[00:00:00] Speaker 04:
The third case this morning is 24-3043, Watkins v. Ganesh, counsel for appellant.

[00:00:14] Speaker 04:
You can make your appearance and when you're ready, proceed.

[00:00:32] Speaker 02:
Good morning.

[00:00:34] Speaker 02:
My name is Aaron McKee.

[00:00:36] Speaker 02:
I'm representing the appellant.

[00:00:38] Speaker 02:
Ms.

[00:00:38] Speaker 02:
Watkins, may it please the court?

[00:00:40] Speaker 04:
Could we pause for a second?

[00:00:44] Speaker 04:
He informed me of the eventually being put first.

[00:00:48] Speaker 04:
And let me be clear.

[00:00:49] Speaker 04:
You do whatever you want.

[00:00:51] Speaker 04:
It's not going to impair our ability to hear your argument.

[00:00:53] Speaker 04:
So whatever you're comfortable doing, Mr. McKee.

[00:00:57] Speaker 02:
I think I'll be OK.

[00:01:00] Speaker ?:
OK.

[00:01:00] Speaker 02:
If something happens, I'll tell you, but I think.

[00:01:02] Speaker 04:
OK, that's fine.

[00:01:04] Speaker 04:
Thank you.

[00:01:04] Speaker 04:
Go ahead.

[00:01:07] Speaker 02:
May I please escort?

[00:01:13] Speaker 02:
This case arises out of some extraordinary circumstances, particularly during the pandemic, when there was a lot of confusion.

[00:01:21] Speaker 02:
There was a 1981 claim that was filed.

[00:01:24] Speaker 02:
It went on for 14, 16 months, perhaps.

[00:01:31] Speaker 02:
At the conclusion of that, Judge Robinson entered an order, and in that order, specifically preserved any Title VII claims that plaintiff had and said that she could file them after the KHRC EEOC were done with their proceedings.

[00:01:49] Speaker 04:
And I'm glad that you're going to the heart of the matter as I see it, Mr. McKee.

[00:01:53] Speaker 04:
What authority do you have to indicate that Judge Robinson

[00:01:57] Speaker 04:
or any district court judge was situated to preserve your claims.

[00:02:02] Speaker 04:
I mean, it was a footnote and it was what, two sentences, three sentences at most, did not talk about claim preclusion at all.

[00:02:10] Speaker 04:
What authority would there be to indicate that Judge Robinson could preserve in the face of Wilkes your Title VII claim?

[00:02:22] Speaker 02:
I don't have a specific case on that.

[00:02:27] Speaker 02:
But in the face of Wilkes, I think it's an issue.

[00:02:32] Speaker 02:
Wilkes looked at alternatives of what could have or should have been done.

[00:02:41] Speaker 02:
Well, advising the court that there was a Title VII case pending, the judge decided to enter an order, and in that,

[00:02:55] Speaker 02:
I believe reserved her Title VII claims.

[00:03:01] Speaker 01:
Are you talking about in Wilkes or are you talking about in this case?

[00:03:04] Speaker 02:
Sorry, in this case.

[00:03:05] Speaker 04:
And well, one, Judge Robinson in footnote 23 didn't cite Wilkes.

[00:03:12] Speaker 04:
And among the options that were provided in Wilkes was not notifying the district court that we have a pending Title VII claim.

[00:03:22] Speaker 04:
It was taking proactive efforts

[00:03:25] Speaker 04:
to put that Title VII claim in your 1981 lawsuit, which was not done, right?

[00:03:34] Speaker 02:
Right.

[00:03:35] Speaker 04:
Okay.

[00:03:35] Speaker 04:
Well, if there is no authority as to support the notion that Judge Robinson could preserve this claim, as I understand, there were two things that I saw in your supplemental briefing.

[00:03:47] Speaker 04:
One, the concern about the timing, which you started out with the COVID-19, you know, it was a mess, admittedly.

[00:03:54] Speaker 04:
Okay, that.

[00:03:55] Speaker 04:
Two, was Judge Robinson preserving your claim?

[00:04:00] Speaker 04:
If there's no authority for Judge Robinson preserving the claim, and I have a hard time finding authority to support the notion that COVID-19 makes a difference in this context, then what basis is it for us to go forward?

[00:04:15] Speaker 04:
Because the reality is, why would claim preclusion then not kick in?

[00:04:20] Speaker 04:
Because the two options that Wilkes gave,

[00:04:23] Speaker 04:
you did not avail yourself of.

[00:04:25] Speaker 04:
And I'm not being critical.

[00:04:27] Speaker 04:
I'm just saying it didn't happen.

[00:04:29] Speaker 04:
So that being the case, what basis is there to go forward?

[00:04:34] Speaker 02:
Well, again, I believe that Judge Robin's daughter preserved it, whether she was right or wrong.

[00:04:49] Speaker 02:
It seems to me that that's something that would have needed to be taken up in the 1981 case, not attacking it now in a subsequent case.

[00:05:02] Speaker 01:
Well, that's what claim preclusion is.

[00:05:04] Speaker 01:
I mean, it's always a subsequent case that gets barred by the prior litigate final order.

[00:05:15] Speaker 01:
And so in the 1981 case, there was a final order.

[00:05:21] Speaker 01:
correct?

[00:05:24] Speaker 02:
Yes, except, again, I believe Judge Robinson specifically preserved those claims.

[00:05:31] Speaker 01:
Well, it may be, I mean, taking it most generously to you, it may be that Judge Robinson encouraged you in a way that was not accurate under the law, if you read the footnote extremely broadly.

[00:05:50] Speaker 01:
But ultimately, that's not your lawyer.

[00:05:55] Speaker 01:
And under Wilkes, it seems pretty clear that you're barred, at least on your Burger King claims, you're barred by the 1981 action.

[00:06:12] Speaker 04:
And going one step further, I think that in your brief, and I heard a little of it in your argument today,

[00:06:19] Speaker 04:
was the suggestion that the onus should have been on APA Lee in the 1981 case if they disagreed with Judge Robinson's decision to object.

[00:06:31] Speaker 04:
In other words, to take some action regarding that.

[00:06:34] Speaker 04:
Well, I mean, one thing about that is that's predicated on the notion that we should actually view that as an order that would have been something that they had to object to

[00:06:45] Speaker 04:
and particularly since it doesn't appear to be framed as such.

[00:06:51] Speaker 04:
But that is your position, right?

[00:06:53] Speaker 04:
That at some level, they should have done something about it.

[00:06:58] Speaker 04:
If this was a preservation of your claim, they should have taken some action in the 1981 action to respond to it.

[00:07:10] Speaker 02:
Yes, Judge.

[00:07:13] Speaker 01:
I'm going to focus you for a minute on your claims related to the retaliation, what I call the church's claim as opposed to the Burger King claim.

[00:07:25] Speaker 01:
That one's untimely, isn't it?

[00:07:30] Speaker 02:
Well, the church's claim that was filed in 2019 and issued a letter in 2021

[00:07:42] Speaker 02:
we chose not to make or file a lawsuit on that because there was already the 2016 case that was involving when Ms.

[00:07:56] Speaker 02:
Watkins worked at Burger King.

[00:07:59] Speaker 01:
But the 2016 charge did not involve the retaliation at churches, correct?

[00:08:08] Speaker 02:
That's right.

[00:08:09] Speaker 01:
And when you got the right to sue letter

[00:08:12] Speaker 01:
on that 2019 charge in 2021, you had 90 days to file a lawsuit, but you chose not to.

[00:08:26] Speaker 02:
Yes, because we chose not to file a lawsuit involving the church's case.

[00:08:34] Speaker 01:
And at that time, it became untimely.

[00:08:37] Speaker 02:
to file against churches.

[00:08:40] Speaker 02:
About the churches issues, yes, that would have been untimely.

[00:08:44] Speaker 04:
And trying to make, well, understand what's going on here, let me help me with this.

[00:08:52] Speaker 04:
At least what I understand to be your position is yes, they could not file, we did not file against churches, we chose not to based upon the 2019 charge.

[00:09:04] Speaker 04:
But that did not stop us

[00:09:07] Speaker 04:
from distinctly filing based upon the Burger King matters that were the subject of the 2016 charge when the right to sue letter came in, because they involve distinct conduct.

[00:09:21] Speaker 04:
Is that your position?

[00:09:25] Speaker 02:
I'm not sure I understand this right, but the 2019 charge against churches

[00:09:33] Speaker 02:
involved actions that happened at a different employer and it happened three years later.

[00:09:38] Speaker 02:
Had we filed a lawsuit based upon that and included the allegations from the 2015-2016 charge, those would have been found to be untimely in front of the court.

[00:09:52] Speaker 04:
But it's your contention that when the notice of the right to sue letter came in, that triggered your right to raise those claims

[00:10:01] Speaker 04:
related to that 2014-2015 period?

[00:10:04] Speaker 02:
No, it was my understanding that we were required to wait for the charge specifically associated with the 2016 charge.

[00:10:19] Speaker 04:
Yes, and that related to the underlying conduct that took place in 2014-2015, right?

[00:10:25] Speaker 04:
The Burger King stuff.

[00:10:27] Speaker 02:
And that right to sue letter was issued in 2022 and we filed the lawsuit within 90 days of receiving that right to sue letter.

[00:10:37] Speaker 04:
And it is the Burger King stuff that you seek to pursue, that you sought to pursue in district court that is the subject of this case, right?

[00:10:48] Speaker 02:
Yes, Your Honor.

[00:10:49] Speaker 04:
Okay.

[00:10:50] Speaker 04:
And so the premise would be that

[00:10:54] Speaker 04:
Part of this, I think, turns on the fact that you included allegations of 2014-2015 in the 2019 charge.

[00:11:03] Speaker 04:
In other words, you included some of the allegations that were in the 2016 charge in the 2019 charge, but it's my understanding that you, I'm just trying to understand the theory here.

[00:11:14] Speaker 04:
The premise would be that that was just background, that you weren't actually trying to act on that.

[00:11:21] Speaker 02:
That's right.

[00:11:23] Speaker 02:
And we specifically say in that charge, you know, we add to that charge, we put the background factual information, and then we essentially say we are bringing allegations of, you know, discrimination or retaliation for that time period.

[00:11:45] Speaker 02:
And so I can't remember exactly the date we filed it.

[00:11:49] Speaker 02:
But the activity occurred in December of 2018.

[00:11:55] Speaker 01:
Of the retaliation.

[00:11:57] Speaker 01:
The church.

[00:11:57] Speaker 02:
Yes, yes.

[00:11:59] Speaker 01:
But with respect to the Burger King events that were in 2014, even though you included them in the 2019 charge, by then they were untimely because

[00:12:17] Speaker 01:
you had to file at the front end, you had a deadline of 180 days to file and that had passed.

[00:12:25] Speaker 01:
So they could only be background because they were untimely as the basis for a charge.

[00:12:31] Speaker 02:
That's exactly right.

[00:12:34] Speaker 04:
Let me, wait a minute, let me be clear.

[00:12:36] Speaker 04:
It's my understanding that as it relates to the 2014, 2015 charges, they were the subject of the 2016 charge that you got the right to sue letter on.

[00:12:47] Speaker 04:
So why would they be untimely?

[00:12:50] Speaker 02:
In 2022, what I'm saying is that the 2019 charge that involved Church's chicken, a subsequent employer, we included 2014, 2015 and attached

[00:13:03] Speaker 02:
the original charge because we were alleging retaliation against that.

[00:13:10] Speaker 02:
We were telling the story of here's why we believe she was retaliated against.

[00:13:15] Speaker 02:
And to be timely within the EEOC, it has to be activity that occurred

[00:13:22] Speaker 02:
We can only go back 300 days.

[00:13:24] Speaker 04:
So it couldn't have been timely as it relates to 2019, but for purposes of the district court's order, what I understood you to be saying is that because you got the right to sue letter as it relates to the 2016 charge, they are timely.

[00:13:44] Speaker 04:
You got a right to sue letter on the 2016 charge and you filed in 90 days.

[00:13:49] Speaker 02:
Well, that would have been time.

[00:13:51] Speaker 04:
That's what I'm trying to understand.

[00:13:52] Speaker 02:
And I guess the confusion is, Judge Brattle actually, she dismissed, based upon the right to sue, saying that we should have filed on the 2021 right to sue letter, which actually was in relation to the 2019 charge.

[00:14:11] Speaker 02:
So we still had the 16 charge, and those two

[00:14:20] Speaker 02:
Those two, you know, it was alleged phone call.

[00:14:24] Speaker 02:
So the EEOC was able to, you know, my assumption is dispose of that real quickly.

[00:14:31] Speaker 02:
Did somebody make a phone call and did that happen?

[00:14:35] Speaker 02:
But the 2016 charge about the 2014, 2015, it remained to be on file.

[00:14:42] Speaker 02:
Okay.

[00:14:45] Speaker 02:
And then it went, because it was a cause finding, it also went into conciliation.

[00:14:51] Speaker 02:
And, you know, I think the conciliation, you know, also it does matter because, you know, the procedure seems to change at least a little bit whether there's no cause or there is cause because when there's cause you get into conciliation and I believe, you know, I believe, well, it gets into conciliation.

[00:15:14] Speaker 04:
So it's your premise that in the background

[00:15:17] Speaker 04:
was always this 2016 charge that related to the 2014-2015 conduct.

[00:15:23] Speaker 04:
And then when the EEOC finally issued the notice of right to sue, that triggered your ability to act.

[00:15:30] Speaker 02:
Provided we're talking about the 2022 right to sue, yes, Your Honor.

[00:15:34] Speaker 04:
That's the lawsuit.

[00:15:35] Speaker 04:
That's what we're talking about.

[00:15:36] Speaker 02:
Right.

[00:15:37] Speaker 04:
Okay.

[00:15:37] Speaker 04:
Thank you, Counsel.

[00:15:39] Speaker 02:
Okay.

[00:15:39] Speaker 02:
It looks like I'm done.

[00:15:41] Speaker 04:
Thank you, Counsel.

[00:15:42] Speaker 02:
Thank you.

[00:16:01] Speaker 03:
Your Honor, may I please the court?

[00:16:03] Speaker 03:
I'm Charles Lee.

[00:16:04] Speaker 03:
We represent, my firm represents Janesh, which is the appellee in this case.

[00:16:10] Speaker 03:
As you can tell from having looked at the briefing in this case, there is an element of convolution in the sense of when things were filed, why they were filed, why things were not filed.

[00:16:25] Speaker 03:
I want to address at the outset the question

[00:16:31] Speaker 03:
of the distinction between the 2016 and 2019 charges that were filed with the EEOC, it is important to recall that the 2019 charge encompassed verbatim everything that was in the 2016 charge.

[00:16:49] Speaker 04:
Well, did it?

[00:16:50] Speaker 04:
It included that information as the appellant put it for it as background.

[00:16:57] Speaker 04:
So the 2019 charge, at its bottom, related to a retaliation involving Church's chicken, when she was working at Church's chicken.

[00:17:07] Speaker 04:
And in order for you to understand what they were retaliating about, they included the allegations through 2014, 2015.

[00:17:16] Speaker 04:
That didn't mean that they were actionable allegations.

[00:17:19] Speaker 04:
It meant that they provided background for what they were

[00:17:22] Speaker 04:
at that moment in 2019, charged, seeking relief from the EEOC.

[00:17:27] Speaker 04:
I don't understand why that, what's wrong with that?

[00:17:31] Speaker 03:
Well, I believe the EEOC treated the 2019 charge as a separate charge.

[00:17:37] Speaker 03:
It was assigned a different number as the court is aware.

[00:17:40] Speaker 04:
Well, it would have been a separate charge as it relates to the retaliation that took place when she was at Church's Chicken, but there's this 2016 charge out here.

[00:17:49] Speaker 04:
which includes 2014-2015 conduct when she's at Burger King, and why isn't that still viable up until the time that the EEOC acted to issue its notice of right to sue?

[00:18:02] Speaker 03:
Well, because from our perspective, because it's the same claim in 2019 with the church's chicken added to it, and simply that is preceded.

[00:18:15] Speaker 03:
by the same claims that were made in 2016.

[00:18:20] Speaker 00:
And then in terms of... It's a different employment relationship, isn't it?

[00:18:26] Speaker 03:
If you're talking about churches, yes, you are.

[00:18:29] Speaker 03:
However, whether that is an Ontario issue, the district court obviously thought it was not.

[00:18:39] Speaker 03:
And I think it's important to recall

[00:18:41] Speaker 01:
You don't think it's material that your complaint is against a wholly different employer?

[00:18:48] Speaker 03:
The complaint we would not perceive, Your Honor, to be against a wholly different employer.

[00:18:52] Speaker 03:
The claim was that in furtherance of retaliation from the Burger King perspective, there was a telephone call made to someone at Church's Chicken to say, if you accept the plaintiff's perspective,

[00:19:09] Speaker 01:
By the time the 2019 charge was filed, they could not file charges about what happened in 2014, because those had already expired by time.

[00:19:25] Speaker 01:
So they had to just be background.

[00:19:28] Speaker 03:
Well, that, I guess, Your Honor, depends on the way that you view the plaintiff, in this case, the appellant's approach to this case.

[00:19:40] Speaker 03:
What happened?

[00:19:41] Speaker 01:
Well, it's a matter of counting days on a calendar.

[00:19:46] Speaker 01:
If they had not already filed the 2016 charge, which in fact preserved those claims related to the 2014 activity at Burger King, by 2019, they wouldn't have been able to bring a charge because the right would have expired by then.

[00:20:08] Speaker 03:
I think, Your Honor, the critical issue here is that the 2019, however one characterizes the 2019 charge, whether as we view it as simply a repetition of the 2016 charge or as something else, that charge was filed in 2019.

[00:20:29] Speaker 03:
There was a right to sue issue that was issued in 2021 and

[00:20:35] Speaker 03:
And the suit was not filed within 90 days after that was issued.

[00:20:39] Speaker 03:
And then the 2016 right to sue issue, right to sue letter was issued in 2022.

[00:20:47] Speaker 01:
So assuming that the lawsuit filed once they got the right to sue letter on the 2016 charge in 2022 was timely filed,

[00:21:03] Speaker 01:
Isn't your better argument that it's barred by race judicata?

[00:21:07] Speaker 03:
We're getting there, yes.

[00:21:09] Speaker 03:
But I wanted to address this question of timeliness because we would not concede that it was, in fact, timely.

[00:21:18] Speaker 04:
Well, let me add.

[00:21:20] Speaker 04:
There is a line in the district court order that says, let me just quote it.

[00:21:25] Speaker 04:
It's only one sentence.

[00:21:26] Speaker 04:
Quote, moreover, even if plaintiff did not want to file suit in regard to the events of December 2018, she could have sued to challenge the conduct which occurred from September of 2014 to August of 2015 and simply omitted the 2018 events from her lawsuit, unquote.

[00:21:44] Speaker 04:
How is that right?

[00:21:45] Speaker 04:
She couldn't have done that because the 2014-2015 conduct that was in the 2019 charge was dead on arrival when the charge was filed, right?

[00:21:55] Speaker 03:
Your Honor, I hesitate a little to try and get into Judge Rattle's head.

[00:22:01] Speaker 03:
Well, you're here talking about that order, so you need to get into it.

[00:22:05] Speaker 03:
And so I'm prepared to do that.

[00:22:07] Speaker 03:
What I think she thought, which is what we think also, as I indicated, that the 2019 charge was simply a reiteration, almost verbatim except for the church's element,

[00:22:20] Speaker 03:
of the 2016 charge.

[00:22:22] Speaker 03:
And so I think Judge Brattle's perspective and what she based her decision as to the issue of timeliness was that because this is the same charge essentially from 2016, that then when a right to sue letter was issued in respect to that, then

[00:22:43] Speaker 03:
the right to bring a claim expired at the expiration of 90 days after that.

[00:22:49] Speaker 04:
But they could not have sued on the 2014-2015 conduct because that conduct was already the subject of a separate charge from 2016, right?

[00:22:58] Speaker 03:
There's probably two questions there, Your Honor, which I respect.

[00:23:02] Speaker 03:
Well, then help me with the two questions, please.

[00:23:04] Speaker 03:
I think the two questions are, number one, is it a separate charge?

[00:23:08] Speaker 03:
But number two, to the extent that it is pursued or perceived as a separate charge, then no, it would not be timely.

[00:23:19] Speaker 04:
Okay.

[00:23:20] Speaker 04:
Now, going on to claim preclusion.

[00:23:23] Speaker 04:
Why should you get the benefit of Wilkes?

[00:23:25] Speaker 04:
You never cited Wilkes.

[00:23:27] Speaker 04:
You never cited Wilkes in the district court.

[00:23:29] Speaker 04:
You never cited Wilkes to us.

[00:23:31] Speaker 04:
Why should you get the benefit of that?

[00:23:35] Speaker 03:
Well, we cited the equivalent, Your Honor.

[00:23:37] Speaker 03:
No, you didn't.

[00:23:38] Speaker 03:
What case is the equivalent of Wilkes?

[00:23:42] Speaker 03:
And I may butcher the pronunciation, but the So So Liang Lo versus Pan Am, which is a Second Circuit case,

[00:23:51] Speaker 04:
A second circuit case?

[00:23:53] Speaker 04:
Yes.

[00:23:53] Speaker 04:
Then it would not have been controlling precedent, right?

[00:23:56] Speaker 04:
Wilkes is controlling precedent of our circuit that defines what happens with claim preclusion.

[00:24:01] Speaker 04:
That's not the same thing, is it?

[00:24:05] Speaker 03:
It is persuasive authority, I believe.

[00:24:08] Speaker 04:
My question was, is that the same thing?

[00:24:10] Speaker 04:
It is not, right?

[00:24:12] Speaker 03:
It's not binding on this circuit, no.

[00:24:13] Speaker 03:
Thank you.

[00:24:13] Speaker 03:
If that's the question.

[00:24:14] Speaker 04:
Yes, that is the question.

[00:24:16] Speaker 03:
But the question of whether

[00:24:21] Speaker 03:
One has to cite a particular case if the law is and the position is consistent with that case.

[00:24:33] Speaker 03:
Our view of that would be that that's not the appropriate approach.

[00:24:38] Speaker 04:
The question is one of preservation.

[00:24:40] Speaker 04:
And the question is that Wilkes is controlling precedent of this circuit, which arguably is dispositive here.

[00:24:48] Speaker 04:
You did not cite it to anyone.

[00:24:50] Speaker 04:
You didn't cite it to us.

[00:24:51] Speaker 04:
You didn't cite it to the district court.

[00:24:53] Speaker 04:
And so the question would become, at what point do you lose the right to be able to rely on it?

[00:25:01] Speaker 04:
Note, that doesn't say you can't rely on your Second Circuit case.

[00:25:04] Speaker 04:
Can't say you can't rely on the arguments that are raised on that.

[00:25:07] Speaker 04:
I'm asking you specifically about Wilts, and what basis would it be for us to, as a matter of discretion, just say, well, you just can't rely on that.

[00:25:16] Speaker 03:
Well, I think if I were sitting on the court, my perspective would be that if the issue of claim preclusion has been raised, which it was clearly so, that if there is 10th Circuit authority that is consistent with the idea that the claim is barred by elements and principles of claim preclusion, that that would be the controlling element.

[00:25:42] Speaker 00:
How can we say that Ms.

[00:25:44] Speaker 00:
Watkins had a full and fair opportunity to litigate the Title VII claim in light of the footnote in Judge Robinson's order?

[00:25:53] Speaker 00:
When we think about full and fair opportunity to litigate, our law directs us to think about the fairness of the process, the party's incentive to litigate.

[00:26:04] Speaker 00:
Could you speak to that?

[00:26:05] Speaker 00:
Why is that element satisfied here?

[00:26:08] Speaker 03:
Certainly, Your Honor.

[00:26:10] Speaker 03:
There are, as the Court is well aware, obviously two elements always present in litigation.

[00:26:16] Speaker 03:
And one is, does the substantive claim have merit?

[00:26:20] Speaker 03:
But there are also procedural requirements that have to be met.

[00:26:24] Speaker 03:
And that if those procedural requirements are not met, then whether there's substance to the claim or not, then the Court is obliged to enforce those procedural requirements.

[00:26:36] Speaker 03:
In this case, that procedural requirement, of course, was a timely filing.

[00:26:41] Speaker 03:
Number one, and number two, however, we may differ in terms of whether it is timely or not timely.

[00:26:47] Speaker 03:
But number two, we view that race to decada is dispositive.

[00:26:53] Speaker 00:
That's not answering my question.

[00:26:54] Speaker 00:
I'm asking specifically about the element.

[00:26:56] Speaker 00:
So the element, let's assume the other elements of preclusion fall in your favor.

[00:27:02] Speaker 00:
And we're focused on the fourth element, the exception to claim preclusion on whether this was fully and fairly litigated.

[00:27:11] Speaker 00:
It has to have been,

[00:27:14] Speaker 00:
Ms.

[00:27:15] Speaker 00:
Watkins, we need to be able to say that she had a full and fair opportunity to litigate her Title VII claims.

[00:27:21] Speaker 00:
How can we say that in light of the footnote that specifically carves them out?

[00:27:26] Speaker 03:
Well, the claim or the case that is the basis, the original basis for claim preclusion is the 1981 case that was not dismissed at the motion to dismiss stage.

[00:27:41] Speaker 03:
That was a motion for summary judgment.

[00:27:43] Speaker 03:
And so facts were presented to the court, and what the court concluded, as the court here would be aware, is that there was no evidence, at least no cognizable evidence of race discrimination, and therefore the case was dismissed after all those facts were presented in the form of briefing and on the motion for summary judgment.

[00:28:08] Speaker 03:
So in that case,

[00:28:11] Speaker 03:
It's true, there wasn't a plenary hearing, but there were facts presented under oath in that case.

[00:28:22] Speaker 03:
And so I think Ms.

[00:28:25] Speaker 03:
Watkins had the opportunity to make the case on the facts that underlined that particular case.

[00:28:34] Speaker 03:
And then those facts, those same facts, are what are recited in the lawsuit.

[00:28:38] Speaker 00:
So how should we be thinking about that footnote?

[00:28:40] Speaker 00:
It just doesn't matter?

[00:28:42] Speaker 03:
That footnote, as framed by Mr. McKee, Your Honor, strikes me as essentially an estoppel argument, that there was this footnote reference to the ability to bring a Title VII case once the right to sue letter was issued.

[00:29:08] Speaker 03:
But that was based on, number one, a representation by Mr. McKee.

[00:29:12] Speaker 03:
It wasn't, Judge Robinson did not delve into what the underlying facts were in relation to the Title VII claim that was asserted.

[00:29:22] Speaker 03:
And so the question becomes, I think, two, probably.

[00:29:27] Speaker 03:
One, is there justifiable reliance by Ms.

[00:29:30] Speaker 03:
Watkins on what is dicta in an opinion?

[00:29:36] Speaker 03:
And number two, does Judge Robinson have the, pardon me, does Judge Robinson have the authority to say, well, whatever Title VII says in terms of when you have to bring suit, you can bring it at a time that is inconsistent with that.

[00:29:55] Speaker 03:
We think not.

[00:29:58] Speaker 04:
So on those two, just to put a fine point on it, as it relates to those two points,

[00:30:02] Speaker 04:
in your view, no justifiable reliance, and Judge Robinson didn't have the authority.

[00:30:09] Speaker 03:
I would add to that, Your Honor, only that I think that she was operating under a paucity of facts about this.

[00:30:20] Speaker 04:
And I'm not trying to be critical of her, I just wanted to understand.

[00:30:24] Speaker 04:
So your position is both of those statements are right?

[00:30:27] Speaker 03:
Yes, that would be correct.

[00:30:32] Speaker 03:
unless you have other questions of me.

[00:30:34] Speaker 03:
And thank you for your time.

[00:30:38] Speaker 04:
Thank you, counsel.

[00:30:40] Speaker 04:
Thank you to both of you.

[00:30:42] Speaker 04:
The case was well argued and the case is submitted.

[00:30:45] Speaker 04:
Thank you.