[00:00:00] Speaker 03: Our next case is Jiangbei City of Tulsa, number 255097. [00:00:07] Speaker 03: Counsel. [00:00:10] Speaker 02: Thank you, Your Honors. [00:00:11] Speaker 02: If it pleases the Court, I'm Mark Smith, here on behalf of the appellant, Hua Jiang. [00:00:17] Speaker 02: Mr. Jiang has been a longtime servant of the City of Tulsa. [00:00:22] Speaker 02: He began his employment at the City of Tulsa in around 2010. [00:00:26] Speaker 02: He came to the city by way of China. [00:00:28] Speaker 02: where he earned a bachelor's and a master's degree in engineering. [00:00:31] Speaker 02: Then he made his way to the University of Missouri-Royola. [00:00:34] Speaker 02: In about 2006, I believe his resume says he got his PhD. [00:00:38] Speaker 02: He also obtained a professional engineering license. [00:00:42] Speaker 02: Mr. Jang's resume also sets forth the experience he's had with that PhD. [00:00:47] Speaker 02: He's authored 14 journal articles. [00:00:51] Speaker 02: He's been asked to speak and present papers at over 28 conferences. [00:00:56] Speaker 02: He helped author a chapter in [00:00:58] Speaker 02: one of the best reference books for this area of engineering. [00:01:02] Speaker 02: And he's also received many awards. [00:01:05] Speaker 02: Mr. Jiang has basically dedicated his life to safe drinking water. [00:01:09] Speaker 02: And the people of Tulsa should be very thankful to have a man of this great talent. [00:01:15] Speaker 02: So in 2021, Mr. Jiang wanted to apply to move to a position of superintendent within one of the water plants. [00:01:25] Speaker 02: This move from Mr. Jiang was actually a lateral move. [00:01:28] Speaker 02: The purpose for him in moving to this position was because in the current engineering role he was in, there was not a path for him to move up the management ranks. [00:01:40] Speaker 02: So he had to go somewhere else. [00:01:42] Speaker 02: The superintendent position, like I said, was a lateral move, not a demotion, not necessarily a promotion, but what came with it was the managerial responsibilities that would then allow him [00:01:53] Speaker 02: to start moving up his career and gain that experience later. [00:01:56] Speaker 00: The district court referred to it as a failure to promote claim. [00:01:58] Speaker 00: Is that wrong? [00:02:00] Speaker 00: The claim that you brought? [00:02:03] Speaker 02: So technically, he wouldn't get a pay raise. [00:02:05] Speaker 02: But it does come with other benefits and other responsibilities that weren't available to him in his engineering role. [00:02:11] Speaker 02: So in the sense of gaining new responsibilities, in particular management responsibility, that would be, I guess, technically a promotion. [00:02:21] Speaker 02: Mr. Zhang himself did view it as a promotion because of those additional responsibilities he would take on. [00:02:31] Speaker 02: So the job description for this particular superintendent role, I think it's important to note that it had just been reviewed by the management team in April of 2021. [00:02:40] Speaker 02: And they did make some changes to it. [00:02:43] Speaker 02: It's not that they just reviewed it. [00:02:44] Speaker 02: They went through it and made some changes in anticipation of posting it to take applications for the open job. [00:02:53] Speaker 02: That job description expressly required a bachelor's degree in the particular fields of environmental engineering and technology. [00:03:04] Speaker 02: As part of the city's procedures, the job was posted for internal applicants. [00:03:10] Speaker 02: Three applicants submitted their applications, obviously Mr. Jang, Mr. Hutchcraft, and Mr. Curry. [00:03:18] Speaker 02: It is then part of city policy that [00:03:20] Speaker 02: those candidates have to go through a process called certification. [00:03:24] Speaker 02: And that's basically where the HR department makes sure they check all the boxes in the job description requirement. [00:03:32] Speaker 02: Those three candidates were certified by HR. [00:03:34] Speaker 02: They were administered tests that were not scored, that were meant to test their technical aptitude. [00:03:41] Speaker 02: They then engaged in a round of interviews with three panelists. [00:03:45] Speaker 02: The three panelists included on the panel [00:03:48] Speaker 02: was actually the decision maker, Ms. [00:03:49] Speaker 02: Hunter, who would be making the ultimate decision. [00:03:53] Speaker 02: The panel was giving a list of questions where they could write scores and sort of rank the three candidates. [00:04:00] Speaker 02: The scoring was not outcome-determinative, as we've said in these depositions. [00:04:05] Speaker 02: It's not whoever gets the highest score automatically gets the job. [00:04:09] Speaker 02: And there was no process for, well, do we add them all up? [00:04:12] Speaker 02: Do we take your average score? [00:04:14] Speaker 02: Do we throw out the lowest score? [00:04:16] Speaker 02: It was all there just for [00:04:17] Speaker 02: Ms. [00:04:18] Speaker 02: Hunter's ultimate consideration. [00:04:22] Speaker 02: At the end of that first round of interviews, Ms. [00:04:25] Speaker 02: Hunter obviously selected Mr. Hutchcraft, who she believed to be the top candidate. [00:04:30] Speaker 02: She described him as even across the board. [00:04:35] Speaker 02: Mr. Jang filed a grievance with the HR department, citing both failure to follow policy and certifying these candidates and claiming race discrimination. [00:04:45] Speaker 02: HR denied that. [00:04:46] Speaker 02: He then exercised his right to appeal that to the Civil Service Commission. [00:04:50] Speaker 02: The Civil Service Commission did agree with Mr. Jang that the city should not have certified those two other candidates, leaving Mr. Jang as the only certifiable candidate that applied. [00:05:02] Speaker 02: In response to that, the HR department went and changed the job description. [00:05:11] Speaker 04: There's a valid reason to do that, though, right? [00:05:14] Speaker 04: Otherwise, we only have one applicant. [00:05:17] Speaker 02: Well, the city policy allows them to open the application process to outside applicants. [00:05:24] Speaker 02: They never looked at that route. [00:05:26] Speaker 02: So there were other tools besides, we have to just change this job description. [00:05:31] Speaker 04: What does outside applicants mean? [00:05:33] Speaker 02: Well, people who aren't currently employed with the city of Tulsa. [00:05:36] Speaker 04: So this one was within the city of Tulsa? [00:05:38] Speaker 02: All three of these candidates were. [00:05:40] Speaker 02: It was only advertised internally, both rounds. [00:05:43] Speaker 02: And that's something that was available to them under that policy was to open it to outside applicants, which who knows how many applicants they would have gotten. [00:05:53] Speaker 02: And so no, I don't think it was the only way to get more than just Mr. Jang to be an applicant was to change the job description. [00:06:01] Speaker 02: They could have looked elsewhere. [00:06:02] Speaker 02: And they could have put some effort into recruiting as well. [00:06:06] Speaker 00: Did the amended job description lower the requirements? [00:06:10] Speaker 02: It lowered the educational requirements, yes, your honor. [00:06:13] Speaker 02: It went from requiring the bachelor's degree in those specific fields of engineering and environmental sciences to requiring basically 60 hours. [00:06:22] Speaker 00: Well, it seems that the city is arguing that it didn't lower the requirements, but just altered the requirements to comply with [00:06:31] Speaker 00: the Civil Service Commission's decision. [00:06:34] Speaker 00: How should we be thinking about that? [00:06:37] Speaker 02: I think that's a twist on what the Civil Service Commission found. [00:06:40] Speaker 02: The Civil Service Commission found that these guys could not be certified at all because they didn't have the degree requirements. [00:06:50] Speaker 02: It's important to note in the policy, and the city argues that they amended that policy, but they didn't. [00:06:55] Speaker 02: The policy says that the job description requires specific degrees. [00:06:59] Speaker 02: then you cannot substitute experience for those specific degree requirements. [00:07:03] Speaker 02: And that's exactly what this job description had. [00:07:06] Speaker 02: So I've seen it in multiple places. [00:07:08] Speaker 02: The city laws, hey, we changed our policy to match past practice. [00:07:12] Speaker 02: That rule still exists in the new policy. [00:07:15] Speaker 03: Well, counsel, as I understand it, it isn't the city's contesting the content of the policy. [00:07:26] Speaker 03: I think what they're trying to say, if I understand it right, is that there was a longstanding practice, notwithstanding the policy, to substitute experience for education. [00:07:43] Speaker 03: Did Mr. Jang present [00:07:47] Speaker 03: any evidence in district court to dispute that the city was following a long-time policy in the way it substituted experience for education? [00:07:57] Speaker 02: Well, I think that's one of the issues with the city's. [00:08:01] Speaker 03: Was there any evidence that your client presented at summary judgment to create a genuine issue of material fact on whether that was longstanding practice? [00:08:15] Speaker 03: I think the problem is that [00:08:16] Speaker 02: Well, I'm not trying to avoid it, but I have to address the affidavit to get to the bottom of your question, Your Honor. [00:08:25] Speaker 02: And that being, Ms. [00:08:27] Speaker 02: Felix Warren's affidavit is the only evidence in the record. [00:08:30] Speaker 02: And it's her just bald statement that I've been doing this for 23 years and I've always violated policy. [00:08:36] Speaker 02: But there's nothing else that they presented besides just her bald statement of that. [00:08:40] Speaker 03: Well, it's an affidavit that is unrebutted. [00:08:44] Speaker 03: Where's the counter of it? [00:08:46] Speaker 02: Well, the counter of it is to look at what actually happened in Mr. Jang's case and look at the actual policies. [00:08:52] Speaker 03: Well, isn't the counter evidence that, no, this isn't the way you've done things for the last 25 years. [00:08:57] Speaker 03: But there isn't anything, is there? [00:08:59] Speaker 02: I think because there's an absence of any evidence that they actually did that, besides the affidavit. [00:09:04] Speaker 02: The evidence in this case is that they did it this one time in favor to white younger candidates over Mr. Jang. [00:09:10] Speaker 03: No, that isn't what the affidavit's about. [00:09:11] Speaker 03: They said, look, we've always done it this way. [00:09:15] Speaker 03: I'm not saying that's a great rationale, but it's the rationale. [00:09:19] Speaker 03: And the question I'm asking you is whether that's a fact, even though it's just one affidavit, but at least it's something. [00:09:27] Speaker 03: I mean, you know, affidavits are used to support summary judgment. [00:09:32] Speaker 03: And was there anything to rebut the past practice? [00:09:38] Speaker 02: Well, I think the CSC's determination, telling them you can't do this, I mean, it belies logic that [00:09:44] Speaker 02: All of a sudden, the Civil Service Commission is saying, you're not following policy, but you've been following policy for 23 years. [00:09:49] Speaker 02: You're telling me nobody has ever challenged that in 23 years, except Mr. Drake? [00:09:53] Speaker 03: I don't see anything. [00:09:54] Speaker 03: I've got it on screen. [00:09:55] Speaker 03: Where did the Civil Service Commission say anything other than, this didn't follow policy? [00:10:01] Speaker 03: They didn't say anything about past practice. [00:10:03] Speaker 02: Well, that's what the city is trying to say as well. [00:10:05] Speaker 02: I know, but you're saying- But it doesn't say it either. [00:10:07] Speaker 02: I mean, the problem is the affidavit is not supported by anything. [00:10:11] Speaker 02: It's just a bold statement. [00:10:13] Speaker 02: It is? [00:10:14] Speaker 02: Yes, it's her just saying, for 23 years, I've violated this policy. [00:10:17] Speaker 02: But it provides nothing else to back that up. [00:10:20] Speaker 03: Are you quoting that? [00:10:20] Speaker 03: Is that a quote from the affidavit, I violated policy for 25 years? [00:10:29] Speaker 03: And even if it is, isn't that evidence of a common practice? [00:10:32] Speaker 02: Just straightly answer your question, Your Honor. [00:10:35] Speaker 02: I don't believe that's a quotation. [00:10:37] Speaker 02: I do want to pull out the affidavit. [00:10:46] Speaker 02: Yes. [00:10:47] Speaker 02: The city's practice for at least 25 years prior to August 12, 2021 was that an employee could substitute work experience for years of education at a rate of one year of experience for one year of education, so long as the employee had half of the stated education requirement. [00:11:03] Speaker 03: Remind me who this is again. [00:11:05] Speaker 02: It's Ms. [00:11:05] Speaker 02: Felix Warren, who is the personnel director, the head of HR, and she has a role with the CSC process as well. [00:11:11] Speaker 03: Isn't that someone who would be in a position to know [00:11:16] Speaker 03: that that is the correct statement of fact? [00:11:20] Speaker 02: She would certainly know. [00:11:21] Speaker 02: Yes, Your Honor. [00:11:25] Speaker 02: All right. [00:11:25] Speaker 02: I don't want to belabor the point. [00:11:27] Speaker 02: Well, as part of that, I mean, if that is the practice, I would challenge that, you know, what part of the practice helped Mr. Zheng at all, because everything they did made it harder for Mr. Zheng, even though originally he was the only candidate that should have been certified at all. [00:11:44] Speaker 02: Then you go strip away the educational requirements, and then you put them in these interview panels where, in fact, Mr. Vaughan rated him the highest candidate in those interview panels. [00:11:55] Speaker 02: And so when you look at the disequal treatment on the facts of this case, regardless of how long they say they've been violating this policy, then it shows that Mr. Zheng did not get a fair shake here. [00:12:07] Speaker 02: And it's important to note that he's applied for nine different promotions and moves trying to get himself into a different position. [00:12:14] Speaker 02: And I think if you look at some of the testimony from Mr. Eric Lee, where I asked him about this, how is it that Mr. Jang can break out of this engineering role and actually get himself into a management position? [00:12:28] Speaker 02: They had evidence of white males and a white female who had done this before in the past, like Mr. Jang. [00:12:34] Speaker 02: They were stuck in an engineering role. [00:12:35] Speaker 02: They were able to move laterally. [00:12:37] Speaker 02: And the only suggestion that came about was for Ms. [00:12:39] Speaker 02: Hunter saying he should actually take a demotion. [00:12:43] Speaker 02: And the problem with that is, [00:12:45] Speaker 02: Obviously, working for the city can come with great benefits. [00:12:47] Speaker 02: One of those being that your retirement is based on how much you're earning. [00:12:51] Speaker 02: So for him to take that demotion, it would be a risk that maybe he never gets back up. [00:12:56] Speaker 04: It was the same pay, wasn't it? [00:12:59] Speaker 02: For this superintendent role. [00:13:00] Speaker 02: Ms. [00:13:00] Speaker 02: Hunter's suggestion was he actually go to the supervisory role, which would be an EX-40, not an EX-44. [00:13:07] Speaker 02: And that's the other thing, is that supervisory role maintains a job description that requires a specific college degree to where [00:13:15] Speaker 02: the superintendent who they report to is no longer required to have as much education. [00:13:20] Speaker 02: And that's part of the, where's the business justification for all these changes? [00:13:24] Speaker 02: And that's what I challenged all the witnesses is why do this? [00:13:27] Speaker 02: Why change this job description? [00:13:29] Speaker 02: And most of them said that EX44 level, it is important to have a college degree because you're managing people and you need the technical know-how. [00:13:38] Speaker 04: And so I think. [00:13:39] Speaker 04: But those are two separate things, right? [00:13:42] Speaker 04: And that was at least the asserted [00:13:45] Speaker 04: answer for why he did not get this job. [00:13:47] Speaker 04: He had technical A plus and management C minus. [00:13:56] Speaker 02: That is Ms. [00:13:57] Speaker 02: Hunter's subjective opinion of his management experience. [00:14:01] Speaker 04: The other evaluators did not rate him highly in the management and supervision. [00:14:07] Speaker 04: As you say, the reason that he was interested in this is so he could get some experience. [00:14:11] Speaker 04: In other words, he didn't have much. [00:14:14] Speaker 02: That is true. [00:14:15] Speaker 02: But I think Mr. Vaughn's deposition testimony and Mr. Lee's deposition testimony, I go into great links with how much management experience Mr. Jang has. [00:14:26] Speaker 02: And you know, Mr. Lee talks in particular about Mr. Jang's leadership of the Top Ops team, which is a basically Jeopardy-style competition team. [00:14:34] Speaker 02: And he created the program in Tulsa, and two years later, they were national champions. [00:14:38] Speaker 02: And how proud he was that he built that program for them. [00:14:42] Speaker 02: You know, he had to manage all sorts of [00:14:45] Speaker 02: co-workers and outside contractors as part of these multi-million dollar projects that he oversaw, capital improvement projects. [00:14:53] Speaker 02: And if you look at the way Mr. Lee and Mr. Vaughn talk about that experience that he has and how great that was and contrast it with Ms. [00:15:03] Speaker 02: Hunter's explanations of, oh, he's taking all the credit for team projects, and I'm sorry, I'm out of time. [00:15:08] Speaker 02: You can finish up your thought. [00:15:11] Speaker 02: The juxtaposition of Mr. Lee and Mr. Bond's discussion of his management and leadership experience versus how Mr. Hunter just discounts everything and says he's taking credit for what were team projects. [00:15:22] Speaker 02: He's exaggerating. [00:15:24] Speaker 02: You can tell that she held specific bias against Mr. Jang. [00:15:28] Speaker 00: Can I ask one question? [00:15:29] Speaker 00: Sure. [00:15:31] Speaker 00: Could you clarify something for me on your retaliation claim? [00:15:34] Speaker 00: Yes, Your Honor. [00:15:36] Speaker 00: So what adverse actions form the basis for your retaliation claim? [00:15:41] Speaker 02: So the second denial of the promotion is the base adverse action. [00:15:45] Speaker 02: And we also believe that HR rewriting this job description to allow the second round of interviews, we believe that that was a retaliatory action as well. [00:15:55] Speaker 02: HR got rebuked. [00:15:55] Speaker 02: Can I just do a follow up? [00:15:56] Speaker 03: Because the city contends that you didn't argue that in district court, that the second non-selection was retaliatory. [00:16:05] Speaker 03: I take it you disagree with that. [00:16:06] Speaker 02: I do disagree with that, Your Honor. [00:16:07] Speaker 02: I think we presented all these issues [00:16:10] Speaker 02: And again, that gets to some of our arguments about the court's myopics focus on discrete acts and discrete actions as opposed to taking a holistic view as we should on summary judgment. [00:16:24] Speaker 02: Thank you, counsel. [00:16:24] Speaker 02: Thank you, Your Honor. [00:16:28] Speaker 01: Hayes Martin for the City of Tulsa. [00:16:30] Speaker 01: May it please the court. [00:16:32] Speaker 01: This is a case about disappointment, not discrimination. [00:16:36] Speaker 01: This is not a case about whether the City of Tulsa made the correct decision [00:16:40] Speaker 01: in choosing a candidate other than Mr. Jiang. [00:16:43] Speaker 01: Instead, this is a case about whether Mr. Hua Jiang, a disappointed job applicant, has produced evidence from which a reasonable jury could infer intentional discrimination or retaliation. [00:16:54] Speaker 01: The district court correctly ruled that he did not. [00:16:57] Speaker 01: This court should affirm for three reasons. [00:16:59] Speaker 01: First, the district court correctly applied the Rule 56 summary judgment standard within the McDonnell Douglas framework. [00:17:07] Speaker 01: There is no genuine dispute of material fact in this case, and the district court did not improperly weigh credibility or evidence. [00:17:14] Speaker 01: Appellant's contentions are based on conjecture, speculation, and often statements not found in the record at all. [00:17:22] Speaker 01: When evaluating the admissible evidence that could go to a reasonable jury, no reasonable jury could find for appellant. [00:17:28] Speaker 01: Second, regarding the retaliation claim, the district court correctly held that Mr. Jiang did not establish a prima facie case for retaliation. [00:17:38] Speaker 01: Mr. Jiang certainly had protected opposition. [00:17:40] Speaker 01: He complained that he had been discriminated against. [00:17:42] Speaker 01: However, he also has to show an adverse employment action and show a causal connection between those. [00:17:48] Speaker 00: But didn't the district court treat Mr. Jiang's non-selection as the basis for his retaliation claim? [00:17:55] Speaker 00: Do you agree with that? [00:17:57] Speaker 01: So for the most part, yes. [00:17:59] Speaker 01: The issue would be that Mr. Jiang did not craft a clear retaliation claim cited to [00:18:08] Speaker 01: tens of pages of deposition testimony and a three-page document entitled Retaliation and Intimidation Records, and simply stated retaliation happened. [00:18:18] Speaker 01: Did not clearly articulate that he was claiming the second change was, or that the second non-selection was a retaliatory act until appeal. [00:18:28] Speaker 01: However, even so cannot show causation. [00:18:33] Speaker 01: The city of Tulsa had the same justification, the same operational needs, [00:18:36] Speaker 01: during the first selection that it had during the second. [00:18:38] Speaker 01: There is no way that Mr. John can demonstrate some retaliatory animus that somehow manifested. [00:18:45] Speaker 01: So the city of Tulsa was consistent in its justification, in its process, in its decision. [00:18:50] Speaker 00: I'm a little confused. [00:18:50] Speaker 00: So are you saying that the October 2021 non-selection should be viewed as an adverse action except the city still prevails on the causation element? [00:19:01] Speaker 01: had Mr. Jung raise it at the district court. [00:19:04] Speaker 00: OK, so you maintain your position that it wasn't properly advanced in the district court. [00:19:09] Speaker 00: Yes, a non-selection could be. [00:19:10] Speaker 00: And so my question is, it seems that the district court did pass on it, or at least understood it that way. [00:19:14] Speaker 00: And my question to you is how we should be thinking about that. [00:19:17] Speaker 01: I think that's the district court viewing it in the light most favorable to appellant's claims, is that the change in job description is not an adverse employment action. [00:19:27] Speaker 01: None of the other things that he lists as an adverse employment action. [00:19:30] Speaker 01: The only thing that possibly could be would be the second non-selection. [00:19:35] Speaker 01: But there's no causal connection. [00:19:37] Speaker 01: And similarly, it would still fail on pretext. [00:19:42] Speaker 01: And then regarding pretext, there is no evidence of pretext sufficient to discredit the city's legitimate nondiscriminatory justifications for its actions. [00:19:50] Speaker 03: Let me ask you a question about pretext. [00:19:52] Speaker 03: Yes, sure. [00:19:54] Speaker 03: The Civil Service Commission said that under city policy, Mr. Curry and Mr. Hutchcraft should not have been considered for the promotion in the first instance. [00:20:07] Speaker 01: Yes. [00:20:09] Speaker 01: There were two civil service appeals. [00:20:10] Speaker 01: In the first civil service appeal, after the first non-selection, first certification process, the Civil Service Commission stated that they determined that the city did not follow the policy [00:20:22] Speaker 01: as the Civil Service Commission understood it. [00:20:27] Speaker 03: That's the first half of my question. [00:20:30] Speaker 03: So then, HR changed the job description so that they could be considered. [00:20:38] Speaker 01: HR changed the job description to match what the past practice had been. [00:20:41] Speaker 03: Well, it just so happened that Mr. Curry and Mr. Hutchcraft are back on the list. [00:20:52] Speaker 01: So the city had applied this policy and procedure in that manner, as Ms. [00:20:59] Speaker 01: Felix Warren stated, but also as other witnesses testified. [00:21:02] Speaker 01: Ms. [00:21:02] Speaker 01: Hunter stated this is how she understood the process. [00:21:05] Speaker 01: There actually is an instance of another superintendent that does not have one of those qualifying degrees. [00:21:13] Speaker 01: Furthermore, Mr. Hutchcraft was certified for his pre-tex. [00:21:17] Speaker 03: I'm still trying to get to my pre-tex question. [00:21:19] Speaker 03: Yes, sorry. [00:21:22] Speaker 03: It just seems like what happened here is that in this process, at every step of the way, it seemed like they were trying to put Mr. Hutchcraft in a position to get selected. [00:21:42] Speaker 03: And when it didn't work the first time because of the degree requirements, [00:21:49] Speaker 03: Civil Service Commission comes back and says, that just violates our policy. [00:21:55] Speaker 03: HR turns around and says, oh, we're going to rewrite the job description. [00:21:59] Speaker 03: It just seems like there's some manipulation of the process there to get to the same result. [00:22:05] Speaker 03: Why isn't that pertinent to pretext? [00:22:08] Speaker 03: Why doesn't that raise some questions about the way Mr. Jang was being treated? [00:22:14] Speaker 01: Sure. [00:22:14] Speaker 01: What we're looking at for pretext is whether or not we have a disturbing procedural irregularity, [00:22:19] Speaker 01: that uniquely and directly disadvantages Mr. Jiang based on a protected trait. [00:22:26] Speaker 01: Here, as I cited, there's an unpublished 10th Circuit opinion, Hamilton versus Oklahoma City University, that dealt with a similar process where the selected candidate did not meet the job requirements for the job. [00:22:41] Speaker 01: They required a PhD. [00:22:43] Speaker 01: They selected someone that had not completed their dissertation. [00:22:46] Speaker 01: They did not have a PhD. [00:22:49] Speaker 01: Tenth Circuit in that case stated that that alone, while it might have disadvantaged him based on his educational status, it was in no way related to a protected trait. [00:22:59] Speaker 01: We're looking at a similar thing here. [00:23:01] Speaker 01: Any change does not affect Mr. Jiang based on a protected trait, whether it's his age, national origin, or his race. [00:23:09] Speaker 01: He can only allege that he's disadvantaged because he wanted it to be a degree contest, and that's not what happened. [00:23:17] Speaker 01: And the change by the city is a compliance measure, that the city had been managing its HR in a certain way for years. [00:23:29] Speaker 01: This appeal has that we have a disinterested commission based under our charter that makes this termination the Civil Service Commission. [00:23:37] Speaker 01: And the city says, no, that's the way we liked doing things. [00:23:41] Speaker 01: That's how we've done it. [00:23:42] Speaker 01: That's how we want to keep doing it. [00:23:43] Speaker 01: We're going to make these changes to continue doing it. [00:23:47] Speaker 01: And that's what they did. [00:23:48] Speaker 01: There's nothing that says that as soon as Mr. Jiang makes a complaint, that it freezes the process in time. [00:23:54] Speaker 01: And the city can't change a job description. [00:23:56] Speaker 01: There are 10th Circuit cases that show you can change a job description to lower the requirements. [00:24:01] Speaker 01: That's not a disturbing procedural irregularity on its own. [00:24:04] Speaker 01: And similarly, the 10th Circuit has held that certification of candidates that don't meet the educational requirements isn't enough on its own. [00:24:15] Speaker 01: There's no link here. [00:24:17] Speaker 01: that can show that change in any way is connected to a protected trait. [00:24:20] Speaker 01: And that is where this is fatal for Mr. Jiang on procedural regularity. [00:24:25] Speaker 03: Let me just press it a little bit more. [00:24:28] Speaker 03: Sure. [00:24:28] Speaker 03: If they hadn't changed the job description, at that point, wouldn't he be the only candidate? [00:24:37] Speaker 01: If they didn't change the job description, didn't change any policies, he might be the only candidate. [00:24:42] Speaker 01: And that does not mandate that he would be selected. [00:24:45] Speaker 03: I understand that. [00:24:46] Speaker 03: And I understand your argument, your reading of the evidence. [00:24:52] Speaker 03: But would it be reasonable for a jury to say, what's really going on here is that they were going to do everything they could not to select Mr. Jiang? [00:25:02] Speaker 03: That's what's going on. [00:25:03] Speaker 03: And that's pretext. [00:25:04] Speaker 01: I think the issue here is that Mr. Jiang never was going to fit the operational needs with his education. [00:25:11] Speaker 01: His education doesn't get him there. [00:25:13] Speaker 01: Judge Phillips was correct. [00:25:15] Speaker 01: It's absolutely an A plus in education, the highest education of anyone that applied a huge amount of academic knowledge, but very limited actual operational experience or management experience. [00:25:30] Speaker 01: All of Mr. Jiang's arguments about qualifications deal solely with his strength. [00:25:35] Speaker 01: He never contends with his weakness, and he never contends with the other applicant's strengths. [00:25:40] Speaker 01: This was a situation where there were three applicants, all strong in different areas. [00:25:45] Speaker 01: Mr. Hutchcraft was the, I struggle with it, it's almost like a Goldilocks. [00:25:50] Speaker 01: One has, or Mr. Curry has a ton of management experience, but doesn't have the technical experience you need. [00:25:57] Speaker 01: Mr. Jiang has a ton of academic knowledge. [00:26:01] Speaker 01: No one can test that, and the city values that in his position as an engineer. [00:26:06] Speaker 01: But he didn't have the operational or management experience he needed. [00:26:08] Speaker 01: Mr. Hutchcraft, those met in the middle where he had that operational knowledge as an operations supervisor, [00:26:15] Speaker 01: and then had that management experience from that position and from his time in the military. [00:26:22] Speaker 03: Let me shift gears for just a second. [00:26:25] Speaker 03: I want to make sure I'm understanding your position on the retaliation claim. [00:26:29] Speaker 03: I know you've already talked about it a little bit. [00:26:32] Speaker 03: But do you agree that Mr. Zheng's non-selection the second time, however it was argued, but the non-selection second time, that would be [00:26:44] Speaker 03: an adverse employment action? [00:26:46] Speaker 01: Yes, the non-selection would be an adverse employment action, yes. [00:26:53] Speaker 01: Regarding the other claims, Mr. Zhang also argues that the process was wholly subjective. [00:27:01] Speaker 01: I think Mr. Zhang falls into a fairly common trap of relying very heavily on Garrett v. Hewlett-Packard. [00:27:09] Speaker 01: This case is entirely an opposite to Garrett, where what we're looking at is a very transparent process, more like Hines v. Sprint Management or Conroy v. Vilsack, where everyone can see what the thought process was, how everyone was scored. [00:27:26] Speaker 01: It's entirely transparent. [00:27:28] Speaker 01: And you're necessarily going to have subjective determinations in any process as this court is held. [00:27:35] Speaker 01: I'd also like to address, regarding business justification, [00:27:40] Speaker 01: First, not raise the district court. [00:27:42] Speaker 01: There was no contention regarding the second prong. [00:27:46] Speaker 01: Mr. John made no argument at the district court regarding the city's legitimate business justification. [00:27:53] Speaker 01: An appeal argues that the district court crafted one for the city. [00:27:59] Speaker 01: I look at it as it's worded slightly differently than the way the city words it, either way still supported by the record. [00:28:06] Speaker 01: What's disturbing to me is that [00:28:08] Speaker 01: Most of the evidence related to other managers stating that they don't see the business justification. [00:28:14] Speaker 01: One, I don't really see that strongly in the record. [00:28:19] Speaker 01: And where it does show up, it's other managers in different chains of command that are not responsible for this position. [00:28:26] Speaker 01: Particularly, Eric Lee was not a manager at the time, was not involved in that decision. [00:28:31] Speaker 01: So any exclusion of him makes sense. [00:28:33] Speaker 01: Why would he be excluded in that decision? [00:28:36] Speaker 01: Miss Hunter stated in her deposition that she didn't recall if she was consulted, but was sure she was. [00:28:42] Speaker 01: Appellant states, both at the district court and here, that she said she wasn't consulted, which is not supported by the record. [00:28:50] Speaker 01: And the record also includes the job description request for action. [00:28:53] Speaker 01: It includes the email that loops in Stephanie Hunter on that decision. [00:28:57] Speaker 01: And also very glaringly with Joe Brown, appellant states that she said that she felt HR had discriminated against [00:29:06] Speaker 01: Mr. John, I addressed this at the district court. [00:29:09] Speaker 01: I addressed it in response here. [00:29:11] Speaker 01: At no point has that been retracted by appellant. [00:29:15] Speaker 01: Didn't address it in his reply when Ms. [00:29:18] Speaker 01: Brown very specifically said, no, I don't feel he was discriminated against by HR. [00:29:23] Speaker 01: She certainly didn't like the process. [00:29:25] Speaker 01: But her liking that process is far afield from stating that she thought it was discriminatory. [00:29:31] Speaker 01: And she very much so stated she did not. [00:29:35] Speaker 01: All of this is to say that the entire basis for appellant's claims are its speculation from people that don't have personal knowledge, its conjecture from himself, or it's not supported by the record. [00:29:50] Speaker 01: The district court correctly viewed the record evidence. [00:29:53] Speaker 01: There are things that appellate claims were disregarded. [00:29:57] Speaker 01: because they aren't supported by the record. [00:29:58] Speaker 00: The district court... Can I ask you a question about how the district court viewed the record according to what our law requires for pretext? [00:30:05] Speaker 00: Yes. [00:30:07] Speaker 00: It seems to me that the district court may have been thinking about pretext plus, which is not the law, right? [00:30:17] Speaker 00: The minister court said in discussing Mr. Zhang's discrimination claims and then [00:30:23] Speaker 00: the city's amendment to the job description said plaintiff has not identified any comments by coworkers or other incidents suggesting he was subjected to mistreatment because of his race and age. [00:30:33] Speaker 00: But he didn't have to do that, did he, to satisfy the standard? [00:30:36] Speaker 00: It seems that if the court is evaluating the record evidence under a pretext plus standard that isn't the law, wouldn't that be reversible error? [00:30:45] Speaker 01: So I would disagree that that's what the court was doing there. [00:30:48] Speaker 01: What the court was doing is, [00:30:51] Speaker 01: looking at first, is there any direct evidence of discrimination? [00:30:54] Speaker 01: If there is, we don't apply McDonnell Douglas. [00:30:57] Speaker 01: So the court, when stating plaintiff has not identified any of these things, is stating that plaintiff has not identified direct discrimination. [00:31:06] Speaker 01: So we have to move to McDonnell Douglas. [00:31:08] Speaker 01: That's what this circuit holds. [00:31:10] Speaker 01: That's what the court did. [00:31:11] Speaker 01: So I don't think there's any rational argument [00:31:16] Speaker 01: that's really what happened here. [00:31:17] Speaker 00: So you think the best reading of what I just read to you is this goes to direct evidence, the absence of direct evidence of discrimination? [00:31:26] Speaker 01: See, I've run out of time. [00:31:27] Speaker 01: Can I go ahead and answer? [00:31:28] Speaker 01: Please. [00:31:29] Speaker 01: Yes, that is exactly how I read it. [00:31:31] Speaker 01: That is the start of the section on, I believe pretext, but it's during the McDonnell Douglas discussion. [00:31:37] Speaker 01: That's the court identifying how we get to this analysis anyways. [00:31:42] Speaker 01: Thank you. [00:31:43] Speaker 03: Thank you, counsel. [00:31:50] Speaker 03: Okay, I think you both went over a little bit, so we'll take the case as submitted and counsel are excused. [00:31:58] Speaker 03: I'd like to thank both of you for your arguments.