[00:00:03] Speaker 02:
Okay, we'll now hear number 25-1335, McKagnon versus Cherry Creek School District.

[00:00:15] Speaker 04:
Mackinac, Your Honor.

[00:00:17] Speaker 02:
Mackinac.

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

[00:00:19] Speaker 02:
Thank you. We'll wait one moment until the door is closed in the back. I apologize for the misprint. No, no, no.

[00:00:58] Speaker 02:
I think you can also turn, yeah.

[00:01:03] Speaker 02:
Okay, good, good.

[00:01:06] Speaker 02:
Council, proceed.

[00:01:09] Speaker 04:
Thank you, Your Honor. I'm Patricia Bangert here representing Ms. Mackinac in this case. And if it pleases the court, Ms. Mackinac was an educator for 25 years.

[00:01:28] Speaker 04:
She spent the last six years of her career as a principal. In 2020, she was terminated as a principal and demoted to the position of assistant principal. The reason given was loss of confidence of staff. Now, it's an interesting concept. It wasn't defined anywhere.

[00:01:54] Speaker 04:
It was first used with regard to a woman principal, Chris Tolliver, and then it was used to demote Ms. Mackinac.

[00:02:10] Speaker 02:
Was it not also used against the men? I thought you distinguished a couple cases involving men where it was used because they had other problems.

[00:02:21] Speaker 04:
Yes, Your Honor.

[00:02:22] Speaker 02:
But they still...

[00:02:24] Speaker 02:
used the term lost the confidence, and that was a factor. Am I wrong about that?

[00:02:29] Speaker 04:
No, they did really after the fact. And what we have here is a standard for two women, and that standard was loss of confidence of staff. The standard, on the other hand, for the men was loss of confidence of staff plus women.

[00:02:53] Speaker 04:
The men had issues from credit card misuse to sexual harassment and assault.

[00:03:02] Speaker 02:
But your burden isn't it to show a comparable male?

[00:03:09] Speaker 02:
who wasn't disciplined. In other words, maybe there aren't any examples of males who had also lost confidence of staff and who were retained.

[00:03:22] Speaker 02:
And if that's the case, how are you going to establish your discrimination claim?

[00:03:29] Speaker 04:
And that's a major issue here, Your Honor.

[00:03:35] Speaker 04:
we do have a male who, like Ms. Mackinac, had a bad union listening tour. And a union listening tour is when the union goes out and talks to teachers. I will note here that Superintendent Siegfried said that he would never make a decision to terminate someone or to demote them just on a union listening tour alone.

[00:04:07] Speaker 04:
So we have Ms. Mackinac has a union listening tour.

[00:04:13] Speaker 04:
Mr. Langdon, Ryan Langdon, has a bad union listening tour.

[00:04:22] Speaker 04:
Ms.

[00:04:24] Speaker 04:
Mackinac is terminated three, four months after the bad union listening tour.

[00:04:34] Speaker 04:
and is given no additional assistance. Mr. Langdon, on the other hand, is given two years to improve and is given... The issue there, though... I'm sorry.

[00:04:46] Speaker 02:
The issue there, though, is that the...

[00:04:49] Speaker 02:
supervisors making the decision were different.

[00:04:54] Speaker 02:
And you're going to say that, well, the school board did both, but the school board doesn't really get involved in those matters. They just accept the employers, the employees who are high up in the hierarchy, just accepts their recommendation.

[00:05:16] Speaker 02:
How do you get around that?

[00:05:18] Speaker 04:
Two things, Your Honor. One, as we note in our brief, and I don't have the exact page, as we note in our brief, all of the same characters were involved.

[00:05:35] Speaker 04:
For example, Superintendent Siegfried, did supervise, was the supervisor of Mr. Langdon for a certain point of time, and I think when he got the bad union listening tour.

[00:05:53] Speaker 04:
Scott, the succeeding superintendent Scott, was the chief of staff and involved in Ms. Mackinac's DeMotion, Ms. Roybal.

[00:06:12] Speaker 04:
As you can see from our chart, which I can't find exactly right now, all the same people were involved just in different capacities. But I think the most important thing is that the board was involved. The board is the final say. there was testimony that a member of, or there was evidence that a member of the board, the head of the board, actually went to, in Ms.

[00:06:44] Speaker 04:
Mackinac's case, actually went to the superintendent, Siegfried, and discussed Ms. Mackinac. So I think it's not... Is that mentioned in your brief?

[00:06:59] Speaker 02:
I don't remember that. Is that mentioned in your brief in this court? No.

[00:07:03] Speaker 04:
It is not mentioned in the brief in this court.

[00:07:05] Speaker 02:
Is that a problem for you? Because we don't usually, we usually limit you to the arguments in your brief.

[00:07:13] Speaker 02:
Yes, Your Honor, but that goes to the... It might be very relevant, but if you didn't argue the point in your opening brief, we usually don't consider it.

[00:07:25] Speaker 04:
It's in the record, though, Your Honor.

[00:07:27] Speaker 02:
That's... This happens all the time. We don't consider stuff in the record that's not directed to our attention in your briefing.

[00:07:35] Speaker 04:
Now, it is in the briefs for the summary judgment, and what I'm arguing here is about the court's denial of our summary judgment motion. Once we get to that point where the court is denying the claim...

[00:07:59] Speaker 04:
There's nothing we can do in trial.

[00:08:02] Speaker 04:
So you're right, Your Honor. But I think that it is in the record. And it is something that is relevant. And in addition, the board is the final decision maker. And what is in the record is that the board confers with Dr. Siegfried, Dr. Smith.

[00:08:32] Speaker 04:
I don't know if he's a doctor or not, but I'll give him that. Dr. Smith.

[00:08:37] Speaker 04:
And it is involved. There's a lot in the record.

[00:08:43] Speaker 04:
Cherry Creek says the board doesn't know anything. I mean, the board is the final decision maker. Can I interrupt?

[00:08:53] Speaker 03:
I'd like you to step back just a minute. You were talking about the comparators, the four comparators and the two males, and it looked to me like your argument morphed from your opening brief where you argued this was an evidentiary issue and presumably an abuse of discretion standard. because there was an objection to the admission of the male comparators.

[00:09:17] Speaker 03:
And so we would look at that under an abuse of discretion standard. But then in your reply brief, you seem to drop that, and you seem to be arguing, well, the district court erred in its analysis of essentially the importance of these comparators in the Rule 50 report. 50A analysis, and so it made the wrong decision. Well, that's a de novo review for us, and there's a big difference there. So I wondered if you were aware of the morphing of the argument, and aren't we kind of stuck with your first argument, your opening argument, which is your abuse of discretion standard argument?

[00:09:56] Speaker 03:
I think it's both. Well, you've got to make it in your opening brief if you want it to be both.

[00:10:02] Speaker 04:
Okay.

[00:10:04] Speaker 03:
And you didn't reassert that in your – you didn't reassert the abuse of discretion in your reply. You just kind of dropped it.

[00:10:12] Speaker 04:
What we were doing in the reply, Your Honor, was to reply to the specific arguments of Cherry Creek. And so because of space limitations, we weren't repeating everything, Your Honor. So I hope that answers your question.

[00:10:37] Speaker 04:
But a couple things. With regard to summary judgment, and I think that's probably one of the more important issues, one is, and this is just a weird issue, in the summary judgment opinion, the judge clearly denied summary judgment on the equal protection claim against the district.

[00:11:08] Speaker 04:
And in our brief, we indicate where she does that. She denies the claim.

[00:11:16] Speaker 04:
In a pretrial conference, she denies that she denied the claim.

[00:11:25] Speaker 04:
It was one of the weirder situations I've been involved in. So if you look at summary judgment, the opinion, the court allows the claim against the district equal protection claim to go forward.

[00:11:44] Speaker 04:
Then in the pre-trial conference, and we've noted the citations, she says, no, no, I didn't do that.

[00:11:55] Speaker 04:
And arguments were made regarding responding at superior, but she interrupted those arguments and said, nope, nope, I've already decided this. So we're arguing that the dismissal of that claim was arbitrary, capricious, not based on law, and not based on any of the facts.

[00:12:24] Speaker 03:
Can you address your Equal Pay Act claim?

[00:12:30] Speaker 03:
As I understand your claim, you're conceding that there definitely was a seniority system that was based on years of administrative experience in certain types of roles for principals. Yes.

[00:12:45] Speaker 03:
And the district did pay administrators based on that experience but if I'm understanding your argument correctly you're suggesting that nevertheless they deviated from those written policies with respect to at least one similar coordinator position because she didn't get credit for a coordinator position that was mostly online, and perhaps they deviated from that for someone else?

[00:13:13] Speaker 03:
What's your argument about that? Because it seems to me the school said they used these policies. I think they even had an audit, a full audit of these policies, and people were paid according to these policies as determined by an independent third party. So how does this argument about this possible...

[00:13:37] Speaker 03:
kind of off the books characterization of this other position play into this?

[00:13:42] Speaker 04:
I think the gravamen of this is the burden is on Cherry Creek to show the disparity in pay.

[00:13:54] Speaker 03:
Well, then they showed. They showed they have these policies that they fully complied with and had a full audit of. But you're auditing every single principal in the district to make sure they were compliant with the policy.

[00:14:08] Speaker 04:
They had those policies. Okay. So let me go back.

[00:14:15] Speaker 04:
Up until 2018, I think it was, up until 2018, Ms. Mackinac was...

[00:14:25] Speaker 04:
paid at a certain level. And she was paid at that level because she had so many years of experience.

[00:14:34] Speaker 04:
All her experience.

[00:14:36] Speaker 03:
Yeah, I understand the facts. I understand that she claims she should have been paid based on this coordinator position that gave her some experience, but the school doesn't, the district doesn't allow for that, right? I understand her claim.

[00:14:51] Speaker 04:
I'm just saying what... The difference is, here she's paid this amount, and all the policies...

[00:15:03] Speaker 04:
So in 2018, let's say, she was paid this amount and given credit. 2019, all of a sudden, no.

[00:15:14] Speaker 04:
All the policies were the same. Nothing had changed.

[00:15:20] Speaker 03:
And they did an audit, though, right? Didn't they do an audit? Yeah, yes. School district? Yeah. By an independent third party?

[00:15:28] Speaker 04:
But there was nothing in that audit, Your Honor, that changed the basic standards. The standards were the same. It's just all of a sudden, I guess I'll leave it at that and reserve the last 26 minutes if

[00:15:46] Speaker 01:
I just wanted to ask you a question about Mr. Langdon.

[00:15:48] Speaker 04:
Of course, Your Honor.

[00:15:50] Speaker 01:
And the argument that he was treated more favorably.

[00:15:54] Speaker 04:
Yes, Your Honor.

[00:15:55] Speaker 01:
So he was given... They each had the listening tour, but he was given extended time to cure whatever the problems were, and she wasn't. Is that basically your argument?

[00:16:11] Speaker 04:
Yes, Your Honor. He was given two years... to improve, and he was given an assistant, and he was given much more assistance from the, from Cherry Creek, from the district.

[00:16:28] Speaker 01:
And it was Mr. Muller who was the supervisor who gave him the extra two years?

[00:16:35] Speaker 04:
Yes, Your Honor, yes.

[00:16:37] Speaker 01:
But Dr. Roybal, who was your client's supervisor, didn't give her extra two years.

[00:16:46] Speaker 04:
Absolutely, Your Honor. The union tour was, I think, in December of 2019.

[00:16:53] Speaker 01:
So we have the differential treatment, but the decisions were made by different supervisors.

[00:17:01] Speaker 04:
Well, there's a case, there are cases saying that The immediate supervisor doesn't matter. It's the ultimate decision maker. And the ultimate decision maker here is the board.

[00:17:24] Speaker 01:
I understand your argument. I just wanted to clarify that point. Thank you, counsel.

[00:17:29] Speaker 04:
Thank you, Your Honor.

[00:17:39] Speaker 02:
I'll give you a very short time for rebuttal.

[00:17:47] Speaker 02:
You don't have to use it.

[00:17:54] Speaker 00:
I am Holly Ortiz. I represent all defendants. Please, may it please the court.

[00:18:01] Speaker 00:
This is a case that is quite simply not about an individual that was targeted because of her sex. This is a case about an individual who just was not a very good leader and lost the confidence in her staff.

[00:18:14] Speaker 00:
The issues in this case involve both the grant of summary judgment and the Rule 50 motion, and then, of course, there are the evidentiary issues. And if we look at the evidentiary issues, and let's start with the ones that were raised by the court today. For example, Mr. Langdon as a comparator. The case law says that to be similarly situated, the individual needs to have the same supervisor or decision maker. It does not say ultimate decision maker. It says decision maker.

[00:18:47] Speaker 00:
And in this case, Langdon was supervised by Molnar, Derek Molnar. Mackinion was supervised by Diana Roybal. The individual who made the decision as to how long to give improvement and what supports to give were Langdon and and Molnar. That's the relevant decision maker here. And if we want to go to the next layer of decision maker, which would be the decision maker with respect to who is being recommended for demotion, it's not the same person either. For Langdon, it was Chris Smith.

[00:19:19] Speaker 00:
Siegfried was gone by that time. He wasn't even at the district anymore, and neither was Roybal. For Mackinion, the superintendent who recommended demotion, who actually demoted, he testified the decision was His. And he said, I demoted her. He said, I own that. And that is in the record.

[00:19:38] Speaker 01:
It was Siegfried. It seems like there was some overlap in the chain of supervision for both of them and some group decision-making about the demotion.

[00:19:59] Speaker 01:
Why can't she make the argument that there was sufficient overlap that would allow the comparator evidence relating to Langdon to be considered?

[00:20:14] Speaker 00:
Because while there is some overlap in who was employed when, there is not any evidence that there's overlap with Langdon in who made the decisions. The evidence in the record shows the person that made the decision with respect to what supports he got, was Mueller.

[00:20:30] Speaker 01:
I'm talking about the demotion. I understand your first point, but the demotion decision.

[00:20:37] Speaker 00:
The evidence with the demotion is the person who made the demotion for Langdon was Chris Smith. He was not even involved in any way, shape, or form in the demotion decision for Mackinac. He was her supervisor and before she even got to the last school she was at. He was a supervisor at the Challenge School for a very brief period of time and had nothing to do with supervising her or making any decisions after that, and there's nothing in the record to support that he was in any way involved with her demotion.

[00:21:08] Speaker 00:
He wasn't. Siegfried testified, and it was undisputed. I own that. I made that decision. And we don't have that.

[00:21:17] Speaker 01:
What about the argument that the board made the decision in both instances? How do you respond to that?

[00:21:23] Speaker 00:
Well, the board didn't make the decision. Siegfried said I made the decision. To the extent the board voted on a consent agenda for a recommendation, that is not.

[00:21:33] Speaker 02:
Is that what happened?

[00:21:35] Speaker 00:
Well, there's testimony.

[00:21:36] Speaker 02:
The consent agenda.

[00:21:38] Speaker 02:
consent agenda that they just summarily voted on?

[00:21:41] Speaker 00:
There was testimony from one board member that she was asked, did the board vote on McInyon's demotion? And her testimony was, I think so.

[00:21:53] Speaker 00:
That's the only testimony we have that the board... Right, but there's... Right, but the burden of proof here is on plaintiff.

[00:21:58] Speaker 02:
And

[00:22:04] Speaker 00:
The rest of the evidence, Siegfried's testimony, is that was my decision. They didn't vote on that. Brenda Smith, who was the HR director's testimony, said that was not their decision.

[00:22:17] Speaker 00:
Jennifer Perry said this was Siegfried's decision. The only evidence we have that it was actually the board's decision is one board member going, I think we did.

[00:22:28] Speaker 01:
Well, let's say the board did.

[00:22:31] Speaker 01:
approve, ratify, confirm, whatever you want to call it. Does the...

[00:22:39] Speaker 01:
Does the case law in this area shed any light on whether it matters? In other words, if the superintendent says, I'm making the decision, is that the end of the matter as a matter of law?

[00:22:55] Speaker 01:
Or is this a question that is more factual in nature, that maybe you have a more active board, they actually hear some presentation and they vote or something like that?

[00:23:10] Speaker 01:
Is there any case law that sheds some light on how we should look at that?

[00:23:13] Speaker 00:
So I think the lawyerly answer I'll give you is it depends on what the claim is. In the instance, for example, of a Section 1983 claim, when we're in the realm of the final policymaker for the district, that makes a difference. A decisionmaker is not the same thing as a policymaker. The decisionmaker, which is what the case law says is relevant as far as being similarly situated, is the person who made the decision. In this case, the undisputed evidence in the record is that that was Siegfried.

[00:23:44] Speaker 00:
Even if the board later voted to approve it, Siegfried made the decision, and that's what the record reflects. And more importantly, the decision, the disparate treatment allegation that plaintiff is trying to make, that Ms. McInyon is trying to make, that Langdon should have been a comparator is because he supposedly got two years and she only got a few months. He got support and she didn't. I would note that's not reflected in the record. She got a lot of support, too.

[00:24:15] Speaker 00:
But the decision-maker for that, for what they're basing the disparate treatment on, were Roybal and Molnar. That's the relevant decision-maker here. Not the fact that the board, who had no knowledge, there's no evidence they knew of anything that happened between Roybal and Mackinion and Molnar and Langdon. There's no evidence that the board knew Langdon got more time. There's no evidence that the board knew that Langdon supposedly got more support.

[00:24:46] Speaker 00:
So you can't impute a discriminatory animus to an entity that didn't know anything about it. What you've got to look at is who made the decision. The decision was made by Molnar and Roybal. And if you want to go to the ultimate decision on who recommended expulsion or expulsion, who recommended demotion, that would be Siegfried and Smith. And I think the case law is very clear. It's the decision maker, and that's who we're talking about here.

[00:25:15] Speaker 00:
The other problem with saying the board made the decision is there's no evidence the board was the same for the two individuals across the time. There's no evidence of that in the record at all.

[00:25:26] Speaker 01:
How much separation in time was there between the two decisions?

[00:25:30] Speaker 00:
Langdon was demoted two years after Mackinion left the district.

[00:25:36] Speaker 00:
So a significant chunk of time had gone by.

[00:25:40] Speaker 00:
Along that line, the other issue that I think got raised during Ms. Bangert's part of this was the issue with regard to experience on the EPA claim.

[00:25:58] Speaker 00:
And the record is very clear. The documents are very clear that from 2008 until, well, until after her demotion, actually, the administrator handbook set forth the positions that would be counted as relevant experience, and those included an A to the P, assistant to the principal, an AP, an assistant principal, a principal, an activities or athletic director, and a position called a COSA.

[00:26:29] Speaker 00:
And a COSA, and Judge Moritz, you had asked Ms. Banger about this other coordinator position, that is the COSA position. And the testimony in the record regarding the COSA position is it counted as that one position counted as administrative experience because it was the equivalent of a dean position and had administrative duties. Significantly, there is no documentation anywhere. And all the testimony says that no coordinator, other than the one specific one identified by the district, no other individual who was a coordinator was given credit for coordinator experience.

[00:27:08] Speaker 00:
It just didn't happen. In fact, there's testimonial evidence from that from – Brenda Smith, and from Dr. Perry. The fact that the district in the written documents sets forth these are the positions we'll give experience for, and the only coordinator position they had was the COSA position, which Ms. MacAgnan admitted she never held, shows that the district intentionally excluded all other coordinator positions, or wouldn't have included the one that counted.

[00:27:39] Speaker 00:
Ms. MacAgnan makes an argument in her brief, Well, what really should be counted was her experience as an online learning coordinator, which was not a COSA. An online learning coordinator was a lot like an administrator, and she argues that there is evidence in the written handbooks that the experience should be considered based upon what the duties were.

[00:28:10] Speaker 00:
But the documents in this case don't support that. The section that she is citing to lists six factors that are considered for salary schedules. One of those is experience, is, I'm sorry, responsibilities you've held. A second one is experience, and you can't conflate the two. They're not conflated in the documents. They're not conflated here. And here, the experience that counted as relevant experience is is a COSA, an A to the P, an AP, an athletic or activities director, or a principal.

[00:28:47] Speaker 02:
Your distinguishing experience from what was the other category?

[00:28:50] Speaker 00:
Mackinion has argued that the fact that her duties as an online learning coordinator were a lot like administrative duties and has argued that under the handbook, that means she had relevant experience, but that's not what the handbook says.

[00:29:07] Speaker 03:
Can I ask you to direct you to the dismissal of the Rule 50 ruling on the sex stereotyping claim, the Title IX portion? Absolutely.

[00:29:20] Speaker 03:
So she testified, the plaintiff did, that she definitely perceived a number of comments that she received, it sounds like individually as well as through this audit, that she...

[00:29:37] Speaker 03:
was being stereotyped and she gave specifics and then there were many, many more of these same comments that she points to in this audit report. I may not be giving it the correct title, but she needed to be more nurturing. She needed to be more visible. She needed to be less rigid. She needed to be more caring. She needed to check in more with staff. She lacked empathy.

[00:30:04] Speaker 03:
She didn't focus on vulnerability, trust, relationships. And she suggests that those are, and they certainly could be, stereotyping, sexual stereotyping, and that she felt she perceived them to be. And it seems unquestionably that a number of these comments did form the basis for her supervisor's conclusion that she needed to be demoted.

[00:30:29] Speaker 03:
So tell me, what was your response? Because the district court really didn't do any analysis separately at the Rule 50 stage or at the summary judgment stage before that.

[00:30:43] Speaker 03:
So we don't really have any analysis of this separate and apart.

[00:30:48] Speaker 00:
So the problem with her assertion that she was told, for example, you need to be more nurturing, We drilled down on that in her testimony, and the record reflects that what she said was there was a comment that said she lacked good communication, And that she interpreted that to mean you need to be more nurturing. Not that she was actually told you need to be more nurturing.

[00:31:13] Speaker 03:
Well, there were certainly other comments that she was, that the supervisor was apparently very concerned about that also were, I think, could certainly be considered sex stereotyping. The lack of empathy, too rigid. Need to be more caring, check in more with staff. Vulnerability, not showing enough vulnerability. Trust, wasn't developing trust in her relationships. I mean, what about all of that? That was there.

[00:31:43] Speaker 03:
It was in the notes.

[00:31:45] Speaker 03:
And she said she got some of that and she understood it and she perceived it as stereotyping. What else does she need?

[00:31:53] Speaker 00:
Well, she needs to show that it actually was gender stereotyping. How does she do that? Well, she does that by, one, she could have called witnesses to testify to that. What witnesses? She could have called Diana Roybal. She could have called...

[00:32:09] Speaker 03:
She could have asked Perry and Roybal.

[00:32:14] Speaker 03:
These comments were all given to her right through this report, right? She didn't talk to these witnesses individually, is that right?

[00:32:20] Speaker 00:
Roybal talked to all the witnesses individually. Okay, she did, and these were her notes. Yes, she did. Okay. Yeah, so there are two sets of notes. There's the listening tour, and she could have called Casey. I'm going to forget Casey's last name. She was the union rep, Carson Rose.

[00:32:34] Speaker 00:
She could have called Carson Rose, who was part of the listening tour, to testify about that, or any of the other named people in the listening tour that had those comments.

[00:32:42] Speaker 03:
So she needed to, for Title IX purposes, she needs to prove that the people who made these comments that may easily be perceived as stereotyping, that they intended them to be stereotyping?

[00:32:57] Speaker 00:
I think she needs to prove that the...

[00:33:03] Speaker 00:
The comments were stereotyping, and she testified she wasn't sure because she didn't have enough background. I think she also needs to be able to prove that these comments impacted the comments she perceived as stereotyping because there are pages and pages of comments which are not stereotyping. And she needs to be able to prove that the comments that she subjectively believed were stereotypes are what the decision was based upon. And she simply didn't do that. She could have asked Perry about that when Perry was on the stand.

[00:33:34] Speaker 00:
Hey.

[00:33:34] Speaker 02:
I thought there was something in your brief that the supervisors rejected those statements in the listing.

[00:33:41] Speaker 00:
There is. That came directly from Ms. McInyon. Ms. McInyon testified, my supervisors said they disagreed with this, which completely undermines the argument that the decision was made based upon the gender stereotyping comments. The fact that Ms. Mackinyon believed other comments like she's smart were a gender stereotype, that's subjective belief.

[00:34:06] Speaker 00:
The fact that she believed you need to be more visible is gender stereotyping. That's a requirement for all principals in Cherry Creek School District. It just means get out in your school. And there were copious complaints that were considered by the decision makers here, by first Perry, who recommended a Siegfried and then Siegfried, that Ms. Mackinion was not visible in the schools, that kids didn't know who she was. That was concerning to them, and that's what the record reflects. The record doesn't reflect that they were concerned she wasn't nurturing.

[00:34:38] Speaker 02:
You've gone over a minute and 48.

[00:34:41] Speaker 00:
I have. My apologies.

[00:34:42] Speaker 02:
Do you want to finish your thought or a few further questions? Just finish your thought, but don't take too much time.

[00:34:49] Speaker 00:
Okay. And just the burden of proof here was on Ms. Mackinion to prove that, Gender was the basis for the actions against her, and she didn't meet that burden.

[00:35:04] Speaker 02:
Ms. Bankert, I think a minute will be enough for your rebuttal.

[00:35:10] Speaker 02:
Will a minute be enough for rebuttal?

[00:35:12] Speaker 04:
I think so. I'll talk really, really fast.

[00:35:14] Speaker 02:
Okay, good.

[00:35:16] Speaker 04:
As to comparators, as we note in our brief on page 15, opening brief, Smith was involved, Superintendent Smith was involved in the decision to demote Ms. Mackinac, and he was chief of staff to Siegfried.

[00:35:43] Speaker 04:
Siegfried was also a supervisor of Langdon for a bit. There are cases, La Case and Ibrahim, that say that it is not the immediate supervisor you look to in a comparator case. It is the ultimate decision maker.

[00:36:06] Speaker 04:
There is a lot... You have cases saying that.

[00:36:09] Speaker 02:
Your brief has cited cases saying that.

[00:36:12] Speaker 04:
Yes, Your Honor.

[00:36:15] Speaker 04:
And the Board has ultimate authority over all decisions. EPA, again, the...

[00:36:31] Speaker 04:
Cherry Creek says that they made the decision according to policies, but those were policies in effect for years, and as to stereotyping, they offered nothing. Cherry Creek offered nothing in response to Ms. Mackinon's comments on stereotyping, because it was Rule 50, dismissal.

[00:37:06] Speaker 02:
Thank you, Counsel.

[00:37:07] Speaker 04:
Thank you, Your Honor, and I appreciate the extra time. Thank you all.

[00:37:14] Speaker 02:
Case is submitted. Counselor, excuse. Thank you both.