[00:00:00] Speaker 01:
24-3110, Tartt v. United School District 475.

[00:00:10] Speaker 01:
Council for Appellant, if you'd make your appearance and proceed, please.

[00:00:14] Speaker 05:
Thank you, Your Honor.

[00:00:15] Speaker 05:
My name is Randy Rathbun.

[00:00:17] Speaker 05:
I will likewise bravely try and suggest that I'm going to reserve three minutes, but I don't know how that's going to go.

[00:00:26] Speaker 05:
Mary A. Tartt had earned her retirement.

[00:00:29] Speaker 05:
She had spoiled for years as a special ed teacher and then later as a principal in the schools of Alabama for decades.

[00:00:41] Speaker 05:
She was visited upon so many different recommendations.

[00:00:47] Speaker 05:
She was committed by the governor's office.

[00:00:49] Speaker 05:
There was actually an article in the US News and World Report on her efforts in turning around schools in Alabama.

[00:00:56] Speaker 05:
She worked tirelessly and frankly at the end thought that she had earned her retirement.

[00:01:03] Speaker 05:
On February the 13th of 2020, she got a call from the superintendent of schools in Junction City who said, I need your help again because she had worked with him for a decade in the past.

[00:01:16] Speaker 05:
He said, I need you to come to Junction City because Junction City High School

[00:01:21] Speaker 05:
has 80% of our students are failing to meet minimum standards in math, and 65% are failing to meet minimum standards in English language.

[00:01:34] Speaker 05:
The sacrifice was a big one for her.

[00:01:37] Speaker 05:
She had to move from Alabama.

[00:01:40] Speaker 05:
She sold her house.

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She was the principal caregiver for her mother, but she moved because it was a challenge that she could not say no to.

[00:01:49] Speaker 05:
She's left now with the reputation that's in shatters.

[00:01:54] Speaker 05:
She goes virtually not a day without thinking about the horrible way she was treated there.

[00:02:01] Speaker 01:
Ms.

[00:02:02] Speaker 01:
Rathbun, I think we're all familiar with the case, and so let me just try to cut to some of the issues here.

[00:02:09] Speaker 01:
Let's assume for the moment that the court could permissibly disregard certain portions of the affidavits, okay?

[00:02:18] Speaker 01:
Let's assume that it had the power to do that.

[00:02:21] Speaker 01:
But it did not undertake that function

[00:02:25] Speaker 01:
appropriately as it relates in particular to Ms.

[00:02:28] Speaker 01:
Toomey's affidavit.

[00:02:29] Speaker 01:
Let's say there are certain parts that it disregarded, it should not have disregarded.

[00:02:34] Speaker 01:
What do you think the remedy should be?

[00:02:36] Speaker 01:
I mean, should we remand to allow the court to conduct a summary judgment analysis

[00:02:41] Speaker 01:
with the now proper universe of information?

[00:02:46] Speaker 01:
Or should we, de novo, say, okay, court, you shouldn't have excluded paragraphs, whatever, so we're putting those in and we're going to do the summary judgment analysis?

[00:02:56] Speaker 01:
What do you think is the proper way to proceed?

[00:03:00] Speaker 05:
As you know, Your Honor, as you mentioned, you have de novo review on this, and you, of course, have the

[00:03:06] Speaker 05:
the right to look at it in an inference that favors my client.

[00:03:10] Speaker 05:
I don't care which one we do frankly because I think if the court would take a serious look at this case,

[00:03:17] Speaker 05:
then it cries out for help because I went to the person that was the HR director of the year that Ms.

[00:03:27] Speaker 05:
Hart was hired.

[00:03:30] Speaker 05:
She says, I can tell you that she was the only one that wasn't getting an evaluation.

[00:03:37] Speaker 05:
These other teachers were getting an evaluation.

[00:03:40] Speaker 05:
My client never got an evaluation.

[00:03:42] Speaker 05:
In fact, the only evaluation she got was phonied up so it appeared like she had been evaluated in January, and that actually happened in April.

[00:03:52] Speaker 03:
Well, the problem is, you're talking about Ms.

[00:03:54] Speaker 03:
Toomey now, the former HR, who was there her first year, the plaintiff's first year.

[00:03:59] Speaker 03:
Paragraph 11, she says, I was not aware of her affidavit.

[00:04:03] Speaker 03:
I was not aware that Eggleston and Gustafson were not giving Mary the plain of the evaluations that Kansas law requires.

[00:04:10] Speaker 03:
I was not aware.

[00:04:12] Speaker 03:
So where's the personal knowledge here?

[00:04:15] Speaker 03:
And that's what Judge Melgren said.

[00:04:16] Speaker 03:
She speculates, well, she should have been given it.

[00:04:19] Speaker 03:
She was the only one who wasn't.

[00:04:21] Speaker 03:
She wasn't there.

[00:04:22] Speaker 05:
Actually, she was.

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She didn't know.

[00:04:25] Speaker 03:
Even if she was there, she didn't know.

[00:04:27] Speaker 05:
Judge, she was there the first year.

[00:04:29] Speaker 05:
And she testified, when I was there, the other principals were being evaluated.

[00:04:34] Speaker 03:
My client should have had... But she says she wasn't aware that she wasn't evaluated.

[00:04:39] Speaker 03:
So how can she then speculate about what the reasons were that she wasn't evaluated?

[00:04:43] Speaker 05:
All she can say is she can get in front of the jury and say, it was my job under Kansas law to make sure that she was evaluated every semester for the first two years.

[00:04:54] Speaker 05:
I know that the other principals were being evaluated because that was my job and I also put the superintendent and the associate superintendent on notice that they needed to do that.

[00:05:07] Speaker 05:
That to me shows something is going on here.

[00:05:10] Speaker 03:
How does that create, even if we assume that's the case, that she does have personal knowledge and as Judge Holm suggested that there's some part of this affidavit that should have been considered by Judge Melvin, how does that part of the affidavit about the first year evaluation show pretext when she actually ends up, she doesn't have any problem that first year, it's the second year,

[00:05:33] Speaker 03:
She gets a contract.

[00:05:35] Speaker 03:
She gets a contract as she's an acting principal, right?

[00:05:39] Speaker 03:
And then she ends up, after her first year, getting the full-time principal position.

[00:05:44] Speaker 03:
So where's the pretext with respect to that action?

[00:05:49] Speaker 05:
She had a very successful first year.

[00:05:52] Speaker 05:
Then suddenly, she isn't over.

[00:05:58] Speaker 03:
Well, do you see what I'm asking you though?

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You've got to connect this.

[00:06:02] Speaker 03:
All of this has to be connected somehow to pretext.

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And that's a problem here.

[00:06:07] Speaker 05:
Here's the thing.

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You can't terminate someone without a good faith basis.

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And the way you get a good faith basis is to do an evaluation.

[00:06:14] Speaker 05:
They violated the law four times.

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They were required to do an evaluation.

[00:06:19] Speaker 03:
And she got a full contract despite that.

[00:06:22] Speaker 05:
Well, we know the first year she did until it came to the point where

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The new board president decided she wasn't going to get it.

[00:06:33] Speaker 05:
She didn't get it.

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Obviously, I need to be frank about this.

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This whole case to me turns on Ron Johnson.

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And Ron Johnson, I mean, we have shown through like the number two

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The number two supervisor in the district throughout was referring to him as a racist.

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There was repeated discussions of him coming to the school uninvited, walking around looking for negative stuff on Ms.

[00:07:00] Speaker 05:
Tartt.

[00:07:02] Speaker 01:
Let me, if I may, ask two more questions about the affidavits.

[00:07:06] Speaker 01:
As it relates to the Toomey affidavit, we're following up to some extent on Judge Moritz's line of questioning.

[00:07:14] Speaker 01:
What is the theory under which you're presenting the Toomey affidavit?

[00:07:18] Speaker 01:
I mean, because if the question is, is she a fact witness and essentially a witness who was there during the period and could speak to that,

[00:07:27] Speaker 01:
There's a problem.

[00:07:28] Speaker 01:
I mean it's almost as if what you're trying to do is suggest that she was some sort of lay expert witness in which she had knowledge of all of these things and therefore could speak about them.

[00:07:40] Speaker 01:
These are the best practices or these are the practices that existed when I was there and therefore I'm speaking to that issue.

[00:07:48] Speaker 01:
This is what the lay of the land should have been.

[00:07:52] Speaker 01:
What's the theory under which this evidence would have been?

[00:07:57] Speaker 01:
Thank you, Your Honor.

[00:08:00] Speaker 05:
My theory is simply this.

[00:08:02] Speaker 05:
All the others were getting, all the other principals were getting evaluations.

[00:08:06] Speaker 05:
Ms.

[00:08:06] Speaker 05:
Tarr wasn't.

[00:08:08] Speaker 05:
You cannot legally terminate someone without evaluating them.

[00:08:14] Speaker 01:
I guess just the point would be that in year two, Ms.

[00:08:20] Speaker 01:
Toomey was not there.

[00:08:22] Speaker 01:
And if she's going to be speaking to whether people were getting evaluations or not, it would be difficult for her to do that if she was not there.

[00:08:30] Speaker 01:
If the theory for these aberrants in the affidavit

[00:08:34] Speaker 01:
If that theory was she's essentially a fact witness who was present, she knew they weren't getting the evaluations, that's one line of admitting it.

[00:08:44] Speaker 01:
Another would be that basically she's a HR expert who happens to be familiar with the practices of the district, and she says, well, this is what they should do, and then the question is, I believe, I've been told she wasn't doing it.

[00:09:01] Speaker 01:
That's what I understand to be going on in this affidavit.

[00:09:04] Speaker 05:
At the very least, Your Honor, there was an inference here based upon the fact that the year she was there, all other principles got evaluated and she didn't.

[00:09:15] Speaker 05:
And I think the inference that you draw there is that, for some reason, she was not being evaluated.

[00:09:21] Speaker 01:
And the evidence that she wasn't being evaluated would be coming from a different source.

[00:09:25] Speaker 01:
That is coming from Ms.

[00:09:27] Speaker 01:
Tartt and others.

[00:09:28] Speaker 01:
Absolutely.

[00:09:28] Speaker 01:
Right.

[00:09:29] Speaker 01:
Okay.

[00:09:30] Speaker 01:
Quickly, on Mr. Jacobson and Ms.

[00:09:33] Speaker 01:
Tartt's affidavits, the disregarding portions that the district court did, I don't see any objection to that.

[00:09:40] Speaker 01:
You seem to be focusing on Toomey.

[00:09:42] Speaker 01:
Am I correct in that?

[00:09:44] Speaker 05:
No, Your Honor, and here's the reason why.

[00:09:46] Speaker 05:
I did talk about Jacobson's son simply because this turned into a war of affidavits, and they lined up a bunch of people to say that my client was an ogre.

[00:09:58] Speaker 05:
Both in the Toomey, the Jacobson affidavits, I brought out the fact that they talked about

[00:10:04] Speaker 05:
what a great principal she was, what a caring individual she was.

[00:10:08] Speaker 05:
And had I known this was going to turn into a war affidavit, I would have submitted more affidavits.

[00:10:12] Speaker 01:
Okay, well that's past tense.

[00:10:13] Speaker 01:
I'm talking about on appeal now.

[00:10:16] Speaker 01:
Are you focusing only on Toomey is what I'm getting at.

[00:10:20] Speaker 01:
That's what I sensed in your briefing.

[00:10:22] Speaker 05:
No, I mentioned in the Jacobson affidavit, it was offered on pretext in terms of they said, well, there was no calendar put together and I offered his

[00:10:33] Speaker 05:
the affidavit to show, indeed, there was countering being done, it was available to everybody.

[00:10:38] Speaker 01:
So you're objecting to the court's disregarding of portions of the Jacobson affidavit on appeal?

[00:10:43] Speaker 01:
Absolutely.

[00:10:44] Speaker 05:
Okay.

[00:10:46] Speaker 05:
Your Honor, it's just simply, this is a tough case because, frankly, when you have all the power, it is easy to get people to be negative about someone.

[00:11:02] Speaker 05:
I found two witnesses that I thought absolutely controverted the stuff that the defendant was saying.

[00:11:09] Speaker 05:
And in hindsight, I shot five or six more affidavits.

[00:11:15] Speaker 05:
So if we're going to have a real decision on affidavits, at least my full side could have got her.

[00:11:22] Speaker 03:
Well, you have the fact that once she becomes the actual principal,

[00:11:29] Speaker 03:
She hires, as I understand it, three assistant principals.

[00:11:34] Speaker 03:
And each one of them then is complaining about her behavior towards them, and therefore hires.

[00:11:42] Speaker 03:
And that's one of the primary reasons that the district gives for terminate her.

[00:11:48] Speaker 03:
along with some other task being behind schedule and these administrators looking to leave because of her behavior.

[00:11:59] Speaker 03:
But they also recognized that there were a lot of people who really liked her and there were a lot of people who were really

[00:12:06] Speaker 03:
offended by her.

[00:12:08] Speaker 03:
And so it was one of those situations, yeah.

[00:12:12] Speaker 05:
And that's the problem.

[00:12:13] Speaker 03:
But the people she hired as her assistant principals, how do you address that?

[00:12:18] Speaker 03:
That certainly doesn't help your pretext argument.

[00:12:21] Speaker 05:
I tried to address that in her affidavit showing that

[00:12:25] Speaker 05:
Her behavior was not the motivating factor for some of these people leaving.

[00:12:31] Speaker 05:
And I think she adequately explained that in her affidavit, and certainly to the inferences that we're entitled to on summary judgment, I think that carries the day there.

[00:12:39] Speaker 03:
Now, clearly, I... Well, the question is whether the employer, you know, in good faith, believed that these were the reasons.

[00:12:49] Speaker 03:
If their reasons for her termination of her employment were in good faith,

[00:12:54] Speaker 03:
That's what matters.

[00:12:55] Speaker 05:
But as this court knows under Corinthians 2014 10th Circuit case, the 10th Circuit says, even if self-serving one affidavit can offset the affidavit on the plaintiff, can offset a mountain of affidavits from the other side if it creates an inference that she wasn't being treated for.

[00:13:16] Speaker 02:
Counsel, can I ask you a question about your retaliation claim?

[00:13:19] Speaker 02:
I wanted to ask you a question about your retaliation.

[00:13:22] Speaker 00:
Yes.

[00:13:22] Speaker 02:
So why shouldn't we affirm the grant of summary judgment on that claim for the same reason that the district court gave, which is that you didn't provide any argument, you didn't marshal any arguments on pretext as to retaliation?

[00:13:38] Speaker 05:
Here's how I view that.

[00:13:39] Speaker 05:
All parties, including the district judge, acknowledge that both claims were covered by the same set of facts.

[00:13:46] Speaker 05:
There wasn't a set of facts dealing as to the discrimination claim, and there wasn't a separate set of facts.

[00:13:52] Speaker 05:
relating to the retaliation claim.

[00:13:55] Speaker 05:
The court specifically said there's only one set of facts in this case.

[00:13:59] Speaker 05:
Throughout my brief, I talked about pretext leading to termination.

[00:14:04] Speaker 05:
With my excellent 2020 hindsight, I should have dropped a footnote saying same arguments as to discrimination applies to retaliation.

[00:14:13] Speaker 05:
But I worded it broadly enough in my brief so that I didn't have to regurgitate the very same stuff to this court.

[00:14:21] Speaker 02:
So the factual basis you're contending is the same as the legal standard of the same?

[00:14:26] Speaker 05:
I'm sorry.

[00:14:27] Speaker 02:
Is the legal standard the same when we're evaluating retaliation and looking at pre-tax?

[00:14:31] Speaker 05:
I think so.

[00:14:34] Speaker 05:
So that being said, Your Honor, this is one of those cases where

[00:14:45] Speaker 05:
You've just got to let the jury decide this thing because they're so, I mean, I presented these witnesses that were just so strongly in her favor and the judge, I don't understand.

[00:14:56] Speaker 05:
I mean, they filed a motion to strike virtually every paragraph in all affidavits.

[00:15:01] Speaker 05:
And that's, you know, there's, I cited so much law that you can't do that.

[00:15:06] Speaker 05:
It's disfavored.

[00:15:08] Speaker 05:
And when you look at it,

[00:15:13] Speaker 05:
The problem is, when the judge says, I'm gonna disregard this, I'm gonna disregard that, I mean, it took the whole case away from us.

[00:15:20] Speaker 05:
And there was no, these were personal observations by someone with experience and someone that was right there.

[00:15:28] Speaker 05:
Thank you very much.

[00:15:34] Speaker 04:
Good morning.

[00:15:35] Speaker 04:
Good morning.

[00:15:35] Speaker 04:
I'm here to face the court.

[00:15:36] Speaker 04:
My name is Terrell Mock, and I'm here representing USD 475.

[00:15:44] Speaker 04:
The affidavit, the portions of those affidavits that were stricken from the record by Judge Melbourne were done so because they failed to meet the rules of admissible evidence.

[00:15:57] Speaker 04:
Excuse me.

[00:15:59] Speaker 04:
And he was very,

[00:16:02] Speaker 04:
I think judicious in that he didn't strike whole paragraphs, he went through every single one of them and only struck out those sentences that frankly lacked personal knowledge, the vast majority of them.

[00:16:15] Speaker 01:
Let's talk about the Toomey affidavit.

[00:16:17] Speaker 01:
First question is, if

[00:16:19] Speaker 01:
If we were to disagree with the exclusion that the district court erred in disregarding some of the Toomey affidavit, what would be the appropriate remedy in that situation?

[00:16:33] Speaker 01:
Should we conduct a de novo review of summary judgment, putting those back in, or should we remand to the district court to do a summary judgment with the proper universe of information?

[00:16:45] Speaker 04:
I think you conduct the de novo review.

[00:16:47] Speaker 04:
with that in consideration, but as this court knows, those evidentiary decisions you are to review for an abuse of discretion.

[00:17:01] Speaker 01:
All right, yes, that's right.

[00:17:03] Speaker 01:
But going to now, the question as it relates to the Toomey Appendate, why could not Ms.

[00:17:09] Speaker 01:
Toomey, having been in the district, having had experience as an HR professional in that district, say,

[00:17:17] Speaker 01:
This is the way that they do it.

[00:17:20] Speaker 01:
This is the way they've historically done it.

[00:17:22] Speaker 01:
This is the way that they did it when I was there one year before this event occurred.

[00:17:27] Speaker 01:
And if they didn't do it that way, then they were deviating from the practice that existed.

[00:17:34] Speaker 01:
Why is that not appropriate and missable testimony?

[00:17:38] Speaker 04:
Well, first of all, I would say they did do it that way.

[00:17:42] Speaker 04:
There's nothing in the record.

[00:17:45] Speaker 04:
That's not my question.

[00:17:47] Speaker 04:
What she's saying, and the reason I believe it's struck is because of the way it's written.

[00:17:53] Speaker 04:
If you look at paragraph 11, the portion that Judge Melgren struck was, it is my understanding that Dr. Eggleston and Dr. Gustafson are stating that they were not aware of the requirement of evaluations.

[00:18:10] Speaker 04:
I also understand they are now trying to say that no school administrators were being evaluated.

[00:18:17] Speaker 04:
This is not accurate.

[00:18:18] Speaker 04:
That's the part of that paragraph that was struck.

[00:18:22] Speaker 03:
Based on what information?

[00:18:23] Speaker 04:
It's not accurate that she, that her understanding isn't accurate?

[00:18:28] Speaker 04:
Right.

[00:18:28] Speaker 04:
She's being fed inaccurate information and then providing an opinion on inaccurate information.

[00:18:34] Speaker 04:
Nobody testified that administrators weren't evaluated.

[00:18:39] Speaker 04:
They testified they were evaluated one time a year.

[00:18:42] Speaker 04:
And I also think it's important for this court to understand that evaluation process is this key construct that's used by districts across the state of Kansas.

[00:18:53] Speaker 04:
And in the way that Junction City did it, it was really a year-long evaluation.

[00:18:59] Speaker 04:
I mean, it starts in the fall.

[00:19:02] Speaker 04:
It starts with a self-evaluation that then the evaluator takes and provides feedback upon.

[00:19:08] Speaker 04:
It goes through all these constructs.

[00:19:11] Speaker 04:
It's like 45 pages long.

[00:19:15] Speaker 04:
And so she was being evaluated that entire year.

[00:19:21] Speaker 04:
It was completed in April.

[00:19:25] Speaker 04:
But the evaluation was occurring.

[00:19:26] Speaker 01:
Well, again, if Ms.

[00:19:32] Speaker 01:
Toomey says, all right, I've been in this district for a long time, I've been an HR professional, they don't do it that way.

[00:19:41] Speaker 01:
That's not the way they did it when I was there.

[00:19:43] Speaker 01:
That's not my understanding of what the proper evaluation looks like.

[00:19:47] Speaker 01:
Why is that testimony inadmissible?

[00:19:53] Speaker 04:
What is that way?

[00:19:55] Speaker 01:
That way is what you just said, which is that it's a year long process and that's how evaluations take place and she says, well I was there and that's not how they take place.

[00:20:08] Speaker 04:
Well, if that's what the testimony was, which it's not, then it would be admissible, because it would be based upon her personal knowledge of what happened in 21 or in 2021, whatever last year she was there.

[00:20:19] Speaker 01:
Well, why isn't she saying that?

[00:20:20] Speaker 01:
There are a lot of conditional statements here in which she says that this is, let's say, talking about what the process was.

[00:20:30] Speaker 01:
I was not aware

[00:20:33] Speaker 01:
talking about what Kansas law requires.

[00:20:35] Speaker 01:
System was programmed with the cycle for each administrator, blah, blah, blah.

[00:20:40] Speaker 01:
Well, what's wrong with that?

[00:20:42] Speaker 04:
Well, again, I think what's wrong with it is it's based upon this information that she lacks personal knowledge of.

[00:20:50] Speaker 04:
If Ms.

[00:20:51] Speaker 04:
Tartt was not evaluated, which she was, it was a conscious decision on the part of the administration.

[00:20:58] Speaker 04:
Okay, so she's speaking to the mind of the administration.

[00:21:01] Speaker 04:
KSTE Keep maintains a record of

[00:21:06] Speaker 04:
I'm not sure what that said.

[00:21:06] Speaker 04:
That's right.

[00:21:07] Speaker 03:
Evaluations performed.

[00:21:08] Speaker 03:
And what's wrong with that particular statement?

[00:21:10] Speaker 03:
Doesn't she have personal knowledge of that?

[00:21:13] Speaker 04:
She could say that when I was there in 21, 22, they kept a record of this.

[00:21:18] Speaker 03:
Yeah.

[00:21:19] Speaker 03:
That's fine.

[00:21:19] Speaker 03:
And they are set on a cycle.

[00:21:21] Speaker 03:
And that they are set on a cycle.

[00:21:22] Speaker 03:
And the system sends reminders.

[00:21:24] Speaker 03:
And I did as well.

[00:21:26] Speaker 03:
That's all her knowledge.

[00:21:26] Speaker 01:
And that's all excluded.

[00:21:28] Speaker 04:
Those sentences are excluded.

[00:21:30] Speaker 04:
Because I think

[00:21:32] Speaker 04:
as I understand his opinion, is she's talking, she's saying this happened in the year she wasn't there.

[00:21:40] Speaker 01:
Well, that's not what she says.

[00:21:42] Speaker 01:
She says they made, she's talked, well, I mean, she says

[00:21:46] Speaker 04:
Well, she doesn't know what was happening the year she was there.

[00:21:48] Speaker 01:
No, she doesn't, but that's not the qualifier.

[00:21:51] Speaker 01:
She says that they maintain records.

[00:21:54] Speaker 01:
Yes, that's present tense, and of course she's not there in 2022, but I didn't understand that.

[00:22:00] Speaker 01:
Ari, is that your view that that was the district court's rationale?

[00:22:04] Speaker 03:
That's my understanding.

[00:22:06] Speaker 03:
Well, she was there in 2021 and she says the system sends reminders and I did as well.

[00:22:11] Speaker 03:
And I would send out email reminders to the administrators, including Dr. Eggleston and Dr. Gustafson, her supervisors, advising them of their evaluations due out.

[00:22:20] Speaker 03:
So I think she is saying I was there and this is what I did.

[00:22:24] Speaker 03:
And that's apparently, although it's not clear the basis for her statement, that if she wasn't evaluated in 2021,

[00:22:32] Speaker 03:
It was a conscious decision on the part of the administration.

[00:22:35] Speaker 04:
Again, I think her speaking to the decision of the administrator is a stretch.

[00:22:41] Speaker 03:
Well, that may be, but she does have some specific information.

[00:22:45] Speaker 03:
Can we talk about the evidence of racial animus that

[00:22:50] Speaker 03:
is fairly significant.

[00:22:52] Speaker 03:
For instance, is it Gustafson?

[00:22:55] Speaker 03:
Gustafson.

[00:22:55] Speaker 03:
Gustafson.

[00:22:57] Speaker 03:
She actually suggested, and I think this was in an email maybe, was it through Discovery?

[00:23:01] Speaker 03:
I don't know, that School Board Member Johnson's motives was that he was coming after black administrators.

[00:23:09] Speaker 04:
No, that's not what she said.

[00:23:11] Speaker 03:
All right, what did she say?

[00:23:12] Speaker 03:
She said.

[00:23:13] Speaker 03:
And where was this in an email?

[00:23:14] Speaker 03:
This was in a text message exchange.

[00:23:16] Speaker 03:
Right, a text message.

[00:23:17] Speaker 04:
Between Dr. Fefteson and her, at the time, very, very good friend.

[00:23:22] Speaker 04:
And in that text message.

[00:23:24] Speaker 04:
Was that produced through discovery?

[00:23:25] Speaker 04:
It was produced through discovery.

[00:23:27] Speaker 04:
She was subpoenaed.

[00:23:28] Speaker 04:
These text messages were subpoenaed.

[00:23:30] Speaker 04:
And she said.

[00:23:31] Speaker 04:
And in the text exchange, there was talk about Mr. Johnson being in the high school

[00:23:40] Speaker 04:
more often than not, or more than normal.

[00:23:44] Speaker 04:
Context being this was a brand new high school, they just built it.

[00:23:47] Speaker 04:
hugely expensive brand new space.

[00:23:50] Speaker 04:
And so he was going over there a lot.

[00:23:53] Speaker 04:
And so her friend Margie says, makes that statement.

[00:23:58] Speaker 04:
And Deb Gustafson says, Ron Johnson is out to get Dr. E and Marlee Todd.

[00:24:07] Speaker 04:
The two black administrators.

[00:24:08] Speaker 04:
But she doesn't say,

[00:24:11] Speaker 03:
She does say, well, we know they are.

[00:24:13] Speaker 03:
Well, yes.

[00:24:14] Speaker 03:
She knows they are.

[00:24:15] Speaker 03:
Yes.

[00:24:15] Speaker 03:
And she says he's out to get them.

[00:24:18] Speaker 03:
She does.

[00:24:18] Speaker 03:
Dr. Johnson.

[00:24:19] Speaker 03:
Yeah.

[00:24:19] Speaker 03:
She does.

[00:24:19] Speaker 03:
But if you look at that statement alone, there's not a racial connotation.

[00:24:24] Speaker 03:
Well, we don't look at it alone.

[00:24:26] Speaker 03:
We look at it in combination with other factors.

[00:24:29] Speaker 03:
What about the same person, Dr. Gustafson, making critical comments about the plaintiff herself and about how she stares people down and doesn't avert her gaze.

[00:24:44] Speaker 03:
And that's what prompted the retaliation claim.

[00:24:48] Speaker 04:
That's what prompted the protected activity.

[00:24:50] Speaker 04:
Right.

[00:24:52] Speaker 04:
Right.

[00:24:53] Speaker 04:
So, you know, they had been getting a lot of complaints, right, from administrators, from teachers, from different staff.

[00:25:01] Speaker 04:
about Ms.

[00:25:02] Speaker 04:
Tartt.

[00:25:03] Speaker 04:
And Dr. Gustafson was attempting to meet with her to relay to her some of these complaints so that she could improve, so that she could understand what the complaints were against her.

[00:25:16] Speaker 04:
And it was that she was basically staring people down and it was making them really uncomfortable.

[00:25:22] Speaker 04:
If she was in a confrontational space or

[00:25:25] Speaker 04:
You know, if they would say something that she didn't like, instead of responding, she would just sit there and stare at them.

[00:25:32] Speaker 04:
And I think what Dr. Gustafson ultimately testified to and what she told Dr. Eggleston and what she told Ms.

[00:25:39] Speaker 04:
Tartt in that follow-up meeting was, I didn't mean anything by that other than I'm trying to help you understand how people are perceiving you.

[00:25:48] Speaker 04:
in a negative way and what's making them uncomfortable so that those things change.

[00:25:54] Speaker 03:
Did she suggest that she should be averting her gray gaze?

[00:25:58] Speaker 03:
No, not at all.

[00:25:59] Speaker 03:
That was the plaintiff's implication?

[00:26:01] Speaker 03:
Yes, not at all.

[00:26:02] Speaker 03:
And the plaintiff explained to her how that made her feel.

[00:26:07] Speaker 03:
She did.

[00:26:08] Speaker 03:
As a person of color.

[00:26:09] Speaker 03:
She did.

[00:26:09] Speaker 03:
And that might have been interpreted by her.

[00:26:11] Speaker 03:
Yes.

[00:26:12] Speaker 04:
And they had this whole conversation about it.

[00:26:14] Speaker 04:
And that conversation's recorded.

[00:26:16] Speaker 04:
It's in the record.

[00:26:18] Speaker 04:
You know, they had a conversation about this and, you know, that wasn't.

[00:26:22] Speaker 03:
Well, if we draw some inferences from this along with the, I think it's the add value comment.

[00:26:29] Speaker 03:
Was that Eagleston?

[00:26:31] Speaker 03:
There was a comment about it.

[00:26:32] Speaker 03:
Or she doesn't add any value.

[00:26:35] Speaker 03:
I believe that's from an affidavit as well.

[00:26:37] Speaker 04:
I'm not quite sure that's.

[00:26:38] Speaker 03:
And there's Sally who said she's not our kind.

[00:26:41] Speaker 03:
You need to come and ask me questions.

[00:26:44] Speaker 03:
That's Salih.

[00:26:45] Speaker 03:
Salih?

[00:26:45] Speaker 03:
Uh-huh.

[00:26:46] Speaker 03:
There's a number of these comments.

[00:26:49] Speaker 04:
There's a, if we're talking, are we talking about the discrimination claim or are we talking about the retaliation?

[00:26:55] Speaker 04:
Well, let's talk about.

[00:26:56] Speaker 04:
Because I do think there's differences.

[00:26:57] Speaker 04:
All right, well, let's talk about the discrimination claim.

[00:26:59] Speaker 04:
Okay, so if we're talking about the discrimination claim, what that requires, what pretext requires is ultimately that they show that the reasons that were put forth to the Board of Education by Dr. Eggleston and by the Board of Education for their reasons for terminating her,

[00:27:15] Speaker 04:
were unworthy of belief, you know, the maxims, right, of law in this circuit, implausible, inconsistent.

[00:27:25] Speaker 01:
To that point, what Judge Moritz, what I hear her saying is that there were some, from this Dr. Gustafson, there were at least two instances in which there were explicit racial comments directed towards

[00:27:40] Speaker 01:
board the board member mister johnson i mean you know that supposedly he was a racist i mean that was i guess miss uh... forget henry or somehow her name is pronounced that's how she responded when they said they're going after them and she said races that's what margie panera said that's not what dr cups well in another instance she did says supposedly there's an exchange yet with mister where she said don't worry about it he's a racist right

[00:28:05] Speaker 04:
That's the testimony in the light most favorable to the planet.

[00:28:07] Speaker 04:
I think we have to take that.

[00:28:08] Speaker 01:
That is the testimony.

[00:28:09] Speaker 01:
Well, why isn't that testimony relevant to the question of whether the fix was in, essentially, as it relates to the discrimination claim that all of these things were made up?

[00:28:20] Speaker 04:
Well, you know, you have to think, too.

[00:28:22] Speaker 04:
Who made the recommendation that Ms.

[00:28:25] Speaker 04:
Tard be terminated?

[00:28:27] Speaker 04:
Dr. Eggleston did.

[00:28:29] Speaker 01:
Okay.

[00:28:30] Speaker 04:
Okay.

[00:28:31] Speaker 04:
Dr. Eggleston is the same one who recruited her to come, you know, 2475.

[00:28:36] Speaker 04:
There's absolutely no racist comments attributed to Dr. Eggleston.

[00:28:40] Speaker 02:
Who was the ultimate decision maker for her termination?

[00:28:42] Speaker 02:
The Board of Education.

[00:28:43] Speaker 01:
That's right.

[00:28:44] Speaker 01:
And so that entity and whether they were animated by racial discrimination is what is at play here.

[00:28:53] Speaker 04:
Okay, and I agree with that.

[00:28:55] Speaker 04:
And there's a lot of case law out there that suggests one member's vote or even one member's racial animus, if we assume that to be the case here, is insufficient.

[00:29:05] Speaker 01:
Well, what about the fact that there was that exchange about two people who were going to get on the board, and you ended up with at least two people who were alleged to have some sort of animus, right?

[00:29:17] Speaker 04:
I don't believe that's in the record, Your Honor.

[00:29:19] Speaker 01:
Well, I'll find it.

[00:29:20] Speaker 01:
Thank you.

[00:29:21] Speaker 04:
If we look at, I would like to direct the court's attention to the Jaramillo case versus Adams County Schools, the 2012 case.

[00:29:31] Speaker 04:
And it has facts that are pretty similar to these.

[00:29:36] Speaker 04:
She was a Hispanic principal.

[00:29:39] Speaker 04:
There was testimony from another board member

[00:29:48] Speaker 04:
was racist and in that the court concluded that was insufficient.

[00:29:55] Speaker 04:
He testified that, I mean one board member testifying against another board member.

[00:30:02] Speaker 04:
you know, that whether he thought racism was involved in the termination decision, he answered yes, and explained he felt the termination was a product of institutional racism in the district.

[00:30:15] Speaker 04:
All of those things, and the tenth survey in that case concluded all of that evidence, which I believe is more significant than that here, was mere conjecture that an employer's explanation is pretext for intentional discrimination

[00:30:31] Speaker 04:
is an insufficient basis for denial of summary judgment.

[00:30:37] Speaker 04:
So I think that, and he said nothing in that board member's testimony other than vague references to institutional racism or past experience suggests he could be on point.

[00:30:48] Speaker 01:
Let me clarify one point before you sit down.

[00:30:52] Speaker 01:
In the appellant's briefing, there's a reference to the position being advertised as vacant in March of 2022.

[00:31:01] Speaker 01:
I didn't see any rebuttal to that point in your briefing.

[00:31:07] Speaker 01:
Do you agree that was true?

[00:31:08] Speaker 01:
And if that's true, that's position that advertised as vacant in March 2022, not fired until May, right?

[00:31:17] Speaker 04:
Right.

[00:31:18] Speaker 04:
They had removed her from the high school after spring break because the fever pitch was such that work wasn't getting done.

[00:31:26] Speaker 04:
Nobody was working for her.

[00:31:27] Speaker 04:
Things were stalled out.

[00:31:29] Speaker 04:
So they pulled her to the administration building.

[00:31:31] Speaker 04:
And I think Dr. Eggleston knew at that time

[00:31:34] Speaker 04:
you know, having her be in that position was not effective.

[00:31:38] Speaker 01:
And so that was in effect a removal from the position, in effect a termination from the position, although they were not authorized to do that at the time.

[00:31:49] Speaker 04:
Well, they removed her from the building to save the building.

[00:31:53] Speaker 04:
And then they pulled her to the district where they gave her work there.

[00:32:01] Speaker 04:
She continued to work.

[00:32:03] Speaker 04:
And I think Dr. Eggleston's hope was, we all know this wasn't the position she was hired for.

[00:32:08] Speaker 02:
What is your understanding of what the plaintiff's understanding is of the adverse action here?

[00:32:16] Speaker 02:
Well, she was ultimately non-renewed.

[00:32:18] Speaker 02:
So that's it, right?

[00:32:19] Speaker 02:
And then for the retaliation claim, what is the protected activity?

[00:32:23] Speaker 04:
The complaint about her meeting with Dr. Gustafson.

[00:32:25] Speaker 02:
So were there other adverse actions in play here, as Chief Judge Holmes is referencing, the way in which her termination ultimately unfolded?

[00:32:37] Speaker 04:
Yeah, I think that's their argument.

[00:32:40] Speaker 04:
She was put on an administrative improvement plan.

[00:32:42] Speaker 04:
But I would also point out to the court, if you look at that administrative improvement plan, there's five major things identified in that plan that she has to work on.

[00:32:52] Speaker 04:
And those five things were identified before she engaged in any protected conduct.

[00:32:57] Speaker 04:
And there's case law out there suggesting, if the ship's already moving, just because you engage in protected conduct doesn't mean you get to stop it.

[00:33:06] Speaker 03:
What should we think about a board that has a member who

[00:33:11] Speaker 03:
at least a couple people understand is racist and is trying to get rid of the two board members who happen to be, or not board members, but administrators who happen to be black.

[00:33:24] Speaker 03:
And this person, Dr. Gustafson, I can't say her name.

[00:33:30] Speaker 03:
That's okay, Gustafson.

[00:33:31] Speaker 03:
Gustafson allows that board, knowing one of the members

[00:33:39] Speaker 03:
might be out to get her, and might be racist, and could be talking to the other members, we don't know.

[00:33:46] Speaker 03:
What about, but we don't know.

[00:33:48] Speaker 03:
We have a decision maker who knows this about a board member.

[00:33:54] Speaker 03:
She's not a decision maker.

[00:33:56] Speaker 03:
Well, she's the supervisor of this individual who eventually is part of the termination, I presume.

[00:34:04] Speaker 03:
I mean, there's a recommendation

[00:34:07] Speaker 03:
that comes and she talks to her about her problems and then she lets this board, who she knows may be compromised, make this decision without saying anything.

[00:34:19] Speaker 04:
Right, and I'm understanding that we're assuming, that's just some told tart that Ron Johnson was a racist.

[00:34:29] Speaker 04:
But I don't think the court can ignore the fact that she denied the statement and testified under oath she has no reason to believe he's racist.

[00:34:37] Speaker 03:
Michelle, we also have her text back and forth with her friend.

[00:34:41] Speaker 03:
But she didn't call him a racist in those times.

[00:34:42] Speaker 03:
She said he was out to get these two individuals.

[00:34:45] Speaker 03:
She did.

[00:34:46] Speaker 03:
And the other person, Margie, calls him a racist.

[00:34:49] Speaker 03:
And she doesn't say, oh, no, no, no.

[00:34:51] Speaker 03:
That's not it.

[00:34:52] Speaker 03:
No.

[00:34:53] Speaker 03:
No.

[00:34:53] Speaker 03:
She doesn't.

[00:34:54] Speaker 03:
And then she says, all right, Borg, go ahead, and you contemplate her terminating.

[00:34:59] Speaker 04:
I would direct the court's attention back to the line of cases that suggest, even if we consider that to be true, even if we agree with the assumption and belief that the president was racist, is one person on a seven-member vote, you have affidavits and evidence from all of the rest of them,

[00:35:19] Speaker 04:
indicating why they made their votes and their honest belief in those.

[00:35:25] Speaker 02:
Was Johnson president when she was there?

[00:35:27] Speaker 04:
Yes.

[00:35:29] Speaker 01:
I guess the, you say one person, and I guess what I'm focusing on is Gustafson, Texas Margie, in November 2021, and she says, make no mistake, Hudson and Hatcher, and in parenthetical, Johnson and Hayden.

[00:35:49] Speaker 01:
are after Dr. E and Mr. Jackson.

[00:35:53] Speaker 01:
And that is the text from which the response came racist.

[00:35:59] Speaker 01:
So the point is, we're not just talking about one person, are we?

[00:36:07] Speaker 04:
Again, I don't believe that's her saying she thinks those folks are racist.

[00:36:10] Speaker 04:
That's not what, well... I don't think you can infer that from that evidence.

[00:36:17] Speaker 01:
Okay.

[00:36:19] Speaker 01:
Thank you.

[00:36:20] Speaker 04:
Thank you.

[00:36:22] Speaker 01:
If you want it, you have more than that.

[00:36:26] Speaker 01:
You can have a minute.

[00:36:27] Speaker 01:
Go ahead, please.

[00:36:28] Speaker 05:
You know, it's critical here that we look at context.

[00:36:32] Speaker 05:
When I took Gustafson's deposition, I said, my client says that you said that he was a racist.

[00:36:40] Speaker 05:
Mr. Johnson was a racist.

[00:36:42] Speaker 05:
And I said, did you say that?

[00:36:44] Speaker 05:
And she said, I don't recall.

[00:36:46] Speaker 05:
And I said, now you know the difference between denying that you said something versus not recalling it.

[00:36:51] Speaker 05:
And I said, let me ask you again.

[00:36:52] Speaker 05:
Do you deny calling him a racist?

[00:36:56] Speaker 05:
I don't recall."

[00:36:58] Speaker 05:
So now she has changed her testimony.

[00:37:00] Speaker 01:
Didn't she have an affidavit where she denied it?

[00:37:02] Speaker 05:
Yeah, afterwards.

[00:37:04] Speaker 05:
But after I took her deposition, she said, I don't recall.

[00:37:06] Speaker 05:
And I made certain to get it on the record that she knew the difference between not recalling versus denying.

[00:37:13] Speaker 05:
If you look at the time frame on this, they removed her from the building.

[00:37:18] Speaker 05:
They took away 75% of her responsibilities.

[00:37:22] Speaker 05:
So that actually, in effect, was adverse action right there.

[00:37:26] Speaker 05:
And they were advertising her position seven weeks before they terminated her.

[00:37:36] Speaker 01:
Thank you, counsel.

[00:37:37] Speaker 01:
Case is submitted.

[00:37:38] Speaker 01:
Thank you for your fine arguments.