[00:00:02] Speaker 00: Case 14-5035, Damita M. Walker, appellant, versus J. Charles Johnson, Secretary of Homeland Security. [00:00:12] Speaker 00: Ms. [00:00:13] Speaker 00: Renault for the appellant, Mr. Guzman for the appellee. [00:00:32] Speaker 05: Good morning, Your Honors. [00:00:34] Speaker 05: Ellen Rayno for the appellate plaintiff, Danita Walker. [00:00:38] Speaker 05: We're here today because the district court and the appellee would have this court judge and weigh the evidence [00:00:49] Speaker 05: of pretext, which was ample in the record. [00:00:52] Speaker 05: Our position is that a reasonable jury could find that Walter Leroy was not honest in putting forth his reasons for the various actions he took. [00:01:09] Speaker 05: Ashley, Your Honor, this court in Brady and in ACCA, Brady v. Office of Sergeant At Arms, and the ACCA case held that once the defendant employer has articulated a legitimate non-discriminatory reason that... They don't have to do that until you've shown discriminatory evidence. [00:01:31] Speaker 01: But they have done that, and once they've done that... They don't have to do that until you've shown... You've still got the burden. [00:01:37] Speaker 01: They don't have to put anything on them. [00:01:43] Speaker 01: They don't have to prove anything unless you've done that. [00:01:49] Speaker 01: But they have, Your Honor. [00:01:50] Speaker 01: You might better start there, counsel, as to how you've shown some discrimination. [00:01:55] Speaker 05: Well, Your Honor, I think the question is discrimination and retaliation, they'll none, and to hold us to the prima facie case at this point, [00:02:03] Speaker 05: would not be proper. [00:02:05] Speaker 03: No, I don't think that we're asking you to reestablish a primary patient case, but there are two separate burdens on once the employer has articulated a legitimate non-discriminatory reason and they put forward the reasons that they put forward. [00:02:22] Speaker 03: The burden on you then is to show A, that the reasons that they put forward are not the real reasons, they were pretextual, and B, that the real reason was discrimination. [00:02:36] Speaker 03: And I have to say, some of your briefing reads as if you think you only have to do the first, and that it will flow from showing that their ostensible, legitimate, nondiscriminatory reasons are not the real reasons, period, [00:02:51] Speaker 03: that then we would necessarily conclude that the real reason was discrimination. [00:02:55] Speaker 03: That's not how I read the law after St. [00:02:58] Speaker 03: Mary's Honor Center v. Hicks from the Supreme Court and our cases that follow. [00:03:03] Speaker 05: Okay, well in George v. Levitt, this court said that usually [00:03:08] Speaker 05: proffering evidence of pretext is sufficient to get a case to a jury. [00:03:12] Speaker 05: Also, the Supreme Court said in Reeves that in appropriate circumstances, that's all you need is evidence of pretext. [00:03:22] Speaker 03: So is that, am I reading your brief correctly then, that that's really what you're resting on? [00:03:27] Speaker 03: You're saying, look, given the circumstances here, [00:03:30] Speaker 03: maybe the timing as of raising an inference of retaliation, but basically what it is is he gave a lot of different reasons for what he did, none of them stand up. [00:03:40] Speaker 05: That is the strength of our case. [00:03:43] Speaker 05: And this court said in Tchaikovsky v. Mineta that that's the strength of most employment discrimination cases. [00:03:50] Speaker 05: The evidence of race discrimination is in the way that he treated Mrs. Walker. [00:03:57] Speaker 01: I want to back you up on the in-year brief very early on. [00:04:01] Speaker 01: You say Walker was his only black support. [00:04:05] Speaker 01: Now, counsel, for the, I believe, whatever [00:04:12] Speaker 01: relates that he didn't have any white subordinates for most of his time. [00:04:15] Speaker 01: All of his subordinates were black. [00:04:19] Speaker 01: She testified that her co-workers were black. [00:04:21] Speaker 05: Yes. [00:04:22] Speaker 01: And yet you come back in your rebuttal brief and refer to his white subordinates. [00:04:29] Speaker 01: What on earth are you talking about? [00:04:31] Speaker 05: She was the only black female. [00:04:33] Speaker 01: All right. [00:04:33] Speaker 01: But you're not claiming gender discrimination. [00:04:35] Speaker 01: No. [00:04:35] Speaker 01: You didn't say she was the only black female. [00:04:38] Speaker 01: You said the only black. [00:04:40] Speaker 01: And then in your rebuttal [00:04:42] Speaker 05: I believe I said she was the only black and female. [00:04:47] Speaker 01: I'm looking at what you say. [00:04:49] Speaker 01: Okay, well I may have gotten it wrong. [00:04:50] Speaker 01: He was the only black subordinate. [00:04:52] Speaker 01: I'm looking at it. [00:04:53] Speaker 01: I'm reading it. [00:04:54] Speaker 01: I don't have to remember the book. [00:04:55] Speaker 01: Okay. [00:04:56] Speaker 01: And then you reference J.A. [00:04:57] Speaker 01: 488-489 which does not support that proposition. [00:05:01] Speaker 05: I apologize, Your Honor. [00:05:02] Speaker 05: I did not. [00:05:03] Speaker 01: You had a chance to correct it in your reply brief after it was pointed out to you by the athletes. [00:05:14] Speaker 01: you know you persist in the same [00:05:28] Speaker 01: Frankly, mischaracterization of the evidence. [00:05:31] Speaker 05: Your Honor, that was entirely unintentional. [00:05:34] Speaker 05: I didn't have the case below. [00:05:35] Speaker 05: I didn't take the depositions. [00:05:37] Speaker 01: Not you personally. [00:05:38] Speaker 05: Yes, I apologize. [00:05:40] Speaker 05: I apologize. [00:05:42] Speaker 05: The fact is, she was the only black woman. [00:05:47] Speaker 01: But you definitely did not claim gender discrimination. [00:05:51] Speaker 01: No, we did not claim gender discrimination. [00:05:53] Speaker 01: No. [00:05:54] Speaker 01: Racial discrimination. [00:05:55] Speaker 01: And retaliation. [00:05:57] Speaker 01: And retaliation. [00:06:01] Speaker 05: Well, I believe that the evidence of pretext, when we show the jury that he's given false explanations, that that is sufficient to raise... [00:06:23] Speaker 01: and he has persons of a different race, where is your evidence upon which they reasonable prior facts? [00:06:29] Speaker 01: Three times. [00:06:30] Speaker 03: Well, so you really are, I mean, you mentioned what George or, you know, I really think it's- George versus Levitt? [00:06:37] Speaker 03: Yeah, I don't think that case supports what you're saying, which is that it's typical simply to rebut with evidence the legitimate nondiscriminatory reasons and say they're false. [00:06:48] Speaker 03: I mean, way more often than not, [00:06:51] Speaker 03: You may disagree, the person may have reasons that don't hold up, but they're the decision-makers. [00:06:57] Speaker 03: You have to have something that links it to race. [00:07:01] Speaker 03: And maybe it would be this is the only black employee in a unit that could start to get you there, but that's not true here. [00:07:10] Speaker 03: It's very, very hard to see how someone would infer that instead of [00:07:18] Speaker 03: you know, where she was from in the country, the pace of her attitude at work, her, you know, he just didn't really like her, you know, all of which are not protected by Title VII. [00:07:29] Speaker 03: Why would we assume that it was raised? [00:07:33] Speaker 03: So it would be actually maybe helpful if you'd focus us and say, what do you think is the most telling evidence in this record? [00:07:41] Speaker 05: I think the most telling evidence is the combination of all the falsehoods, and I can go over them. [00:07:49] Speaker 04: Other than the falsehoods, what evidence is there of a race discrimination? [00:07:54] Speaker 04: So you've got your pretext. [00:07:57] Speaker 04: So the pretext doesn't involve the use of the word race, so it's just that you have your argument that he gave false answers and false explanations. [00:08:05] Speaker 04: Is there anything else in the record that points to race, or do you have to live entirely on the fact that we can say he lied? [00:08:13] Speaker 04: The way that he treated her. [00:08:14] Speaker 04: The way he treated her is every single employment case in the country. [00:08:22] Speaker 04: What can you point to that's race? [00:08:25] Speaker 04: It's only the pretext, but the retaliation is also... Yeah, just on the discrimination because I think we've said ordinarily pretext is enough. [00:08:38] Speaker 04: get to the jury, but we said that in the context in which normally somewhere, normally there's a prima facie case that creates a presumption about race-based decision-making. [00:08:48] Speaker 04: And I agree with you that once we're at the, an explanation is given and you're fighting about that, that's what the case is about, but you can, as Reeve says, go back and look at that prima facie evidence and include that as part of [00:09:03] Speaker 04: the evidence on your ultimate burden of persuasion that there was race involved here. [00:09:08] Speaker 04: Is there any case where there was nothing, nothing in the record at all to suggest race other than the fact that the person gave private victory, allegedly false, different answers? [00:09:23] Speaker 04: Any case that's pure pretext? [00:09:25] Speaker 04: Pure pretext. [00:09:28] Speaker 05: I would have to think on that. [00:09:30] Speaker 05: I didn't, I wasn't prepared to address that question because in our cases, typically, I'm not sure what your typical cases are, but this case, you knew you came in here and all you had was pretext. [00:09:42] Speaker 05: Right, and I feel that in many of my cases all I have is pretext. [00:09:48] Speaker 05: I'm trying to think. [00:09:55] Speaker 05: I don't know off the top of my head if there's any case that had solely predicts. [00:10:00] Speaker 05: I do know that [00:10:03] Speaker 05: the George V. Levitt case, the court said that usually pretext is enough. [00:10:08] Speaker 03: But that wasn't even part of the holding in that case. [00:10:10] Speaker 03: Isn't that a case in which the difficult issue is whether one person who's alleged to have bias, that bias can be attributed to someone else who's making the decision? [00:10:20] Speaker 03: I mean, it's just not part of the holding in the case. [00:10:24] Speaker 03: It's not contextualized for us at all. [00:10:25] Speaker 03: And given the very clear Supreme Court [00:10:31] Speaker 03: guidance from St. [00:10:33] Speaker 03: Mary's Honor Center and several cases in our circuit that say, you put the prima facie case aside, what you look at is these two questions. [00:10:40] Speaker 03: A, can you show their reason to be pretext? [00:10:43] Speaker 03: And B, that the real reason for the decision was discrimination. [00:10:47] Speaker 03: And certainly, you can have overlapping evidence that gives rise to both of those inferences. [00:10:59] Speaker 03: We need something that puts us in the retaliation and or racial discrimination box. [00:11:05] Speaker 05: I don't believe that's the state of the law, but I would request permission to supplement. [00:11:11] Speaker 05: I believe there's a case that says it's the unusual case that requires something more than pretext in order to get to the jury. [00:11:19] Speaker 04: That may be, but maybe the unusual one is one where there's nothing else in the record at all that points to race. [00:11:25] Speaker 04: And the pretext evidence is sufficiently thin that we don't think a rational jury... I mean, I think that's what the district court's decision here was. [00:11:33] Speaker 04: I'm just positing it back to you, that given that, there's nothing on which rational jury could determine race discrimination. [00:11:41] Speaker 05: But a reasonable jury can infer from the falsity of the explanation... That it was race as opposed to gender? [00:11:49] Speaker 04: Yes. [00:11:50] Speaker 04: Why? [00:11:51] Speaker 03: What on earth would let them know it was race rather than gender versus I just dislike you? [00:11:55] Speaker 03: Or taking a FMLA leave. [00:11:57] Speaker 03: Or having someone you could think, oh, well, she's got this sick mother at home. [00:12:03] Speaker 03: She's not going to be reliable. [00:12:04] Speaker 03: Even though she's gotten FMLA leave, she's taking it properly under FMLA procedures. [00:12:10] Speaker 03: It could be retaliation based on that, which I don't think you've pursued. [00:12:15] Speaker 05: No, what we've most strongly pursued is the retaliation claim. [00:12:19] Speaker 05: I'd like to move to that, because I see him. [00:12:22] Speaker 01: Well, before you do that, just refresh me on what your evidence of pretext is. [00:12:28] Speaker 05: The evidence of pretext is, well, first, he charged her as AWOL and said, [00:12:34] Speaker 05: that he didn't give permission for the acting supervisor to approve her leave. [00:12:39] Speaker 05: The acting supervisor says that he did give him permission, so a jury could find that he's lying about that. [00:12:47] Speaker 05: The second one, he says that she violated the leave restriction letter and he charges her AWOL when she does provide reasonable notice, which is what the leave restriction requires [00:13:01] Speaker 05: FMLA circumstances that you provide reasonable notice. [00:13:04] Speaker 05: Her mother was in dire circumstances. [00:13:06] Speaker 05: She called him, left a voicemail, and she also sent him an email. [00:13:11] Speaker 05: Now, the procedures that are outlined in the leave restriction letter are modified by the requirement that if you have an emergency situation and you can't request leave beforehand, it has to be reasonable under the circumstances. [00:13:24] Speaker 05: He didn't even find out what the circumstances were, but he charged her AWOL. [00:13:29] Speaker 05: With regard to the reprimand, he has made exaggerated claims and has changed his claims over time as to what it is she said and did when she came in and gave him a leaf slip. [00:13:44] Speaker 05: She says she was in the middle of having an asthma attack and could barely speak. [00:13:49] Speaker 05: He says that she said very loudly and was very rude and slammed the paper down. [00:13:56] Speaker 05: He says slammed in a deposition. [00:13:58] Speaker 04: When did that happen? [00:13:59] Speaker 04: What was the date of that? [00:14:00] Speaker 05: The date of that? [00:14:03] Speaker 05: The date of the incident or the? [00:14:05] Speaker 05: The incident. [00:14:06] Speaker 05: I believe the incident was in October of 2008. [00:14:16] Speaker 05: And when was her EEO filing? [00:14:19] Speaker 05: When did he become aware that she filed this EEO complaint? [00:14:22] Speaker 05: In April of 2008, but the first between the first Act of retaliation We believe the first even though it's not actionable on its own is the leave restriction letter, which was June 25th Okay, so April May June so you have three months between two months [00:14:42] Speaker 05: I thought you said he learned in April and then... He learned in April, so April to May is one month and May to June is two. [00:14:47] Speaker 04: Okay. [00:14:48] Speaker 04: Well, I guess we don't have the date in April. [00:14:50] Speaker 04: Even with two months, and in between April and June, did he give her any... How did he treat her between April and June? [00:14:59] Speaker 04: What do you object to between April and June? [00:15:02] Speaker 04: Between April and June? [00:15:04] Speaker 04: Did she have any contact with him? [00:15:05] Speaker 04: Did you seek leave from him? [00:15:11] Speaker 04: She did. [00:15:12] Speaker 04: Lots of leave from him? [00:15:13] Speaker 04: I wouldn't say lots of leave, no. [00:15:15] Speaker 04: I thought it was like 17 days or something like that in the first couple months. [00:15:18] Speaker 01: 20% of her assigned working days when she was in the late hours. [00:15:22] Speaker 05: She did seek leave, and she was under FMLA at the time, so she was seeking leave to take care of her mother. [00:15:28] Speaker 05: That was approved. [00:15:31] Speaker 04: The approval didn't come until June 16th, so between April and June 16th, [00:15:37] Speaker 04: He was giving, feeding all of these very extensively. [00:15:41] Speaker 04: And you have no objection to that. [00:15:43] Speaker 04: There was no sign of differential treatment. [00:15:45] Speaker 04: I'm sorry? [00:15:46] Speaker 04: There was no sign that he was treating her differently than anyone else. [00:15:49] Speaker 04: Well, he was hostile to her all throughout. [00:15:53] Speaker 04: Hostile is grander all our leave requests. [00:15:54] Speaker 04: It's hard to call that hostile. [00:15:56] Speaker 04: Whatever, because that's exactly what I'm asking you. [00:15:58] Speaker 04: What evidence of hostility do you have between April and June? [00:16:03] Speaker 04: Between April and June? [00:16:04] Speaker 04: I mean, she testified that he treated her with hostility. [00:16:08] Speaker 04: There weren't... That's very conclusory. [00:16:10] Speaker 04: What did she say factually that he did that was hostile between April and June? [00:16:18] Speaker 04: Because that's a long period to have an inference that what he did in June was to retaliate for something he learned about in April that didn't even involve him. [00:16:27] Speaker 04: And I'm guessing asking is a legal question of law when you have that much time and you have a lot of intervening facts that point the other direction where he's not being hostile and no evidence of actual hostility. [00:16:41] Speaker 04: How does that get factored into summary judgment analysis? [00:16:44] Speaker 05: I think that what you're doing right now, and you're talking about weighing the evidence, you're weighing the evidence of the... Well, you have to do something with the fact that there was two month gap between... [00:16:54] Speaker 04: The him learning of the EEO complaint. [00:16:56] Speaker 05: That's very short. [00:16:57] Speaker 05: Two months is very short for somebody to take action against an employee. [00:17:02] Speaker 05: The case law has held that that standing alone is enough to show retaliation. [00:17:06] Speaker 03: Part of the difficulty in this case is that there is an undisputed [00:17:13] Speaker 03: practice on your client's part of being late and not following the procedures that are required. [00:17:20] Speaker 03: So, in fact, what happened from April to June is that she was absent, I think, was it 17 times, which she acknowledges that she was absent. [00:17:29] Speaker 03: And in fact, her supervisor gave her a free pass on those. [00:17:33] Speaker 03: And then, you know, the record does not [00:17:38] Speaker 03: dispute those. [00:17:39] Speaker 03: And then, you know, she says she thinks it's unfair that he put a leave restriction on, but I think he's sort of, like, communicating with her as a responsible manager. [00:17:47] Speaker 03: Okay, these are the expectations. [00:17:50] Speaker 03: If it's unclear, let me be clear. [00:17:52] Speaker 05: But the leave restriction says that when you have to take emergency FMLA, it has to be reasonable under the circumstances. [00:17:59] Speaker 05: Then when her mother is a mess, you know, starting fires in the kitchen and there's feces all over the place, [00:18:05] Speaker 05: She calls and leaves a message. [00:18:08] Speaker 05: She also emails him. [00:18:09] Speaker 05: And he doesn't leave any of that into consideration. [00:18:13] Speaker 03: Well, what he does is he says, look, we have a restriction. [00:18:15] Speaker 03: And what you're supposed to do if I'm not there is call the next level supervisor. [00:18:19] Speaker 03: And she doesn't. [00:18:21] Speaker 03: Right? [00:18:22] Speaker 03: Is that reasonable? [00:18:23] Speaker 03: She doesn't just get that. [00:18:23] Speaker 03: Given the state her mother was in? [00:18:25] Speaker 03: But you don't have an FMLA claim here. [00:18:26] Speaker 03: You don't have an FMLA claim, I thought. [00:18:28] Speaker 05: No, no, no. [00:18:28] Speaker 05: But in the leave restriction letter, it's the procedures. [00:18:32] Speaker 05: What's so reasonable about that? [00:18:33] Speaker 05: The procedures are that you have to do what's reasonable under the circumstances. [00:18:39] Speaker 05: What? [00:18:40] Speaker 05: JA117, when it's an emergency situation, when [00:18:46] Speaker 05: you're taking care of your mother and she's in that situation and all you can do is make one phone call and send one email [00:18:54] Speaker 05: That's reasonable. [00:18:55] Speaker 05: But the fact is, he didn't even ask her about the circumstances. [00:18:59] Speaker 05: He just charged her AWOL without even considering when he knows her mother is suffering from dementia and that she's the only person taking care of her. [00:19:06] Speaker 04: Did you? [00:19:09] Speaker 04: There are regulations about what limitations can be put or what rules can be put around someone requesting an FMLA leave that the Department of Labor has issued. [00:19:22] Speaker 04: make any showing that these restrictions in the leave letter, in the leave restriction letter, departed from regulations, what regulations permit? [00:19:31] Speaker 05: I don't think that the [00:19:34] Speaker 05: The phone call procedure does depart, but there's a... That's apart from the regulation? [00:19:38] Speaker 05: Which regulation? [00:19:39] Speaker 05: I believe it does, but that's not really an issue. [00:19:42] Speaker 04: I didn't read the regulations. [00:19:43] Speaker 05: Because the leave restriction letter says at the end that if it's an emergency, you only have to do what's reasonable under the circumstances. [00:19:50] Speaker 04: Again, this all sounds to me like a fight, like maybe you could have had an FMLA claim. [00:19:54] Speaker 04: I'm trying to tie this up to how that shows he was retaliating for her filing an EEO complaint many months earlier. [00:20:02] Speaker 05: This was his way of retaliating. [00:20:07] Speaker 04: For the EEO complaint? [00:20:08] Speaker 04: Yes. [00:20:09] Speaker 04: Not for getting the FMLA lead? [00:20:10] Speaker 04: No, not for getting the FMLA lead. [00:20:12] Speaker 04: And you said, do you have a case that says two months allows an inference of retaliation? [00:20:18] Speaker 04: Because I thought the time period was a lot shorter in most cases. [00:20:23] Speaker 05: I'm sure the Supreme Court in, I think it's Clark versus Bregan, said that under three months was sufficient. [00:20:32] Speaker 05: I think that's the case. [00:20:38] Speaker 05: As far as I was concerned, and I apologize for not having the cases at the tip of my tongue, but it's settled law that all you need is pretext and that three months is short enough. [00:20:49] Speaker 05: In the employment context, we often have a lot longer time before someone takes an action against an employee because it takes time to write it up and decide it. [00:20:58] Speaker 04: I mean, he didn't... And is that longer time filled up with positive actions by the same... That's what makes this... [00:21:05] Speaker 04: It's harder for me to figure out because there are all these positive actions and you don't have any negative actions in between. [00:21:11] Speaker 04: So you've got two months. [00:21:12] Speaker 04: But that goes to the weight of the evidence. [00:21:16] Speaker 04: I'm not sure. [00:21:17] Speaker 04: I'm asking whether that's how it should be looked at or whether, in fact, there's sort of a break in this inferential chain that you're asking to have made. [00:21:24] Speaker 04: If nothing happened in between, that would be one thing. [00:21:27] Speaker 04: But if you have a whole pile up of leave, leave, leave, leave, leave, leave, leave, leave, leave, leave, leave, [00:21:32] Speaker 04: And then you go, ah, here's another leave decision two months later. [00:21:36] Speaker 04: That leave decision must be retaliation. [00:21:39] Speaker 04: Please ignore, as a matter of law, and just evaluating the evidence for summary judgment, all those 17 other granting leave decisions. [00:21:47] Speaker 05: Well, I believe that the way you're looking at the evidence is weighing it. [00:21:51] Speaker 05: When you're talking about the positive things he did and weighing them against the evidence that we're reporting, [00:22:01] Speaker 05: A jury should have the chance to look at him, be questioned, and to have him talk about why he did what he did and why he approved leave. [00:22:11] Speaker 05: And Ms. [00:22:11] Speaker 05: Walker should also be permitted to testify. [00:22:14] Speaker 05: I know you're not giving much weight to the way that he treated her, but a jury might see it as significant that he was hostile to her. [00:22:24] Speaker 04: Okay. [00:22:24] Speaker 04: Thank you. [00:22:35] Speaker 01: I mean, you're in front of a jury, and you ask the question to your client, was he hostile to you? [00:22:41] Speaker 01: You ignore whether it's leading or not. [00:22:43] Speaker 01: Isn't that objectionable as coming for a conclusion of the question? [00:22:47] Speaker 05: Well, that's not the way I would ask it at trial. [00:22:49] Speaker 05: At trial, I would say, and how did you treat him? [00:22:51] Speaker 01: Do you really have anything that would support her testifying he was hostile to me? [00:22:58] Speaker 04: Yeah, the point of summary judgment is you're supposed to come forward with that stuff you would get out at trial about how he was hostile to her. [00:23:04] Speaker 03: I mean, you point to her testimony about he was strangely difficult, he was abrupt, he was not conversational, although not rude. [00:23:14] Speaker 03: She felt he was trying to be difficult with her own purpose. [00:23:16] Speaker 03: She couldn't guess why. [00:23:17] Speaker 03: So I think that's what you're referring to it when you talk about the hostility, that she feels uncomfortable around him. [00:23:25] Speaker 05: Well, that he seems to be just uncomfortable in her presence. [00:23:30] Speaker 01: How he seems is another matter of interest. [00:23:46] Speaker 05: No, I think it would be more persuasive if she testified in more detail as to why she made those. [00:23:53] Speaker 03: But, I mean, one of the things that's difficult about that testimony is it's followed by testimony that she thought that he treated Albritton and Thelder's tally perfectly, politely, that he was [00:24:05] Speaker 03: you know, positive with them, professional, nice and respectful with them, they're also African Americans. [00:24:11] Speaker 03: So in terms of, you know, what is the inference that we're getting from the facts that she's putting forward? [00:24:16] Speaker 03: Difficult. [00:24:17] Speaker 03: It's not impossible, because you can be subject to discrimination based on your race, even if other people of, you know, the same broad category aren't. [00:24:26] Speaker 03: I'm not suggesting that, but I'm just still looking for [00:24:30] Speaker 03: the strongest places where you think the inference is that it's racial, that it's a pretext for discrimination as distinct from just a bad reason or a wrong reason. [00:24:41] Speaker 05: Well, why would he give all these reasons is what a jury would have to wonder. [00:24:46] Speaker 05: And I didn't finish with the [00:24:50] Speaker 05: things that we believe are dishonest. [00:24:51] Speaker 05: For one, he says he never got her name on a certificate list for promotion, and the evidence shows that OPM referred her on a list. [00:25:02] Speaker 03: Well, the evidence shows that OPM generally referred her, but I thought the evidence also showed that the list that the decision maker got was limited to GS-14s, and that's why she wasn't on it. [00:25:13] Speaker 03: That there weren't other GS-13s on it, white, black. [00:25:15] Speaker 03: Well, because there's more than one list. [00:25:18] Speaker 03: But the ultimate list they get, they're like, whoa, embarrassment of riches, let's pick from GS14. [00:25:22] Speaker 05: But the OPM letter shows that her name was referred on a GS13 list. [00:25:28] Speaker 03: Months earlier. [00:25:29] Speaker 03: That's the bigger list. [00:25:31] Speaker 03: That's the veneer. [00:25:33] Speaker 05: No, no, no. [00:25:35] Speaker 05: We believe a jury can infer that because OPM usually sends more than one list, that there was more than one list, that her name was on a GS-13 list, and that he decided to pick from the 14 list because he didn't want to. [00:25:46] Speaker 05: Do you have any evidence that he got that other list? [00:25:48] Speaker 05: The evidence that he had the list is that OPM says that they gave him the list. [00:25:52] Speaker 04: Did they say they gave it to him, or did they send it to the decision maker? [00:25:55] Speaker 04: They sent it to the selecting officials, what they said. [00:25:57] Speaker 04: And is he the selecting official? [00:25:59] Speaker 05: He was the recommending official. [00:26:01] Speaker 05: OK, so who's the selecting official? [00:26:03] Speaker 05: They don't use that term. [00:26:04] Speaker 05: Is there a selecting official? [00:26:06] Speaker 05: All right. [00:26:08] Speaker 05: I mean, his recommendation is who got promoted, so I believe so. [00:26:14] Speaker 04: All right, I'm trying again now. [00:26:15] Speaker 04: You're from the government. [00:26:16] Speaker 05: Thank you. [00:26:32] Speaker 06: May it please the Court, Javier Guzan, on behalf of the Department of Homeland Security. [00:26:36] Speaker 06: Your Honor, there is no evidence in the record that gives a rise of an inference of either racial discrimination or retaliation in this case, or respect to the claims that Ms. [00:26:47] Speaker 06: Walker has advanced in this case, and that this record correctly granted some re-judgment. [00:26:51] Speaker 06: Then I'll start out with the [00:26:54] Speaker 06: AWOL claim that Ms. [00:26:55] Speaker 06: Walker has put forward. [00:26:57] Speaker 04: I'll ask you one thing before we get to that, just about governing law, because that's more our specialty. [00:27:02] Speaker 04: You invoke the Supreme Court decision in the South West v. Nassar case? [00:27:07] Speaker 04: Correct. [00:27:09] Speaker 04: On the sort of but for requirement now for retaliation claims? [00:27:13] Speaker 04: What are we supposed to do? [00:27:16] Speaker 04: Did you argue below? [00:27:17] Speaker 04: Did you preserve the question of whether the standard the court was applying should have been but for? [00:27:23] Speaker 04: No, Your Honor. [00:27:24] Speaker 04: The Nassar case post-dated the absence. [00:27:26] Speaker 04: Right, right. [00:27:27] Speaker 04: But people preserve arguments all the time, even if there's certain precedent. [00:27:30] Speaker 04: You put that saying we'd like to be able to take advantage of that when it happens. [00:27:35] Speaker 04: You didn't do anything like that. [00:27:36] Speaker 06: Your Honor, as I stand here, I don't recall whether we [00:27:39] Speaker 06: raise it in our motion for summary judgment. [00:27:41] Speaker 06: It would have been a subsidiary point if we raised it, it wouldn't have been a principal point. [00:27:45] Speaker 04: And then if, what would we have to do with something like that if we obviously, we try to apply the law that governs at the time of decision, but all the summary judgment briefing and what [00:27:56] Speaker 04: through discovery plaintiff would have understood her burden to being identified in evidence would have been done under the other standard, the lesser standard, the softer standard. [00:28:07] Speaker 04: Like the title said, a merit standard as opposed to retaliation standard. [00:28:12] Speaker 04: You know, substantial factor or something like that. [00:28:14] Speaker 04: So the whole pre-summary, all the summary judgment process went under a different standard than this one. [00:28:20] Speaker 04: So it's the best thing for us to [00:28:23] Speaker 04: apply that governing law standard to a record that wasn't prepared by the plaintiff in light of that, or would we have to remand, or what would we do? [00:28:31] Speaker 06: I believe that the court could properly apply Nassar ruling or whatever intervening standard. [00:28:36] Speaker 04: It's hard to ding them for not coming forward with evidence of a but for standard that didn't apply to them at the time they were coming forward with their summary judgment showing proper. [00:28:44] Speaker 06: And I'm having in my mind, when Nassar came out, we had any number of cases at the time pending in the Title VII context that were either post-discovery or, of course, in a discovery, and raising the Nassar argument and having to dysrecord the side cases. [00:29:02] Speaker 04: Were they post-summary judgment decision? [00:29:05] Speaker 06: Was it a? [00:29:06] Speaker 04: You said they should post discovery, but were they post the summary judgment decision being made that you're thinking of? [00:29:11] Speaker 04: No, at least in the cases that I. Because then there's still time to sort of go back and get a little more discovery. [00:29:16] Speaker 04: If you think you need more discovery to meet the new standard, you can ask for it, and you could deal with it. [00:29:21] Speaker 04: It's just a little hard for us to say that a plaintiff failed to make a showing that you didn't argue they had to show, that the court didn't apply to them. [00:29:30] Speaker 06: I think they can. [00:29:33] Speaker 04: Do you need Nassar to win? [00:29:35] Speaker 04: No. [00:29:35] Speaker 06: Well, and that, I think, is the ultimate point here, is that whether you apply to fight for causation standard of Nassar or, I guess, a mixed motive causation theory, some courts would recognize Nassar that in either event, there's nothing here that supports or raises an inference of retaliation by Mr. Leroy. [00:29:56] Speaker 04: And then I thought I had another legal problem, and that was the district court [00:30:01] Speaker 04: I said that with respect to the reprimand in the unprofessional conduct, that that didn't matter. [00:30:07] Speaker 04: It was issued by this, I forget the acronym, but some kind of committee. [00:30:11] Speaker 04: And so it doesn't matter. [00:30:13] Speaker 04: Mr. Leroy didn't issue it. [00:30:16] Speaker 04: And that seemed to me pretty clear legal error under the stop decision from the Supreme Court. [00:30:22] Speaker 04: The fact that someone higher up made the decision doesn't mean we ignore whether the person feeding all the information to that decision maker was the one who had a discriminatory motive. [00:30:32] Speaker 04: And so that seemed like plain legal error to me. [00:30:34] Speaker 04: What do you have? [00:30:35] Speaker 06: I don't think so, Your Honor, for a couple of reasons. [00:30:39] Speaker 06: One, as you suggested in your question, Stobb presumes that there has to be some retaliatory animus or discriminatory animus by the person who initiates what's an ultimate employment action. [00:30:53] Speaker 06: It's not that Stodd creates almost like a safe harbor that as long as you can point to somebody else in the process, then I'm relieved of showing that there's any kind of animus that was at play anywhere in the decision. [00:31:06] Speaker 06: And with respect to factually, in this case, distinguishing it from Stodd is that Mr. Leroy here, and it's undisputed, he didn't have, obviously, the authority that Mr. Mary [00:31:18] Speaker 06: an adverse action panel did to impose discipline, but he doesn't recommend any particular discipline. [00:31:25] Speaker 06: He simply refers the matter to the panel to look into and determine whether discipline is appropriate. [00:31:32] Speaker 04: What source of information did they have in making that decision other than his input? [00:31:37] Speaker 06: They had – and you'll see this in the declaration that Mr. LeRoy submitted. [00:31:43] Speaker 06: The panel asked him if there were persons who were present or witnessed the incident and to collect statements if there were such persons. [00:31:53] Speaker 06: So if you look in the record, JA 150 to 150 – And do these committees usually do that? [00:31:56] Speaker 04: They would have gotten – do we know that they wouldn't talk to other people, or would they ordinarily do that? [00:32:01] Speaker 06: I don't know – the record doesn't indicate here, and I don't know what the panel's practice would be. [00:32:06] Speaker 06: There's certainly nothing to indicate here that what the panel did was a departure from procedures to have taken in other cases. [00:32:14] Speaker 06: But to finish the answer to your question, there were statements that were submitted by three other employees who were present during this meeting who described the incident in similar terms. [00:32:27] Speaker 03: There's a range of descriptions. [00:32:29] Speaker 03: I guess the point is, I don't think. [00:32:32] Speaker 03: Wouldn't that be classic? [00:32:33] Speaker 03: case of something that would go to a jury, if you have a range of different descriptions, hers, coworkers, you know, and it's kind of from very calm and decorous to rather rude and abrupt. [00:32:45] Speaker 06: Well, let me take a step back in getting to the answer to that question. [00:32:49] Speaker 06: First of all, we've argued in a district court found that the reprimand from a matter of discrimination was not an adverse employment action. [00:32:57] Speaker 06: It didn't carry any loss of benefits or pay. [00:32:59] Speaker 03: It stays in the record though, no? [00:33:02] Speaker 06: Pardon? [00:33:02] Speaker 03: It remains in the employee's record for some period of time? [00:33:04] Speaker 06: It remained in the record for a period of, I believe, one year, maybe two years. [00:33:07] Speaker 03: Two, yeah. [00:33:08] Speaker 06: But it didn't serve any basis for further discipline against Ms. [00:33:12] Speaker 06: Walker, and under the court's [00:33:14] Speaker 06: the court's decision in Balak, which had essentially a similar reprimand and tone, and also one that would remain in the record as a possibility for further discipline, the court held this is not rising level of an adverse employment action. [00:33:28] Speaker 06: So we don't think with respect to race discrimination claim, with respect to reprimand, we even get to the issue, or the court needs to get to the issue of- I thought she wasn't arguing that. [00:33:38] Speaker 04: I thought she was just arguing it for the retaliation claim, where you have the lesser standard. [00:33:42] Speaker 06: Well, I'll address you. [00:33:45] Speaker 06: My understanding is she's pressing the reprimand claim both for race and retaliation. [00:33:49] Speaker 03: But she's not resting only on the reprimand claim, and it seems like, you know, even if you could say, well, that alone isn't an adverse employment action, that, you know, it's a conjury of facts that she's relying on, and surely it could fit in with a cluster of facts. [00:34:04] Speaker 06: Well, she's asserted for [00:34:06] Speaker 06: discrete actions that she says are underlie or upon which she faces both discrimination or retaliation claims. [00:34:13] Speaker 06: The reprimand is one of those, the wall charges. [00:34:16] Speaker 03: Right, and in typical lawyerly fashion, she would roll them all together and say, this counts, and you would separate them out and say, not this, not this, not this, not this. [00:34:22] Speaker 06: And the formulation Ms. [00:34:23] Speaker 06: Walker uses is that there's this pattern of behavior. [00:34:29] Speaker 06: Yeah. [00:34:29] Speaker 06: I'll answer them all. [00:34:34] Speaker 04: I'm not particular. [00:34:36] Speaker 04: My ancestors pronounced it your way, so you're fine. [00:34:39] Speaker 06: There's not a pattern here of antagonism or discrimination or retaliation against Ms. [00:34:45] Speaker 06: Walker. [00:34:46] Speaker 06: Mr. Leroy, the record shows, not only in the areas of leave, but also in her evaluation and performance awards, [00:34:53] Speaker 06: accorded her favorable treatment, ultimately fair treatment. [00:34:56] Speaker 06: We will call it favorable treatment in the context of the Title VII case. [00:34:59] Speaker 06: He approved multiple leave requests, both before the leave restriction letter and in the period after that. [00:35:07] Speaker 06: He nominated her, wrote her up for performance awards over, of course, the relevant period of time in this case. [00:35:14] Speaker 06: He gave her the evaluation in 2009. [00:35:20] Speaker 06: She's excellent. [00:35:21] Speaker 06: So there's not this uninterrupted pattern. [00:35:24] Speaker 06: There is no pattern, but there's sort of not this uninterrupted conduct. [00:35:27] Speaker 04: What about the, there was one incident where she tried to invoke her, the right that was granted to her to take intermittent ephemeral leave, and she left the message, I need to be with my mother today. [00:35:41] Speaker 04: I mean, it seems like horrific circumstances that she was dealing with. [00:35:46] Speaker 04: And his explanation was, I wasn't sure if that was sick leave or not. [00:35:51] Speaker 04: I don't know how on earth you couldn't understand that as her invocation of her FMLA leave and the fact that [00:35:57] Speaker 04: He came up with this sort of cockamamie. [00:35:59] Speaker 04: Well, I need to be with my mother. [00:36:00] Speaker 04: Is that because you're sick? [00:36:02] Speaker 04: I mean, she's an adult woman. [00:36:03] Speaker 04: She doesn't need to be with her mother when she's sick. [00:36:05] Speaker 04: And didn't fix it afterwards, even when he knew the facts. [00:36:09] Speaker 04: Does that not suggest some hostility either to her on the basis of race or because of her being a troublemaking employee who files EEO complaints? [00:36:21] Speaker 06: No, Your Honor. [00:36:21] Speaker 06: And here's why. [00:36:24] Speaker 06: record would show is that on the day, I believe it's February 12th, 09, she emails Mr. Leroy and says in the title FMLA sick leave, one-liner, I'm out today, I'm attending to my own. [00:36:38] Speaker 06: Out on sick leave, I'm attending to my mother. [00:36:40] Speaker 06: So that in and of itself is not consistent with the lead restriction letter. [00:36:45] Speaker 06: That's undisputed. [00:36:46] Speaker 06: Both Ms. [00:36:46] Speaker 06: Walker and her attorney in the [00:36:48] Speaker 06: grievance submission that he provided to DHS admit that she did not comply with what, as they put it, the strict terms of... Although counsel today says yes, she did, because if it's unexpected, all it needs to be is notified later within a reasonable time. [00:37:01] Speaker 03: And you're saying she's waived that? [00:37:03] Speaker 06: No, what I'm saying is there was no notification to Mr. Leroy within a reasonable period [00:37:07] Speaker 03: But she called and emailed. [00:37:10] Speaker 06: She doesn't explain the circumstances at all other than that she is tending to her mother and that she's taken sick leave. [00:37:16] Speaker 04: The next thing she does is when she returns... She's in FMLA, has she been authorized for FMLA sick leave for herself as opposed to FMLA leave for taking care of her sick mother? [00:37:26] Speaker 06: She, her FMLA had to deal with her mother. [00:37:28] Speaker 06: Her sick mother. [00:37:29] Speaker 06: Right. [00:37:30] Speaker 04: Right, and so I have FMLA for my sick mother to take care of her, and I said FMLA sick leave, the one I've already been authorized for, and I need to take care of my mother. [00:37:39] Speaker 04: It seems to me it requires an awful lot of straining to go, huh, I wonder if this is FMLA sick leave to take care of her mother. [00:37:46] Speaker 06: But then when Ms. [00:37:48] Speaker 06: Walker returns the following day, she submits a WebTA request, an automated leave request for annual leave. [00:37:54] Speaker 06: So there's this inconsistency already between what she's... Was it inconsistent or was she beginning to run out of her FMLA leave at that point? [00:38:02] Speaker 06: If you look at the pay period time sheet, and it's in the record, it shows she has sufficient both annual [00:38:08] Speaker 04: Although this was, you know, as happens in these situations, it was the day her mother had a knee. [00:38:14] Speaker 04: She may well have wanted an annual leave after that to recover from that day. [00:38:17] Speaker 04: Quite frankly, I might want it after that. [00:38:19] Speaker 06: Well, I mean, and this is not the diminish or discount in any way, the circumstances that Ms. [00:38:23] Speaker 06: Walker may have found her in. [00:38:24] Speaker 06: The issue here ultimately was what Mr. Leroy understood, what are circumstances of the absence or the leave, and whether it was consistent in his mind with the leave restriction. [00:38:35] Speaker 04: Is there any evidence in the record about whether, one way or the other, about whether Mr. Leroy imposed sort of similarly scrutinizing pattern, this requirement of strict adherence to leave request policies on other employees? [00:38:52] Speaker 04: No, Your Honor. [00:38:53] Speaker 04: In fact, I think [00:38:53] Speaker 04: Either way. [00:38:56] Speaker 06: If I recall, I think this was an unprecedented situation, at least in the bond management unit. [00:39:01] Speaker 06: It wasn't a large unit. [00:39:02] Speaker 06: It had three or four employees over the greater part of the relevant period. [00:39:06] Speaker 06: So he didn't have to deal with this with anyone else, I believe is what his declaration says. [00:39:13] Speaker 06: But to go back to this AWOL charge in February of 2009, [00:39:19] Speaker 06: She doesn't make or doesn't explain to Mr. Leroy. [00:39:23] Speaker 06: In fact, there's no indication that she ever explains to Mr. Leroy the exact circumstances of why she needs leave, not that whether it was clarifying whether it was sick leave or annual leave, whether it really was FMLA. [00:39:37] Speaker 06: Ms. [00:39:37] Speaker 06: Leroy informs her that after she submits the annual lead request that this isn't consistent with the lead restriction letter. [00:39:44] Speaker 06: I'm going to have to charge you AWOL for this day. [00:39:47] Speaker 06: Ms. [00:39:48] Speaker 06: Walker in response doesn't explain anything other than thank you very much, have a nice day. [00:39:54] Speaker 06: met perhaps sarcastically, but she doesn't engage with him or try to explain to him what the circumstances were. [00:40:00] Speaker 06: She doesn't do that until June of 2009, so three, four months later. [00:40:04] Speaker 06: And she does it in the context of some type of EEO affidavit where she actually explains for the first time these really dire circumstances. [00:40:11] Speaker 06: It's not even clear that that affidavit made it to Mr. Leroy at that time or at any time. [00:40:15] Speaker 06: That's not indicated in the record. [00:40:17] Speaker 06: But our point is that there wasn't, under no circumstances, under no speed of facts, there wasn't reasonable notice to Mr. Leroy under circumstances as the leave restriction letter required. [00:40:28] Speaker 04: Okay, thank you. [00:40:29] Speaker 04: Any other questions? [00:40:31] Speaker 04: Thank you. [00:40:32] Speaker 06: Thank you, Your Honor. [00:40:38] Speaker 04: We'll give you two minutes. [00:40:43] Speaker 05: I have confirmed from my brief that in George versus Levitt, this court said that usually pretext alone is sufficient. [00:40:52] Speaker 01: But also, since we are... In fact, there was a lot present in George that's not present here. [00:40:58] Speaker 03: Wasn't there the case go back where you came from, a woman from Trinidad? [00:41:01] Speaker 03: I mean, there was some actual direct evidence. [00:41:03] Speaker 03: But I think there may be some, we may be talking past one another a little bit in the sense that [00:41:10] Speaker 03: Pretext is sometimes used as a shorthand for showing that the employer's proffered legitimate nondiscriminatory reason is false, but it's sometimes used to describe the pair of inquiries, which is that the employer's proffered nondiscriminatory reason is false and is a pretext for discrimination. [00:41:29] Speaker 03: The real reason is discrimination. [00:41:30] Speaker 03: So I think you're understanding pretext to be doing both jobs, [00:41:36] Speaker 03: both showing it to be false and that the real reason is discrimination. [00:41:39] Speaker 03: And I guess what I'm saying is that in order to be able to use it that way, I think you have to show both things. [00:41:47] Speaker 03: Basis for an inference, both that what they did was not the real, what they proffered was not the real reason and that the real reason was race. [00:41:57] Speaker 03: And I think that is the ultimate burden. [00:41:59] Speaker 03: It's very clear in our cases. [00:42:01] Speaker 05: And you can show that the real reason is race by showing [00:42:08] Speaker 05: that a decision-maker lied and a jury can infer that they're lying because they're hovering up something that's illegal in this case. [00:42:19] Speaker 04: Why would we have said usually or ordinarily in those cases then? [00:42:22] Speaker 04: I'm sorry? [00:42:23] Speaker 04: We always prefaced it with usually pretext is enough, ordinarily it's enough. [00:42:29] Speaker 04: When wouldn't it be enough? [00:42:31] Speaker 05: When there's another reason that's true, maybe that's also illegal, but not the reason that they proffered. [00:42:41] Speaker 04: Was she the only woman in the unit? [00:42:44] Speaker 05: She is. [00:42:45] Speaker 05: But there was no reason to think that that had anything to do with it. [00:42:52] Speaker 05: There's also the fact that he's inexplicably callous with regard to her mother. [00:42:58] Speaker 05: And there's the business impact analysis assignment. [00:43:01] Speaker 04: What do you mean inexplicably callous with respect to her mother? [00:43:04] Speaker 05: What evidence is that? [00:43:05] Speaker 05: I mean, the situation that her mother's in, it's just inhumane the way he responds to that, that he doesn't [00:43:13] Speaker 04: allow her to, you know, he... Well, you just heard the description from the attorneys for the government as to that sequence of events and when he, that he didn't even learn about the very unfortunate circumstances until way later. [00:43:31] Speaker 05: Do you... Why does he assume that the herniated... Okay, but then I don't think you can say someone's being [00:43:38] Speaker 04: being very insensitive if they aren't informed of the circumstances. [00:43:43] Speaker 04: I mean, you had pretty strong words about him being callous. [00:43:47] Speaker 04: But if you didn't know the circumstances, you can't, my answer to your description of him is callous. [00:43:51] Speaker 04: You can't say it's callous because he didn't inquire. [00:43:55] Speaker 05: He knew that her mother had dementia. [00:43:57] Speaker 05: Yes. [00:43:58] Speaker 01: He also knew that she had taken time off because of car trouble and traffic, and he had no reason to assume that her mother was in dire straits at that point. [00:44:08] Speaker 05: Well, she said, I need to attend to mother today. [00:44:11] Speaker 01: And that's all she said, right? [00:44:12] Speaker 01: Yes. [00:44:13] Speaker 01: Okay, thank you. [00:44:13] Speaker 05: Yes, and there was not time for her to explain in the circumstances. [00:44:17] Speaker 03: You said she was the only woman, it's not material, I guess, because you're bringing a racial discrimination claim, but there was, it wasn't Teresa Klein, the other, the fourth employee, there were two African-American men, and then there was a... There's an Allen Klein. [00:44:29] Speaker 03: Well, there's also, I think that fourth employee in her unit was Teresa Klein, who was the, I think that's the employee who got the highest employment rating during the cycle when Ms. [00:44:39] Speaker 03: Walker complained that she got rated [00:44:43] Speaker 03: inordinately low. [00:44:44] Speaker 05: I don't believe that's correct. [00:44:45] Speaker 05: I believe she's the only African-American female and I understand in my brief I may have written it. [00:44:53] Speaker 01: You twice, you're briefed twice, that she was the only African-American employee. [00:44:58] Speaker 01: You may brief her after your error was called to your attention by the appellee brief. [00:45:10] Speaker 01: It's not just an inadvertence one time, it's twice that you were thinking this thing directly. [00:45:19] Speaker 05: But it still is inadvertence, and I apologize for that. [00:45:22] Speaker 03: I'm just looking at 599. [00:45:26] Speaker 03: This is a declaration of Raymond Batta. [00:45:37] Speaker 03: Yeah, I don't want to go off on a sidetrack, but one employee, Teresa Klein, was rated outstanding. [00:45:44] Speaker 03: Two other employees, Carl Alberton and Felderas Talley, were rated as achieving it. [00:45:49] Speaker 03: So I assume Teresa Klein is a woman. [00:45:50] Speaker 03: Anyway. [00:45:55] Speaker 05: Is that a different? [00:45:57] Speaker 03: It might be a different period. [00:46:00] Speaker 03: It's sad. [00:46:02] Speaker 01: Well, there are two clines. [00:46:05] Speaker 01: Two clines. [00:46:07] Speaker 01: I think that was a guy. [00:46:10] Speaker 03: There are two clines. [00:46:12] Speaker 03: There's an Alan Klein. [00:46:13] Speaker 03: I'm sorry. [00:46:16] Speaker 03: We have two clines. [00:46:17] Speaker 03: Or maybe someone here is making a mistake anyway. [00:46:19] Speaker 03: That's where my confusion is coming from. [00:46:25] Speaker 05: I apologize, I'm not clear on the other subordinates because I did focus on the evidence of pretext. [00:46:35] Speaker 05: If I can just say, there were two other times where Mr. Laura's credibility comes into issue. [00:46:42] Speaker 05: And that's with the business impact analysis. [00:46:45] Speaker 05: He's telling her, you've got to get it in on time, you've got to get it in early. [00:46:48] Speaker 05: No, I can't look at it. [00:46:49] Speaker 05: No, I can't look at it. [00:46:50] Speaker 05: So he creates a situation. [00:46:55] Speaker 05: The workers comp situation. [00:46:56] Speaker 05: He attaches a note when no one even asks him, because he's not our supervisor anymore. [00:47:01] Speaker 05: that he's never seen any evidence of this, but at his deposition, he testified that he saw medical documentation that she had stress-induced asthma from war. [00:47:11] Speaker 01: Did you produce the note he wrote that supposedly said he had not seen any evidence? [00:47:16] Speaker 05: Yes, the note is in the documents. [00:47:19] Speaker 05: Do you want to know where it is? [00:47:20] Speaker 01: I can... Yeah. [00:47:24] Speaker 01: I didn't find it, but that's perfectly possible, because then I didn't find it. [00:47:30] Speaker 05: 471. [00:47:37] Speaker 04: No, that's just a transcript. [00:47:40] Speaker 01: Yeah, that's a transcript with a reference. [00:47:42] Speaker 04: Uh-oh, wait, wait, wait. [00:47:46] Speaker 05: Is it 454? [00:47:49] Speaker 05: I do have it. [00:47:49] Speaker 05: Oh, my God. [00:47:51] Speaker 05: I thought it was. [00:47:53] Speaker 01: If it's in here, I didn't know. [00:47:54] Speaker 01: It is in there. [00:47:57] Speaker 03: You can send a letter. [00:47:58] Speaker 01: Send a letter. [00:47:59] Speaker 01: I don't want to delay things over. [00:48:03] Speaker 01: What? [00:48:03] Speaker 05: Are you talking about where? [00:48:04] Speaker 05: It's 408. [00:48:05] Speaker 01: 408. [00:48:17] Speaker 05: Okay, thank you. [00:48:18] Speaker 05: And he writes the wrong year on that, just so you know, that was 2010, and he writes that it was 2009. [00:48:22] Speaker 05: Got it. [00:48:23] Speaker 01: That happened in January. [00:48:26] Speaker 05: Yeah. [00:48:28] Speaker 00: Okay, thank you. [00:48:29] Speaker 05: Thank you very much.