[00:00:00] Speaker 04:
case number fourteen fifty forty seven jimmy e chambers account for the city of matthews burwell mister nard for the account mister schwape for the appellee morning your honors uh... we're here today because uh... the department of health and human services has put forth various reasons at different times for why they chose not to promote

[00:00:29] Speaker 04:
Janine Chambers, an African American and blind employee, while promoting other employees.

[00:00:36] Speaker 04:
At first, Ms.

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Chambers was told, you deserve a promotion, we really want to promote you, but there's a lack of funds.

[00:00:45] Speaker 01:
When in... Well, there was a lack of position, wasn't there?

[00:00:48] Speaker 04:
There was a lack of a position because nobody created the position.

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And so the question becomes, just as in Evans versus Sebelius and Coens versus Shalala, why didn't they create this position to promote Ms.

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Chambers into when they were out creating other positions that cost far more and affected the budget far more?

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And then when we show that, that the money answer was sort of

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you know, just ridiculous.

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How do you show that?

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I don't recall you showing that.

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We show that by showing that at the very same time there were approved three GS-14s were approved to be promoted to the GS-15.

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The problem is that your apples and oranges, right, they approved.

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You're not suggesting that because budget was invoked as a reason not to create a vacancy for her that they couldn't create any vacancies for anyone.

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No, I'm not suggesting.

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Your claim has to rest on the fact, if it is a fact, that they created vacancies for others who were similarly situated, right?

[00:01:57] Speaker 04:
No, they don't have to be similarly situated.

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They don't.

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Just as in Evans versus Sebelius, we're not offering that to prove disparate treatment.

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We're offering that to show pretext.

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They give budget as a reason, but there was the budget.

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The real answer is they didn't want to spend the funds that they had on a promotion for

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Can I ask, the other positions you're talking about, were they new positions that were created or were they promotions into existing positions?

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This is the way HHS does it.

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They have three GS-11s acting division directors.

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They create three new positions, which are, I'm sorry, three GS-14 acting division directors.

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They create three new GS-15 division director positions.

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They restrict it to ACF.

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The three people who were the 14s apply.

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They are the only ones to apply.

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All three of them get the promotion to the 15.

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They did the same exact thing during this litigation.

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They created the GS-11 for Ms.

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Chambers.

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They restricted it to ACF.

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There's only Ms.

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Chambers who's qualified in ACF as a Section 508 coordinator.

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She's the only one who's qualified.

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She gets the position.

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That's the way they promote.

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So all three of the GS-15 positions didn't exist before?

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They were newly created positions?

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Right, they were newly created, but it wasn't a new slot for them because they knew they were going to put those three 14s in.

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So the increase in funds is still about $22,000.

[00:03:30] Speaker 00:
When you said in answer to Judge Griffith that similarly situated doesn't matter, I take it, similarly situated matters for purposes of determining whether there's discrimination.

[00:03:39] Speaker 04:
No, it matters, but it's not required.

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This court held that in Stella versus Manetta and George versus Levitt that you don't need to show someone similarly situated.

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Also Tchaikovsky versus Manetta, where we're not offering the evidence of other people being promoted to show, you know, the- You're not showing disparate treatment.

[00:04:03] Speaker 01:
You're arguing that the budgetary factor was a pretext.

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Yes, it was a pretext.

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Why cannot a budget be relevant and nevertheless certain priorities be established?

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There was a move to 14 and 15, or much higher rated people, were they not?

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Yeah, sure, there were 14s and 15s.

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But that wasn't the reason that they gave her at first.

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Then they switched it to not a priority.

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But when you think about it, not a priority is sort of like saying, because I said so.

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It's not a reason.

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It's just the fact that it wasn't a priority.

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The question for a jury to answer.

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You're certainly not using the fact that she was subsequently promoted to an 11.

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as evidence that there was discrimination initially, right?

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That doesn't make any sense.

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No, I think the evidence that she was promoted to 11 and the way they did it is the same way they promoted the 15s to the 14s, and it just goes to show that this is the way that HHS promotes people.

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to try to hang for the appellate to try to hang their hats on the technicality that there was no vacancy.

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You know, the way they create vacancies is they create vacancies for people they want to promote.

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Well, there's the pretext.

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And Mr. Curtis is saying all along.

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The pretext is what?

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The pretext is Mr. Curtis is saying, for five years, I've been asking for a promotion for you.

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For five years, I've submitted paperwork.

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He specifically says, I've submitted paperwork.

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There is no paperwork.

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In fact.

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Did you sought the paperwork?

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Did you ask?

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We did seek the paperwork.

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When?

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Well, in Discovery and in our opposition, we say point blank.

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In Discovery, you asked for the paperwork?

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In discovery, you sought the paperwork.

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You asked for it.

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I'm not sure what the... It's not in the record, but I recall.

[00:06:00] Speaker 03:
Well, that's kind of important, isn't it?

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It is important, but it's also important that in the opposition, we say, look, no paperwork pretext.

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They never come back and say, yes, there is paperwork.

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They never even allege, let alone produce, any paperwork.

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And Jason Donaldson, the person in the front office, says Mr. Curtis never said that Janine Chambers wanted a promotion.

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Now, I ask you, even if... Oh, she never said to me.

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testified, she never said it to me.

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Right, and that Mr. Curtis never asked me for a promotion for a 508 coordinator or for Janine Chambers.

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That, if he's believed, if all the people are believed, you have to ask yourself, what kind of advocacy was he doing to try to get a vacancy created for Janine Chambers?

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I thought the testimony was that, in fact,

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Curtis had sought for administrative support.

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He didn't ask for her name, but that would be fine.

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You're not supposed to ask for her name, are you?

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It's a position.

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If you believe defendants' witnesses, then yes, he asked for an administrative support position.

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But if you are a supervisor advocating for a position for your employee to be promoted to, when you advocate, you give specifics.

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You say, look, we need a GS11 Section 508 coordinator.

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What's the adverse employment decision here?

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The fact that Curtis

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I mean, Curtis said he didn't have the power to create the position, right?

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He had the power to advocate for a position.

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He had the power to get his management on board with, yes, it's a priority to upgrade our 508 coordinator when every other agency, all the small agencies in HHS... So your claim turns on whether Curtis advocated for the position?

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My claim turns...

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Not only that, Curtis didn't advocate for the position, but he said he did.

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But the adverse employment action has to be the failure to create the position, not the failure to advocate for the position.

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Right, you have to... But we've shown enough evidence to create an inference that this is how they create positions.

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People advocate, they find champions.

[00:08:14] Speaker 00:
Right, I'm asking you, but your claim, the adverse employment action about which you complain, and there's a legal question as to whether it's an adverse employment action, but the adverse employment action about which you complain is the failure to create a position.

[00:08:27] Speaker 00:
The failure to advocate for the creation of position is just evidence.

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Yes, because we submit that if the position had been created and restricted to ACF, just as those 15s were... If Curtis had advocated, how do you know the position would have been created?

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We don't know that for a fact.

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A jury has to decide that.

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These are jury issues.

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The question is, how do we know if there's no discrimination, the person would be promoted in any promotion case?

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You don't know that.

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You can only infer it from the evidence.

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So for our decisions and Supreme Court decisions, it's not the case that just because you can show pretext, that means there's discrimination.

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In other words, you have to show

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You can't just stop at pretext and say, I get to go to a jury because there's evidence of pretext.

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There has to be evidence from which a reasonable fact finder can conclude that there was discrimination.

[00:09:19] Speaker 04:
There doesn't have to be.

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That a reasonable fact finder, there has to be evidence from her.

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The Supreme Court has said in Reeves that in the usual case, pretext is enough.

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But that's because pretext might tell you that there's discrimination.

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Right.

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I mean, it's not the case that just because you show pretext, you automatically get to a jury.

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It has to be pretext that would tend to show discrimination.

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Yes.

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OK.

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Yes, I agree.

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And I've looked at a recent case that you authored that indicated that.

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But what I'm trying to say is that it's not just the pretext.

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There's also dishonesty about this advocacy, this giving paperwork.

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Why is it pretext?

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correct that the supervisor said he advocated a new position for your client and he didn't.

[00:10:12] Speaker 01:
Why is that a pretext?

[00:10:14] Speaker 04:
Well, it's a lie about a material fact.

[00:10:17] Speaker 01:
Well, is that necessarily a pretext?

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I think, as the Supreme Court said in Reeves, a jury can infer from dishonesty about a material fact.

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Even if it's not the reason, dishonesty about a material fact shows guilt.

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I mean, it's right in the Reeves decision.

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It's the second sentence of the two sentences.

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It could be dishonesty without being a pretext.

[00:11:04] Speaker 01:
It's dishonesty, but it's not a pretext.

[00:11:06] Speaker 04:
Well, but you also have the lack of funds was given as a reason.

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So as to that, I'm not understanding the pretext about that.

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Because what's the disconnect between saying there's no funds and it wasn't a priority?

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Because it's always the case that you have priorities within funds.

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Forget shifting reasons.

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I shouldn't have framed it that way.

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They say lack of funds.

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We show there are funds.

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They don't exactly shift completely to something.

[00:11:34] Speaker 03:
There are funds for what?

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There are funds if they want to spend them.

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They didn't want to spend them on Janine Chambers.

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The question, as in Cohn's versus Shalala, is why?

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They didn't want to spend them on creating a new position.

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And they've offered business reasons for not.

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No, they haven't.

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What's the reason that they don't want to create a GS-11 508 coordinator when every other 508 coordinator in their agency, for tinier agencies, are 12s, 13s, and 14s?

[00:12:03] Speaker 04:
What's the reason?

[00:12:04] Speaker 03:
Typically the questions go this way, okay?

[00:12:06] Speaker 03:
Typically the questions go this way.

[00:12:07] Speaker 03:
Okay, but I don't think they offer a reason.

[00:12:10] Speaker 03:
They offer the reasons for why they spent their, why they allocated their budget the way they did, why they upgraded certain positions, right?

[00:12:17] Speaker 04:
No, I don't think they did.

[00:12:19] Speaker 04:
I don't think they said why the 508 coordinator was not a priority.

[00:12:23] Speaker 04:
They've explained why they did the other, why they made the other decisions.

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They have not explained why putting a 508 coordinator at a GS-11 was not important when every other agency had a higher graded.

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She was a nine.

[00:12:38] Speaker 04:
Thank you.

[00:12:40] Speaker 03:
Thank you very much.

[00:12:48] Speaker 02:
May it please the Court, Alexander Shoaibi for appellee.

[00:12:53] Speaker 02:
Your Honors, two major points in this case.

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One, there was no adverse action here.

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Under the law, there's no adverse action.

[00:13:01] Speaker 02:
So, can I just ask you a question about that?

[00:13:04] Speaker 00:
Suppose the plaintiff says, what I'm complaining about is a failure to create a new position.

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Your employer, take it out of the government context, just say it's a private sector employer, and the way they divvy up their workforce is they make every pay grade a new position.

[00:13:19] Speaker 00:
So every promotion has to be creation of a new position.

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And the complaint is, you didn't create a new position for me, i.e.

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you didn't promote me.

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There's all kinds of other people.

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that are not part of the protected class that you did promote by creating a new position?

[00:13:33] Speaker 00:
Is it actually the case that you would say, well, there's no adverse employment action because there's no creation of a new position, ergo you don't even get past the starting block?

[00:13:40] Speaker 00:
Even if you could show, the plaintiff could show, all kinds of non-minority applicants had positions created for them, but I didn't have a position created for me.

[00:13:50] Speaker 02:
Two responses.

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First of all, there's no case law that indicates that not creating a position for somebody is an adverse action.

[00:14:00] Speaker 02:
But how could that not be a claim?

[00:14:02] Speaker 02:
My response to your second point is, that's not the case here.

[00:14:06] Speaker 00:
Put aside this case.

[00:14:07] Speaker 00:
I get the point that you think that's not this case.

[00:14:09] Speaker 01:
That is not a good answer to a hypothetical.

[00:14:12] Speaker 00:
My question is, as a matter of law, you're taking the position that non-creation of a new position is, as a matter of law, not an adverse employment action, and therefore you don't get past the starting block.

[00:14:22] Speaker 00:
And my question is, how can that be right?

[00:14:24] Speaker 00:
Because there have to be situations in which somebody has a viable claim of discrimination predicated on non-creation of a new position, where they say, you didn't create a new position for me, you created a new position for 49 other people that are just like me, who wanted a promotion,

[00:14:38] Speaker 00:
They happen not to be minorities.

[00:14:40] Speaker 00:
I happen to be a minority.

[00:14:41] Speaker 00:
You created a position for all of them.

[00:14:43] Speaker 00:
You didn't create a position for me.

[00:14:44] Speaker 00:
Is it actually the case that the employer gets to say, non-creation of a new position is just not an adverse employment action?

[00:14:50] Speaker 00:
I'm sorry you don't get past the starting block.

[00:14:52] Speaker 02:
You're a GS9, okay?

[00:14:54] Speaker 02:
and every other GS9 that wants a GS11 has to have a GS11 created for them.

[00:14:59] Speaker 02:
There are no GS11s in creation.

[00:15:01] Speaker 02:
And all these non-minority-sided people that are GS9s say, would you please create a GS11 position for me?

[00:15:08] Speaker 02:
And they say, fine, we're going to do that.

[00:15:10] Speaker 02:
And then she says, create one for me.

[00:15:11] Speaker 02:
And they say, no, we're not going to do that.

[00:15:13] Speaker 02:
In that hypothetical, I think they'd have a better argument.

[00:15:17] Speaker 01:
Let me give you another hypothetical.

[00:15:19] Speaker 01:
Suppose the plaintiff asserts that I asked

[00:15:24] Speaker 01:
my supervisor to create a higher grade position for my job.

[00:15:30] Speaker 01:
And my supervisor said, well, no, I don't want to do that because you're blind and you're black.

[00:15:39] Speaker 02:
That'd be a great case, but that's discriminatory animus, which there's not a shred of here.

[00:15:43] Speaker 01:
But under your theory, since there was no job, as a matter of, there's no adverse action.

[00:15:53] Speaker 01:
I'm saying that— You would have conceived that your position can't be right as a matter of principle from both Judge Srinivasan's question and my question.

[00:16:04] Speaker 01:
If my question is clear, the Supervisor said, yeah, we would create a new job, but we're not going to do it for you because you're black and white.

[00:16:14] Speaker 01:
It's an adverse action.

[00:16:16] Speaker 02:
I'm sorry, Your Honor, I'm not going to go that far because I don't think there's any case law that says that not creating a position is an adverse action.

[00:16:21] Speaker 02:
I'm going to say that's clearly discriminatory animus.

[00:16:24] Speaker 00:
But discriminatory animus doesn't matter if you don't have an adverse action because you have to have an adverse action just to get out of the starting game.

[00:16:31] Speaker 00:
So I think the point of these questions is it's hard to stomach the proposition that any time

[00:16:37] Speaker 00:
a claim is predicated on non-creation of a new position, as a matter of law, you don't get past the starting block, because there are hypotheticals in which, boy, that sounds like something that Title VII should offer a recovery for.

[00:16:49] Speaker 02:
But it's a slippery slope, Your Honor.

[00:16:50] Speaker 02:
I mean, to open the possibility.

[00:16:52] Speaker 00:
Well, it may be a slippery slope, but it's a slippery slope that at least fences in claims that ought to be... Are you saying that those claims shouldn't go forward?

[00:17:02] Speaker 02:
I'm saying that to say that any time that an employee says, I should have a position created... No, no, I'm saying that the claim, there's two claims before you, the one that I outlined and the one that Judge Silverman outlined.

[00:17:17] Speaker 00:
Are you saying that from the government's perspective, those claims don't go forward because there's no adverse employment action?

[00:17:26] Speaker 02:
I'm saying that in the case that you suggest where the only way that a person can get the promotion to a GS-11 is by the creation of a position and only whites are getting it, whites beside are getting it, and a black person who's blind doesn't get it, I think that that's a better argument.

[00:17:41] Speaker 02:
I'm not going to, because again, I can't create, I'm not going to create an argument.

[00:17:46] Speaker 00:
It might be a better argument because it's more sympathetic, but based on your legal principle, which is that you need

[00:17:52] Speaker 00:
to do to elect something other than creation of a new position.

[00:17:55] Speaker 00:
Otherwise, as a matter of law, your claim fails.

[00:17:58] Speaker 00:
How can that person get past the starting gate?

[00:18:01] Speaker 00:
So there must be some claims, either my hypothetical or Judge Silverman's hypothetical.

[00:18:08] Speaker 00:
where you get past the starting gate even though your claim is predicated on non-creation of a new position.

[00:18:13] Speaker 00:
Now there may be all kinds of arguments that say, look, creation of a new position almost always is non-discriminatory because there's all kinds of good reasons why the employer doesn't want to create a new position.

[00:18:24] Speaker 00:
So you don't get past the finish line.

[00:18:26] Speaker 00:
But to say that you don't even get past the starting gate

[00:18:28] Speaker 00:
Merely because your claim is predicated on non-creation of a new position, when there might be all kinds of situations in which non-creation of a new position is discriminatory, is a difficult proposition to stomach.

[00:18:39] Speaker 02:
I understand the argument.

[00:18:40] Speaker 02:
I think it would be a very, very narrowly defined set of circumstances, perhaps like the ones Judge Silverin and you bring forward, but nothing, and again, I'm here arguing this case, nothing at all like this case.

[00:18:51] Speaker 02:
In this case, we're talking about

[00:18:52] Speaker 00:
But we have to decide – I guess we have to decide on what ground to rule.

[00:18:56] Speaker 00:
And if we decide on the ground that you put forward first, which is that non-creation of a new position as a matter of law is not an adverse employment action, then I don't know how the claims that come forward someday – maybe they'll never come forward – but someday someone's going to make the claim that I outlined or that Judge Silberman outlined, and then we would have a decision that says that claim doesn't get out of the starting gate.

[00:19:17] Speaker 02:
Well, the good news for this court, I believe, based on what you're saying is that you don't have to decide based on that alone, because there is... Well, that's what you've asked us to do.

[00:19:26] Speaker 03:
You've asked us to adopt the categorical rule, and Donald Douglas and all of Title VII says stay away from that.

[00:19:33] Speaker 03:
I think that's what you're seeing discomfort with.

[00:19:35] Speaker 03:
It's the government's argument that asking us to adopt a categorical rule in this situation.

[00:19:40] Speaker 02:
Well, the government's argument again is twofold, and I understand... Maybe you better get to the second part of it, yeah.

[00:19:46] Speaker 03:
I'm sorry.

[00:19:46] Speaker 03:
Maybe you better get to the second part of it.

[00:19:48] Speaker 02:
And the second part again is that there is absolutely no evidence of discriminatory animus here.

[00:19:52] Speaker 02:
As far as the arguments raised here, and I think that Your Honor's addressed them exactly the way that I would, which is that you can say that they were shifting reasons, but they're all budget.

[00:20:03] Speaker 02:
They're all based on budget.

[00:20:04] Speaker 02:
After all, an agency has a right to decide how it's going to spend its money, and I was this morning driving in trying to think of an analogy, and the one that I came up with is from a personal level, is if my roof caves in, and I need a new roof, and it costs 15 grand for a new roof,

[00:20:20] Speaker 02:
And then my daughter comes to me and says, well, you just spent $15,000 on a new roof.

[00:20:24] Speaker 02:
Why can't we get $1,000 for a bigger TV?

[00:20:27] Speaker 02:
Because that's not how we're budgeting our money.

[00:20:31] Speaker 02:
It's so far afield, there were no shifting reasons here, clearly was budget the whole time, not to mention the fact that every comparator they use is a 14 and a 15, that in the record, their concessions by the plaintiff, that they do involve different duties, and that there's not a valid comparison between a GS9 or GS11 and a GS14 and a 15.

[00:20:55] Speaker 02:
Again,

[00:21:01] Speaker 02:
And there was a desk order here.

[00:21:03] Speaker 02:
I mean, that's the other important point here, is that she had a GS9 position.

[00:21:09] Speaker 02:
Curtis tried to get her a position.

[00:21:10] Speaker 02:
He didn't specifically say, I want a position for Jean Chambers.

[00:21:13] Speaker 02:
He tried to get a position, which ultimately she didn't, in fact, get.

[00:21:16] Speaker 02:
And the desk order indicated that her job was properly greater than the GS9.

[00:21:21] Speaker 02:
So based on these reasons and based on what we've gone over before, Your Honor, I would ask court to affirm the correct holding of the district court.

[00:21:30] Speaker 02:
If you have no further questions for me.

[00:21:34] Speaker 03:
Thank you.

[00:21:35] Speaker 03:
Go ahead.

[00:21:36] Speaker 03:
We'll give you back a couple minutes.

[00:21:39] Speaker 04:
I just wanted to point out, with regard to the question of whether there's shifting reasons or pretext, shifting reasons

[00:21:48] Speaker 04:
They don't conflict.

[00:21:49] Speaker 04:
They're shifting, but they don't conflict.

[00:21:50] Speaker 04:
They sort of morph.

[00:21:52] Speaker 04:
When you tell your daughter, no, you can't have $1,000 even though we spent $15,000 on the roof because that's not the way we're spending our money, that's different than just saying there's no money.

[00:22:06] Speaker 04:
Because that's what they told her.

[00:22:07] Speaker 04:
They told her there's a lack of funds.

[00:22:10] Speaker 04:
And then she sees all these other promotions going on around her.

[00:22:14] Speaker 04:
say that in litigation, and only then do they say... Well, I don't know.

[00:22:18] Speaker 00:
I mean, I gotta say, if I have a daughter, and if she asks for $1,000, I think I'd feel entirely comfortable saying, we don't have any money, even if I just spent $15,000 on her roof.

[00:22:26] Speaker 00:
It just, it seems like the natural thing to say.

[00:22:28] Speaker 04:
So then you're saying that they treated her like a child.

[00:22:32] Speaker 00:
I'm not saying that.

[00:22:33] Speaker 00:
I'm taking your hypothetical and saying that it seems natural to say we don't have money when what you mean is we don't have money for the thing for which you want money.

[00:22:42] Speaker 00:
We have money for other things.

[00:22:43] Speaker 04:
So what is the reason that they didn't have money?

[00:22:47] Speaker 04:
And I know I'm asking a question again.

[00:22:49] Speaker 04:
They haven't put forth a reason.

[00:22:52] Speaker 04:
They have not put forth a reason for why it was not a priority, given the fact that every other 508 coordinator, and you know ACF is the biggest agency in HHS, that's their biggest agency, and she's a nine, and every other 508 coordinator.

[00:23:10] Speaker 03:
Didn't opposing councils just address that by saying they were very dissimilar positions, that they were 508 coordinators, but they also had other responsibilities and were different grades?

[00:23:20] Speaker 03:
Isn't that responder?

[00:23:22] Speaker 04:
Well, it's responding, but that's a question of fact.

[00:23:27] Speaker 01:
What isn't it resolved by the desk audit?

[00:23:31] Speaker 04:
No.

[00:23:32] Speaker 04:
Why?

[00:23:33] Speaker 04:
Because the supervisor controls the desk audit.

[00:23:36] Speaker 04:
There is testimony in the record, and I'm looking for it right now, of another 508 coordinator who is a GS-12, yes, Jamie Robinson, and it's at Joint Appendix 178.

[00:23:50] Speaker 04:
And he testifies, he's a GS-12 508 coordinator.

[00:23:54] Speaker 04:
He has no other duties.

[00:23:57] Speaker 04:
He's a 508 coordinator for the Office of the Secretary, which is much smaller than ACF.

[00:24:02] Speaker 04:
He's a 12.

[00:24:03] Speaker 04:
She's a 9.

[00:24:05] Speaker 04:
And I'm not saying, you know, we're not trying to do an apples-to-apples comparison.

[00:24:10] Speaker 01:
Yeah, you're not finding discrimination because of the juxtaposition of these two?

[00:24:15] Speaker 04:
I'm saying, what's the reason that they didn't want to give her an 11 back then?

[00:24:19] Speaker 04:
I don't know the reason.

[00:24:20] Speaker 04:
The reason is it's not a priority.

[00:24:22] Speaker 04:
Why isn't it a priority?

[00:24:25] Speaker 04:
Is it because she's blind?

[00:24:27] Speaker 04:
Every other 508 coordinator can see, and they are all higher than her.

[00:24:32] Speaker 04:
And while it might not meet the technical McDonald Douglas standard, the court has held, this court and the Supreme Court has held, you don't have to fit things into the little box of McDonald Douglas.

[00:24:45] Speaker 04:
The facts vary in cases, and here you have a black and blind employee who's doing 508 coordinating for a bigger agency than anyone else, and she's a nine.

[00:25:00] Speaker 04:
And they're all higher.

[00:25:01] Speaker 01:
And the supervisors agree that she's... The value argument was discrimination not to promote her because her job was so important.

[00:25:10] Speaker 01:
That's a different position that you're taking now.

[00:25:12] Speaker 04:
Wait, you're saying I'm not... I lost you.

[00:25:15] Speaker 01:
You're saying it was discrimination not to promote her because her job was undervalued.

[00:25:22] Speaker 04:
Because...

[00:25:25] Speaker 04:
Why do I think it's discrimination?

[00:25:26] Speaker 01:
Because everybody else- You're making a different claim now.

[00:25:29] Speaker 01:
You're claiming, hey, she was discriminated against, she should have been an 11 because she was mischaracterized.

[00:25:35] Speaker 01:
Her job was more important than a nine.

[00:25:40] Speaker 04:
At that point, yes.

[00:25:41] Speaker 04:
Yes, she had the- That's a different theory now.

[00:25:43] Speaker 04:
It's... I don't think it's different.

[00:25:46] Speaker 04:
It's not conflicting.

[00:25:48] Speaker 01:
It's shifting, isn't it?

[00:25:50] Speaker 04:
Just a little more thing.

[00:25:52] Speaker 04:
No, I mean, I think it goes together.

[00:25:54] Speaker 04:
We're saying that they had every reason to want to make her at least an 11.

[00:26:00] Speaker 04:
They had reasons to do it, and they haven't told us what the reason is that he didn't advocate the way he told her he was advocating.

[00:26:08] Speaker 04:
He told her he was submitting paperwork

[00:26:11] Speaker 04:
He told her he was, how can you advocate for a 508 coordinator if all you ask for is administrative support at the 11?

[00:26:19] Speaker 04:
That's all he asked for, according to the front office.

[00:26:23] Speaker 03:
Thank you very much.

[00:26:24] Speaker 03:
We have your argument.

[00:26:25] Speaker 03:
The case is submitted.