28:34] Speaker 01:
McCray's discrimination claim and her retaliation claim.

[00:28:38] Speaker 02:
Mr. Bannersby, I didn't understand exactly your point on the pre-trial order.

[00:28:45] Speaker 02:
Are you saying that in the pre-trial order, there are, there's no citation in the record, but there are assertions by Ms.

[00:28:57] Speaker 02:
McCray in there that have no basis in the actual record.

[00:29:04] Speaker 02:
They're just in the pre-trial order.

[00:29:07] Speaker 02:
understanding what you were saying?

[00:29:10] Speaker 01:
So your honor, it's.

[00:29:12] Speaker 01:
What I would say is the pre-trial order is not the summary judgment record, and so those facts were not before the district court.

[00:29:18] Speaker 01:
So those are not things the court considered, but what I think is telling is that the pre-trial order is just allegations.

[00:29:24] Speaker 01:
It doesn't require any support in the record.

[00:29:27] Speaker 01:
That's different.

[00:29:29] Speaker 01:
Doesn't matter anyway, because you're telling me the pre-trial order is not in the record.

[00:29:33] Speaker 01:
No, no, no, I'm sorry, your honor.

[00:29:35] Speaker 01:
I'm sorry if I was less include.

[00:29:36] Speaker 01:
The pre-trial order is in the record.

[00:29:38] Speaker 04:
Okay.

[00:29:39] Speaker 01:
What I'm saying is that the pretrial order is not the summary judgment record because rule 56 requires right citations to the record to support the allegations.

[00:29:51] Speaker 02:
I understand that.

[00:29:52] Speaker 02:
It was the portion of the pretrial order that counsel is referring to in citing it as evidence.

[00:30:04] Speaker 02:
They come under a title under a

[00:30:08] Speaker 02:
subtitled in the pre-trial order of claims and assertions?

[00:30:13] Speaker 02:
Or is it in the undisputed facts?

[00:30:17] Speaker 01:
Where is it?

[00:30:18] Speaker 01:
So it's in the allegation portion.

[00:30:19] Speaker 01:
The pre-trial order doesn't include undisputed facts.

[00:30:22] Speaker 01:
It's just to frame the case before the court.

[00:30:25] Speaker 01:
But it's clear they're denominated allegations and claims.

[00:30:30] Speaker 01:
Yes.

[00:30:31] Speaker 01:
Yes.

[00:30:32] Speaker 01:
OK.

[00:30:32] Speaker 01:
All right.

[00:30:33] Speaker 01:
That's all I want.

[00:30:34] Speaker 01:
Thank you.

[00:30:34] Speaker 01:
Yeah.

[00:30:34] Speaker 01:
But those allegations are functionally different than what is presented to the court on summary judgment, where we have to have citations to depositions, affidavits, declarations, those types of things.

[00:30:45] Speaker 01:
I only have 22 seconds left.

[00:30:47] Speaker 01:
I just want to mention my second and third points that the uncontroversial facts do not support an inference discrimination based on race.

[00:30:54] Speaker 01:
And that goes to the questions that you were asking my friend on the other side, Judge Murphy,

[00:31:00] Speaker 01:
There's nothing in the record to really support that there was any racial animus on the part of Ms.

[00:31:06] Speaker 01:
Duda.

[00:31:08] Speaker 03:
Well, other than her testimony, right?

[00:31:12] Speaker 01:
Other than Ms.

[00:31:12] Speaker 01:
McCray's unsupported speculation that racial animus must have been the reason for the actions Ms.

[00:31:21] Speaker 01:
Duda took.

[00:31:22] Speaker 01:
And this court has said many times that that type of evidence is not enough.

[00:31:26] Speaker 01:
It's not sufficient to overcome summary judgment.

[00:31:29] Speaker 01:
But we need to explore specific facts, some evidence of discrimination in the actions that Ms.

[00:31:35] Speaker 01:
Duda took.

[00:31:35] Speaker 01:
And that's just not in this case.

[00:31:37] Speaker 02:
Is it your position that these statements in the deposition are generalities and there is no examples

[00:31:54] Speaker 01:
Is that fair?

[00:31:55] Speaker 01:
Is that what you're saying?

[00:31:57] Speaker 01:
That's fair.

[00:31:58] Speaker 01:
And it's important to note that the statements that Ms.

[00:32:00] Speaker 01:
McCray relies on from her deposition were actually questions I asked her to read her complaint, say, this is your allegation or your complaint.

[00:32:10] Speaker 01:
Tell me about that.

[00:32:11] Speaker 01:
And so it's important to note that as well.

[00:32:14] Speaker 01:
But specifically, there's no specific examples from Ms.

[00:32:18] Speaker 01:
McCray and her deposition testimony, of course.

[00:32:22] Speaker 01:
She had a full discovery period to obtain any evidence that she thought she needed to support her case.

[00:32:27] Speaker 01:
She did not present that in summary judgment.

[00:32:29] Speaker 01:
And just finally, my last point, Ms.

[00:32:31] Speaker 01:
McCray has not presented any evidence from which a reasonable jury could infer that Ms.

[00:32:37] Speaker 01:
Duda had knowledge of Ms.

[00:32:39] Speaker 01:
McCray's protected activity.

[00:32:41] Speaker 01:
And with that, Your Honor, I'd ask that the court follow the record, not the rhetoric, and affirm the district court's opinion.

[00:32:48] Speaker 01:
Thank you.

[00:32:49] Speaker 03:
Thank you, counsel.

[00:32:49] Speaker 03:
Thank you both for your helpful arguments.

[00:32:52] Speaker 03:
case will be submitted.

[00:32:53] Speaker 03:
And I think that concludes our four cases for argument this morning.

[00:32:57] Speaker 03:
Court will be in recess until tomorrow morning at nine and counsel are dismissed.

[00:33:03] Speaker 03:
Thank you.