[00:00:02] Speaker 00:
Case number 14-5060, Ora Tabron, appellant, versus J. Charles Johnson.

[00:00:07] Speaker 00:
Ms.

[00:00:08] Speaker 00:
Gaines for the appellant, Mr. Tafe for the appellee.

[00:00:16] Speaker 00:
Good morning, Your Honors.

[00:00:17] Speaker 02:
Good morning.

[00:00:18] Speaker 00:
May it please the Court?

[00:00:19] Speaker 00:
My name is Eden Brown Gaines, and I have the distinct honor of representing Ora Tabron.

[00:00:24] Speaker 00:
I would like to reserve two minutes for rebuttal time.

[00:00:29] Speaker 00:
Ms.

[00:00:29] Speaker 00:
Taboron is a highly intelligent, extremely competent, infinitely professional woman who has given decades of her life to the civil service of this country.

[00:00:39] Speaker 00:
Despite a long list of accomplishments, accolades, and indisputable competencies and qualifications, white executives at the Customs and Border Protection Office denied Ms.

[00:00:50] Speaker 00:
Taboron a promotion to a seat at the executive table because she is a dark-skinned African American woman.

[00:00:57] Speaker 00:
I'm certain that this court has familiarized itself with the record and asked permission to dispense with the recitation of the facts.

[00:01:03] Speaker 02:
You can, yes.

[00:01:05] Speaker 03:
I don't understand the reference to dark skin.

[00:01:17] Speaker 00:
Well, one of the claims in the complaint was discrimination based on color, which admittedly is not often brought before the courts these days.

[00:01:25] Speaker 00:
But part of the issue is not just that she's African-American, but a person of darker skin or darker complexion.

[00:01:34] Speaker 00:
Ladies and gentlemen, on this record, I cannot help but suggest that something other than basic application of the facts to the law occurred in this case.

[00:01:43] Speaker 00:
I don't know if the decision is based on what we've seen as a backlash against the civil rights laws in the last few years in our jurisprudence.

[00:01:52] Speaker 00:
or whether the decision is the outcome of an overtaxed court who must pick and choose among the controversies to which it has time to give thorough exposition, or whether the word of the U.S.

[00:02:03] Speaker 00:
Attorney's Office is taken, even if demonstrably unreliable over the ordinary citizen, or whether there was some other factor that led to us being here today.

[00:02:12] Speaker 00:
I simply know that it was not justice.

[00:02:15] Speaker 00:
I'm not going to argue that the court is home to even determine why the opinion of the district court is so divergent from the law and the credible record facts.

[00:02:23] Speaker 00:
Instead, I'm going to ask for the court's assistance in maintaining the integrity of this judicial system.

[00:02:29] Speaker 00:
The American people are losing faith in our judicial system.

[00:02:32] Speaker 00:
And I think the gap between our country and countries like Egypt or Brazil, where civil unrest has become the rule of the day, is becoming increasingly narrow.

[00:02:41] Speaker 00:
There are few who will openly disagree with the concept that distinguishing factors in the selection process should not include race and skin color.

[00:02:50] Speaker 02:
Let me just interrupt you and ask you about an aspect of the record that at least I think is pretty important.

[00:02:56] Speaker 02:
You give four examples of

[00:02:59] Speaker 02:
evidence of racial animus here, having to do with Wallace, Gaithers, Manley, Scott, and Bannister, those four cases.

[00:03:13] Speaker 02:
Which do you think is your strongest

[00:03:17] Speaker 02:
Which one of those do you think is the strongest evidence of racial animus on the part of the higher official?

[00:03:26] Speaker 00:
Well, I think with respect to the discriminatory animus, I think that the largest example is the comparator example of the young woman by the name of Sharon Brown.

[00:03:39] Speaker 00:
Ms.

[00:03:39] Speaker 00:
Brown was also a dark-skinned African American.

[00:03:41] Speaker 02:
Is she the one who, she's the other applicant

[00:03:43] Speaker 02:
for whom there was no request for transcript.

[00:03:46] Speaker 02:
Is that the point?

[00:03:47] Speaker 00:
That's right, Your Honor.

[00:03:48] Speaker 00:
Just weeks after this non-selection, Sharon Brown applied for a position.

[00:03:52] Speaker 00:
She submitted her graduate transcript because the requisite education to qualify for the job was contained in her graduate transcript.

[00:03:59] Speaker 00:
She assumed that the Human Resources Office would know that having attended graduate school, she also attended undergraduate school, and she had submitted her undergraduate transcript in a prior application, and in order to have the job, she then encumbered.

[00:04:14] Speaker 00:
When she realized that she had been found ineligible because of this issue with the undergraduate transcript, she contacted the hiring center.

[00:04:21] Speaker 01:
The same hire- As to that one, is there evidence in the record from which we could conclude, that the regional jury can conclude that Koval was involved?

[00:04:29] Speaker 01:
Absolutely.

[00:04:31] Speaker 00:
It was the same hiring center that works closely with the office.

[00:04:35] Speaker 00:
Covell was the selecting official in that case as well.

[00:04:39] Speaker 00:
When she contacted the hiring center, the hiring center, if they wanted to treat everyone the same, could have just as easily have gone to Ms.

[00:04:45] Speaker 00:
Covell, said we're going to allow, in this case, individuals to submit transcripts so that they can be found eligible for selection.

[00:04:53] Speaker 00:
Yes, that's correct.

[00:04:54] Speaker 00:
That's correct.

[00:04:55] Speaker 00:
Yes, I mean, there was a distinction in the sense that in Ms.

[00:04:57] Speaker 00:
Tabron's case, the selectee went directly to the selection officials, which is prohibited.

[00:05:02] Speaker 00:
You're not supposed to talk to the selection officials once the announcement has closed.

[00:05:06] Speaker 02:
The government says in its brief that there's no evidence in the record that Covell was even alerted to the problem of the transcript in the Brown case.

[00:05:14] Speaker 02:
Is that not accurate?

[00:05:16] Speaker 02:
I'm sorry, Your Honor.

[00:05:17] Speaker 02:
The government says there's no evidence that Covell was alerted to the transcript omission in the Brown case.

[00:05:24] Speaker 00:
That's correct.

[00:05:25] Speaker 00:
There's no evidence.

[00:05:26] Speaker 00:
Ms.

[00:05:26] Speaker 00:
Covell didn't say I knew that Sharon Brown had applied and had been found ineligible.

[00:05:30] Speaker 00:
That's correct.

[00:05:31] Speaker 00:
But Ms.

[00:05:31] Speaker 00:
Brown did go to the hiring center, the same hiring center that Ms.

[00:05:35] Speaker 00:
Covell went to.

[00:05:37] Speaker 00:
And the hiring center in Ms.

[00:05:39] Speaker 00:
Reyes, the Selectives case,

[00:05:40] Speaker 00:
And the issue that we're here today for made the change.

[00:05:44] Speaker 02:
Did the hiring center resist the change in this case?

[00:05:46] Speaker 00:
They exactly resisted it.

[00:05:48] Speaker 02:
So the hiring center, its position in both cases, at least in principle, was the same.

[00:05:56] Speaker 02:
Don't mess with the process, right?

[00:05:58] Speaker 02:
Initially, yes.

[00:05:59] Speaker 02:
And it was Covell who overruled it in this case.

[00:06:02] Speaker 00:
Well, she didn't overrule it.

[00:06:04] Speaker 00:
The hiring center has the ultimate authority decision.

[00:06:07] Speaker 00:
So they decided in that case.

[00:06:08] Speaker 02:
They decided it under pressure from her, right?

[00:06:12] Speaker 00:
Yes, that's correct.

[00:06:13] Speaker 02:
So then the government's point that she wasn't alerted to the transcript problem in the Brown case is significant, isn't it?

[00:06:20] Speaker 00:
I don't think so.

[00:06:21] Speaker 00:
I don't think it's distinguishing such that it doesn't lend as evidence from which a fact finder could draw certain conclusions.

[00:06:28] Speaker 00:
If you take the evidence and the light most favorable to Ms.

[00:06:32] Speaker 00:
Tabron as the court was to do on summary judgment and consider all reasonable inferences there from, the fact that you have the hiring center in one case saying yes

[00:06:40] Speaker 00:
and in another case saying no suggests discrimination, and a jury could certainly draw that inference.

[00:06:46] Speaker 00:
The fact that they may see it another way doesn't mean that summary judgment was appropriate.

[00:06:52] Speaker 00:
And I think with that as a factor of discrimination, coupled with what the law says about manipulating the selection procedures, which is very much what happened in this case, coupled with other evidence... I'll go back to the question that Taito asked you at the outset.

[00:07:07] Speaker 03:
What is your evidence

[00:07:11] Speaker 03:
And also, can you deal with the point the government makes that Ms.

[00:07:18] Speaker 03:
Cobell, after all, had recommended your client for promotion before?

[00:07:23] Speaker 00:
Certainly.

[00:07:24] Speaker 03:
You did say in your brief that she was under pressure from somebody senior, but I don't see any indication of that in the evidence.

[00:07:34] Speaker 00:
Yes, there's a genuine issue there.

[00:07:35] Speaker 03:
You can't make a genuine issue just by making a broad allegation without any support.

[00:07:41] Speaker 00:
Well, I think there's a little confusion on what it means to make a conclusory allegation.

[00:07:46] Speaker 00:
A conclusory allegation isn't conclusory simply because it was offered by the plaintiff.

[00:07:51] Speaker 00:
A plaintiff is able to testify, and that's real evidence.

[00:07:54] Speaker 00:
Allegations are conclusory when you use general terms.

[00:07:57] Speaker 00:
For example, I was discriminated against.

[00:07:59] Speaker 00:
I was retaliated against.

[00:08:00] Speaker 00:
That's conclusory.

[00:08:02] Speaker 00:
But to say, this is what happened, and here are the details, that isn't conclusory.

[00:08:06] Speaker 00:
So when Ms.

[00:08:07] Speaker 00:
Tabron

[00:08:07] Speaker 00:
said in her affidavit that Ms.

[00:08:11] Speaker 00:
Covell was forced to promote me by the assistant commissioner, Debbie Spiro, at the time.

[00:08:17] Speaker 00:
That counts as evidence.

[00:08:18] Speaker 03:
No, no, that's an allegation.

[00:08:20] Speaker 03:
That's an allegation.

[00:08:21] Speaker 03:
And the only evidence is contrary.

[00:08:24] Speaker 03:
You have no evidence to support it.

[00:08:25] Speaker 00:
Well, she gave a statement.

[00:08:26] Speaker 00:
She put Ms.

[00:08:27] Speaker 00:
Tabron, she put it...

[00:08:30] Speaker 00:
Because she was there.

[00:08:32] Speaker 00:
She had first-hand knowledge.

[00:08:33] Speaker 00:
Of what?

[00:08:34] Speaker 00:
Of the fact that Ms.

[00:08:35] Speaker 00:
Cobell had to be forced to... By whom?

[00:08:37] Speaker 00:
By Debbie Spiro, the assistant commissioner.

[00:08:39] Speaker 03:
She spoke with... She was part of the conversation.

[00:08:41] Speaker 00:
She told you.

[00:08:42] Speaker 00:
She was part of the conversation.

[00:08:44] Speaker 00:
Yes, sir.

[00:08:45] Speaker 00:
She worked with all of them at the time.

[00:08:46] Speaker 03:
No, no, I'm asking you, she was part of the conversation between the assistant commissioner and Cobell?

[00:08:52] Speaker 00:
No, she's not saying that she was a part of the conversation between the two of them.

[00:08:55] Speaker 03:
Then she has no evidence of this, right?

[00:08:56] Speaker 00:
Well, if Debbie Spiro talks to her and tells her.

[00:08:59] Speaker 00:
Wait a minute, wait a minute, wait a minute.

[00:09:01] Speaker 00:
Do you have any, I don't see any allegation of that.

[00:09:03] Speaker 00:
Your Honor, there's simply an affidavit that just says a statement, and I believe Ms.

[00:09:07] Speaker 00:
Tayron also testified to it in her deposition.

[00:09:09] Speaker 03:
But I looked at it carefully.

[00:09:11] Speaker 03:
I don't see any support for that contention.

[00:09:15] Speaker 03:
Now, there's another thing on evidence.

[00:09:18] Speaker 03:
You can't rely on hearsay statements.

[00:09:21] Speaker 03:
because they wouldn't be admissible in response to a summary judgment motion.

[00:09:28] Speaker 00:
Well, you can rely on hearsay if it could be admissible at court.

[00:09:33] Speaker 00:
Right.

[00:09:35] Speaker 03:
Now, with respect to the question Judge Tagel asked you about the four incidents, they're all hearsay, are they not?

[00:09:43] Speaker 03:
You're relying on hearsay.

[00:09:45] Speaker 00:
No, sir.

[00:09:46] Speaker 00:
Ms.

[00:09:47] Speaker 00:
Tabron has first-hand knowledge of many of the incidents.

[00:09:49] Speaker 00:
For example, she gave as an example of discriminatory animus the fact that Ms.

[00:09:54] Speaker 00:
Kobel will come in in the mornings and not speak to her or the other African-American staff members.

[00:09:59] Speaker 00:
She was there.

[00:10:00] Speaker 00:
It's first-hand knowledge.

[00:10:01] Speaker 00:
She observed Ms.

[00:10:02] Speaker 00:
Kobel's relationships with other African-American supporters, I mean, subordinates, because she worked closely in the office with Ms.

[00:10:10] Speaker 00:
Kobel.

[00:10:11] Speaker 03:
So the only evidence that she

[00:10:16] Speaker 03:
Not to everyone.

[00:10:22] Speaker 00:
She spoke openly to the people who were not African American in the office, but she was cold to the African Americans in the office.

[00:10:29] Speaker 03:
She gave evidence.

[00:10:34] Speaker 00:
No, except for Ms.

[00:10:35] Speaker 00:
Brown, who feels like that she, too, was discriminated against.

[00:10:38] Speaker 00:
But again, a conclusory statement is just, I've been discriminated against.

[00:10:43] Speaker 01:
A statement that gives us the- Can I ask a question about that?

[00:10:45] Speaker 01:
Sure.

[00:10:45] Speaker 01:
So we have a case called Green versus Dalton, which I think was referenced in the briefing.

[00:10:50] Speaker 01:
You can correct me if I'm wrong about that.

[00:10:51] Speaker 01:
But in that, an issue came up about whether an allegation was conclusory.

[00:10:57] Speaker 01:
And the statement of the affidavit was a retaliation claim.

[00:11:00] Speaker 01:
And the statement of the affidavit by the person who allegedly was retaliated against was that she had applied for summer jobs in two prior years and was not hired even though another student who had less experience and education was hired.

[00:11:13] Speaker 01:
And so that's more than a bare allegation of discrimination.

[00:11:16] Speaker 01:
It says what the facts were that supported, which is to say that there was another student who is a comparator because they had less education experience.

[00:11:24] Speaker 01:
But they were hired.

[00:11:25] Speaker 01:
I wasn't.

[00:11:25] Speaker 01:
And there must have been retaliation as a consequence, which is the inference that Green urged to be drawn.

[00:11:32] Speaker 01:
But we held that that was still too conclusory.

[00:11:35] Speaker 00:
Because I think that statement doesn't drill down far enough, and I think there's a distinction between that statement and what we have here.

[00:11:41] Speaker 00:
She's just not saying that I didn't get selected for this job and my qualifications were superior.

[00:11:47] Speaker 00:
She's giving specific examples.

[00:11:49] Speaker 00:
She's saying I had eight years in headquarters setting the policy and the agenda for CBP, and the selectee didn't even have a single year.

[00:11:58] Speaker 00:
I had been auditing- Oh, I'm sorry.

[00:12:00] Speaker 01:
I was talking about not the overall allegations of her qualifications vis-a-vis Reyes, but about the specific four allegations in the- But she also gave specific allegations of discrimination.

[00:12:10] Speaker 00:
To say that someone comes into the office and doesn't speak to the African Americans in the office, but speaks to the white individuals in the office is more than just saying this person

[00:12:20] Speaker 00:
acts discriminatory or has bias against me, it drills down and provides specific facts to give the names of subordinates who worked for the decision-maker and to give examples of how that decision-maker mistreated the African-American subordinates in comparison to other men, mostly white in this case, but in other cases other than African-American subordinates, and then to say when they went to other supervisors how their careers dramatically changed.

[00:12:45] Speaker 00:
That's a little more than the

[00:12:46] Speaker 00:
broad conclusory allegation.

[00:12:48] Speaker 00:
It's drilling down and giving specific facts.

[00:12:51] Speaker 00:
So if we were to say that, we're leaning towards saying that just because a plaintiff says it, just because a plaintiff offers their testimony, it's conclusory.

[00:13:00] Speaker 00:
And I'm certain that that is not what this court intends to do.

[00:13:03] Speaker 00:
The court wants specifics.

[00:13:04] Speaker 00:
The court wants the parties to drill down and not make the ball of allegations.

[00:13:08] Speaker 00:
But we don't want to go so far as to say we're not listening to anything the plaintiff says.

[00:13:13] Speaker 00:
Juries have the right to hear testimony from the plaintiff and to make assertions, to draw inferences, and to make determinations based on what the plaintiff has offered.

[00:13:21] Speaker 00:
I think my time is out.

[00:13:25] Speaker 02:
Thank you.

[00:13:26] Speaker 00:
Thank you.

[00:13:37] Speaker 04:
Good morning, Your Honors.

[00:13:38] Speaker 04:
May it please the Court?

[00:13:38] Speaker 04:
My name is Damon Tafe, and I represent the United States.

[00:13:42] Speaker 04:
It's the view of the government in this case that the District Court properly granted summary judgment on the record before it.

[00:13:48] Speaker 04:
Listening to the Court's questions, I believe the Court is thinking about this in a way that makes sense.

[00:13:54] Speaker 04:
But stepping back, we would point out one large fact here that has not gone addressed, which is that

[00:14:00] Speaker 04:
All the discussions so far, and indeed the emphasis of the plaintiff's brief on appeal is actions that Cavell took.

[00:14:09] Speaker 04:
And we're more than willing to defend all those actions.

[00:14:11] Speaker 04:
We think they're the actions of a good government servant doing the right thing.

[00:14:15] Speaker 04:
But in this case, it's important to note that Cavell was not the selecting official.

[00:14:20] Speaker 04:
The selecting official was Daniel Baldwin.

[00:14:23] Speaker 04:
He gave a declaration that's gone completely unrebutted in this case as to what he looked at in making this decision.

[00:14:30] Speaker 04:
And he said he looked at three things.

[00:14:32] Speaker 04:
He looked at the resumes that were submitted for Ms.

[00:14:34] Speaker 04:
Tabrin and Ms.

[00:14:36] Speaker 04:
Reyes, the interview notes.

[00:14:38] Speaker 04:
And the interviews were conducted by James Madden and Keith Richard.

[00:14:41] Speaker 04:
That is to say, not Ms.

[00:14:42] Speaker 04:
Cavell.

[00:14:43] Speaker 04:
And then Ms.

[00:14:44] Speaker 04:
Cavell's recommendation that he agreed with.

[00:14:46] Speaker 04:
And if you look at Mr. Baldwin's declaration,

[00:14:50] Speaker 04:
He says in three different places on two pages that field experience made all the difference to him, that Reyes had it, and specifically that Ms.

[00:15:01] Speaker 04:
Tabrin did not have it, at least of the level that Reyes did, and not in the boots on the ground sense that he considered to be the most valuable.

[00:15:10] Speaker 04:
And that's why he made his decision.

[00:15:12] Speaker 01:
So that's definitely possible.

[00:15:14] Speaker 01:
But I guess the question is, if

[00:15:17] Speaker 01:
Covell's recommendation is part of the decision-making process.

[00:15:20] Speaker 01:
And so let's just hypothesize, for the sake of argument, I don't know if we'll resist it, understandably, but let's just hypothesize that her recommendation is born of some illicit consideration.

[00:15:29] Speaker 01:
If that's true, and that's part of the recommendation process, and it was conceivably taken into account, well, then that's something that goes to a jury.

[00:15:35] Speaker 04:
No?

[00:15:36] Speaker 04:
If it was based on an illicit factor that he then took without making his own independent determination, I think that that might be a concern.

[00:15:46] Speaker 03:
No, no, no.

[00:15:49] Speaker 03:
Covell's racial animus, and she recommended based in part on racist animus, then the case is quite different, isn't it?

[00:16:01] Speaker 04:
I agree the case would be certainly different than the one we have here.

[00:16:04] Speaker 03:
So you still have to defend Covell's position.

[00:16:08] Speaker 04:
There's no way to avoid it.

[00:16:11] Speaker 04:
Absolutely.

[00:16:11] Speaker 04:
I'm willing to defend Ms.

[00:16:12] Speaker 03:
Covell's position.

[00:16:15] Speaker 04:
Yes, Your Honor.

[00:16:18] Speaker 04:
In a view of the government, Ms.

[00:16:19] Speaker 04:
Cavell's actions here are indistinguishable from someone who is trying to ensure the broadest and best-qualified applicant pool that she had.

[00:16:29] Speaker 03:
What about the point that I asked counsel about, that Ms.

[00:16:34] Speaker 03:
Cavell had recommended the plaintiff for promotion?

[00:16:44] Speaker 03:
a discriminatory anonymous.

[00:16:46] Speaker 03:
Her response is that the allegation is that Covell was pressured to do that.

[00:16:55] Speaker 04:
Well, there's no evidence in the record that that's the case, Your Honor, aside from a conclusory statement in a declaration by the plaintiff that she believes it to be true.

[00:17:03] Speaker 04:
And notably, getting to Your Honor's question, there's not even an allegation that she was privy to the conversations between Cavell and Sparrow on that point.

[00:17:12] Speaker 04:
So in the view of the government, it's pure speculation, which isn't sufficient on summary judgment.

[00:17:19] Speaker 04:
But moving on to the remainder of the evidence with respect to Cavell.

[00:17:26] Speaker 02:
Isn't there pretty powerful evidence at least about pre-selection here?

[00:17:31] Speaker 04:
We believe that there's some evidence.

[00:17:33] Speaker 04:
We would disagree with the characterization that it's powerful.

[00:17:37] Speaker 02:
This fellow at Bossinger, is that his name?

[00:17:43] Speaker 02:
Bossinger, Bossinger.

[00:17:45] Speaker 04:
Yes.

[00:17:46] Speaker 02:
He says at Joint Appendix 296, he says, the applicants I rated as ineligible happened to be the ones the management wanted to select close book.

[00:18:04] Speaker 02:
That's in his email.

[00:18:05] Speaker 04:
It is.

[00:18:06] Speaker ?:
Right.

[00:18:07] Speaker 04:
Our response to that, Your Honor, is that there's no description of what the source of his knowledge might be.

[00:18:15] Speaker 04:
It sounds, in the government's view, like the words of somebody who is being made to do extra work that he didn't believe he needed to do.

[00:18:26] Speaker 04:
Wait a minute.

[00:18:30] Speaker 02:
The applicants I rated as ineligible, is that false?

[00:18:34] Speaker 04:
Did he not rate them?

[00:18:34] Speaker 02:
It's not false.

[00:18:35] Speaker 04:
It's correct.

[00:18:35] Speaker 02:
OK.

[00:18:37] Speaker 02:
And did the ones he rated as ineligible, were those the two management wanted?

[00:18:42] Speaker 02:
Was that the one who was selected?

[00:18:44] Speaker 02:
Taberin, yes, included her.

[00:18:46] Speaker 02:
OK.

[00:18:46] Speaker 02:
So I don't understand what's wrong with this statement.

[00:18:48] Speaker 02:
It seems to be pretty clear evidence.

[00:18:50] Speaker 02:
I mean, I understand your argument that preselection by itself isn't sufficient.

[00:18:54] Speaker 02:
But I mean, I've seen a lot of cases here.

[00:18:57] Speaker 02:
And I haven't seen evidence quite like that on preselection.

[00:19:02] Speaker 02:
That's pretty clear.

[00:19:04] Speaker 04:
Your Honor, there's no evidence about what the source of his knowledge is.

[00:19:11] Speaker 04:
There's no evidence in that email.

[00:19:13] Speaker 04:
There's no description of, I talked to Cavell, I talked to Baldwin.

[00:19:17] Speaker 04:
He says he raided them.

[00:19:18] Speaker 04:
Well, yes, to be clear, he's the one who rated them ineligible.

[00:19:22] Speaker 04:
And then there was a decision by HR after urging by Cabell to reopen the process.

[00:19:28] Speaker 02:
We're just at summary judgment here.

[00:19:31] Speaker 02:
You may be able to prove that this isn't, but how could a jury not conclude from that that there's preselection?

[00:19:39] Speaker 04:
Because there's no evidence as to... Can I ask you the question this way?

[00:19:43] Speaker 01:
Suppose that the law prohibited preselection.

[00:19:46] Speaker 01:
I mean, there's an argument... The law prohibits discrimination.

[00:19:48] Speaker 01:
You could make the argument that the law doesn't prohibit preselection.

[00:19:51] Speaker 01:
It prohibits preselection with a discriminatory bias.

[00:19:53] Speaker 01:
But let's just assume there's a statute that bars preselection.

[00:19:57] Speaker 01:
Would you take the position as the government that the law against preselection, hypothesizing that law to be in effect, that this case couldn't go to a jury on whether there was preselection?

[00:20:08] Speaker 04:
It would be a closer call than what we have today.

[00:20:11] Speaker 04:
I would still feel comfortable defending the idea that emerging here, which is that one statement untethered from any context is the source of his knowledge or whether it's pure speculation.

[00:20:22] Speaker 04:
would not be enough to overcome the statements of the selecting official and the recommending official, but certainly that's a closer call than the ultimate question here, which Your Honor alluded to, which is that even putting pre-selection to one side, that doesn't overcome the problem that Your Honor noted in the Green case, which is that

[00:20:44] Speaker 04:
preselection itself is tenuous evidence at best of impermissible pretext or discrimination.

[00:20:52] Speaker 04:
So our position in this case is that we would not conclude that there is sufficient evidence of preselection to go to a jury here.

[00:21:01] Speaker 04:
But if the court disagrees with us, then.

[00:21:03] Speaker 02:
So let's go on to the evidence of animus.

[00:21:07] Speaker 02:
Here's what she says about Darlene Bannister.

[00:21:09] Speaker 02:
She says, there is disparity in how she is treated compared to the Caucasian staff.

[00:21:16] Speaker 02:
Coval assigns more challenging evidence to the other, work to the other staff assistants, and assigns only routine, non-challenging work to Darlene.

[00:21:32] Speaker 04:
We would question why Ms.

[00:21:35] Speaker 04:
Bannister, if I have her name correct, didn't submit a declaration of that.

[00:21:39] Speaker 04:
She would be the best evidence of that.

[00:21:41] Speaker 04:
We have a responding declaration that Ms.

[00:21:43] Speaker 04:
Cavell provided explaining that that's, in fact, not a fair characterization.

[00:21:50] Speaker 03:
unless there's any support?

[00:21:53] Speaker 04:
Yes, Your Honor, that's correct.

[00:21:56] Speaker 04:
I think it would be a rare case in which a plaintiff alleging discrimination could not concoct or at least describe some alleged facts relating to other people that would suggest that he or she is not alone in experiencing what he or she alleged that she experienced.

[00:22:15] Speaker 04:
If that were enough to overcome summary judgment, it would be a rare case in which summary judgment is appropriate.

[00:22:21] Speaker 04:
And as Your Honor suggested, the answer here is that the only evidence is her own broad statements about what happened.

[00:22:30] Speaker 04:
I think this might be a different case if we had declarations from all of these people that suggested that there were some veracity to the allegations.

[00:22:36] Speaker 01:
But what if it was her and she gave the allegations, but

[00:22:40] Speaker 01:
They're just much more specific and detailed about exactly which incidents she's talking about.

[00:22:44] Speaker 01:
It's still in the same vein that it has to do with disparate treatment.

[00:22:47] Speaker 01:
And one was treated more harshly than another.

[00:22:52] Speaker 01:
But it's at a lower level of generality.

[00:22:55] Speaker 04:
I think that would help their case, Your Honor, but we would then have to go into a much more detailed analysis about were these people similarly situated?

[00:23:05] Speaker 04:
Did they have knowledge?

[00:23:06] Speaker 04:
I mean, what were the backstories as to what happened here?

[00:23:09] Speaker 04:
And the evidence is just woefully underdeveloped on this record.

[00:23:13] Speaker 04:
Even if we were to have more detailed declarations, I think that would be a tougher case, but without knowing what the details are, such that we would have a chance to submit responding declarations or take depositions.

[00:23:25] Speaker 04:
It's difficult to offer a much more specific response.

[00:23:29] Speaker 03:
What about her one statement made at oral argument here, to the effect that she observed that Pavelle, when she came in in the morning, was more friendly to whites than she was to blacks?

[00:23:46] Speaker 04:
Well, that statement is admissible, but in terms of its probative value, it's very, very small, especially in light of the same actor presumption here, which is, in the past, Miss Cavell sponsored, in effect, Miss Tabrin for a promotion.

[00:24:03] Speaker 04:
So, and she testified in a declaration that since that happened in the intervening years, working with her, it's become increasingly difficult.

[00:24:12] Speaker 04:
And that makes sense as an explanation for how we got to this point.

[00:24:17] Speaker 03:
Doesn't that also support the preselection?

[00:24:21] Speaker 03:
How so, Your Honor?

[00:24:22] Speaker 03:
Doesn't that also support the preselection?

[00:24:25] Speaker 04:
I don't believe it does, Your Honor.

[00:24:26] Speaker 03:
I mean, she didn't like Mr. Durbin.

[00:24:30] Speaker 04:
Well, she experienced difficulties working with her, but at the same time, Your Honor, Ms.

[00:24:36] Speaker 04:
Taborn was one of the two finalists selected from about 16 for this position.

[00:24:39] Speaker 03:
It doesn't matter.

[00:24:42] Speaker 03:
If the case was a preselection case, it would be strong.

[00:24:47] Speaker 03:
But on the other hand, perhaps I'm naive, but I can't imagine

[00:25:06] Speaker 03:
race if a job came up.

[00:25:10] Speaker 03:
I mean, human nature being what it is.

[00:25:13] Speaker 04:
That's absolutely right, Your Honor.

[00:25:16] Speaker 04:
It's why preselection itself is not illegal.

[00:25:19] Speaker 04:
And this Court has issued decisions stating that it's not even uncommon or terribly prerogative of illegality.

[00:25:26] Speaker 04:
And at the very most, as the Court said, that's what we have here.

[00:25:29] Speaker 04:
The evidence of racial animus is vanishingly thin.

[00:25:32] Speaker 03:
Well, preselection would be more of a problem

[00:25:35] Speaker 03:
if it seems if the person who made the pre-selection hadn't worked directly with the two applicants, then it would be more problematic.

[00:25:47] Speaker 03:
But if the supervisor making the recommendation has two people who are direct reports, it's inconceivable that such a supervisor wouldn't have a preference, without regard to race.

[00:26:02] Speaker 03:
Anyway, that just seems like perhaps underlying on human nature rather than law.

[00:26:09] Speaker 04:
We agree certainly, Your Honor, and that's why it's the view of the government that allowing preselection itself to carry the day in a case like this would render it very, very difficult for innumerable business circumstances involving management where as soon as you know one of the two applicants and you like that applicant and think that applicant is a

[00:26:33] Speaker 04:
a promising candidate, if that evidence alone could support legal discrimination.

[00:26:38] Speaker 01:
Well, can I just point out one follow-up question to Judge Silberman's question to you, which is that the suggestion that there was an observation that COVEL was colder to certain employees than other employees, and one rather than the other, is that a gloss on the statement in the

[00:26:58] Speaker 01:
in Tebron's affidavit or is that coming from somewhere else?

[00:27:05] Speaker 01:
In fact, in other words, was there actual testimony, deposition testimony or something like that that says that or is that a description?

[00:27:11] Speaker 04:
As far as I'm aware, it's flowing from the gloss on the affidavit.

[00:27:16] Speaker 04:
Okay.

[00:27:17] Speaker 04:
I'm not aware of any deposition testimony to that effect.

[00:27:19] Speaker 04:
Okay.

[00:27:23] Speaker 02:
Anything else?

[00:27:24] Speaker 04:
Thank you, Your Honor.

[00:27:26] Speaker 02:
I think Miss Gaines was out of time.

[00:27:28] Speaker 02:
You can take one minute if you'd like it.

[00:27:33] Speaker 00:
Yeah.

[00:27:34] Speaker 00:
Just a couple of quick points.

[00:27:36] Speaker 00:
With respect to the idea that Ms.

[00:27:38] Speaker 00:
Covell had promoted Ms.

[00:27:41] Speaker 00:
Tabron in the past, I just want to make the point that that could be evidence that a jury could consider against Ms.

[00:27:46] Speaker 00:
Tabron, but it's evidence that has to go to a jury.

[00:27:49] Speaker 00:
It's not per se a dispositive of whether summary and judgment was appropriate.

[00:27:54] Speaker 00:
And then let me point out that there are glass ceilings.

[00:27:57] Speaker 00:
I worked at glass ceilings.

[00:27:59] Speaker 00:
You can promote someone to a certain point because you need them to do the work and you need good people to work, but then when it comes to sitting at a seat with management next to you, you may be against that because of your racial bias and discriminatory animus.

[00:28:12] Speaker 00:
I'd also like to point out that this isn't just a preselection case.

[00:28:16] Speaker 00:
It's preselection plus manipulation of the selection procedures plus discriminatory animus

[00:28:21] Speaker 00:
plus a decision maker who was not credible in the testimony that she gave.

[00:28:26] Speaker 00:
All of those factors together should have sent this to a jury.

[00:28:29] Speaker 00:
We're not here to decide whether Ms.

[00:28:32] Speaker 00:
Taberon was discriminated against.

[00:28:33] Speaker 00:
That's not the province of this court.

[00:28:34] Speaker 00:
It's to determine whether she elicited sufficient evidence to go to a jury.

[00:28:39] Speaker 00:
If the court wants to lift the page limits and the submission limits, we could submit millions of things in cases.

[00:28:45] Speaker 02:
But we're not going to do that.

[00:28:46] Speaker 00:
Don't worry.

[00:28:47] Speaker 01:
Can I just get a quick clarification on the point I asked your opponent, which is the statement that there was an observation of coldness towards one employee versus another.

[00:28:59] Speaker 01:
Is that a gloss on what's in the affidavit?

[00:29:01] Speaker 00:
No, she gave testimony to it, and then I believe it may have been in the affidavit in support of summary judgment and not the ROI.

[00:29:08] Speaker 00:
affidavit from the EEO investigation.

[00:29:10] Speaker 00:
I was trying to find it, but I didn't have sufficient time.

[00:29:12] Speaker 00:
She didn't say that she was cold.

[00:29:13] Speaker 00:
She just said that when she came in in the morning, she didn't speak to me or other African Americans when she did so for white individuals.

[00:29:21] Speaker 00:
I think it's evidence that supports the idea that she didn't want to work with African Americans.

[00:29:26] Speaker 00:
She had issues with African Americans.

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

[00:29:30] Speaker 02:
Thank you.

[00:29:30] Speaker 02:
Case is submitted.