[00:00:00] Speaker 00: Case number 12, that is 5334 at L. Rhonda N. Beer, Appellant, Mrs. Joshua Gottbaum, Director of Pension Benefit Guarantee Corporation. [00:00:13] Speaker 00: Ms. [00:00:13] Speaker 00: Beer for the Appellant, Ms. [00:00:15] Speaker 00: Lyons for the Appellee. [00:00:43] Speaker 01: Ms. [00:00:43] Speaker 01: Beyer, good point. [00:00:45] Speaker 01: Good morning, Your Honors. [00:00:46] Speaker 01: May it please the Court, I reserve two minutes for rebuttal. [00:00:51] Speaker 01: In the first five years of my employment at the Pension Benefit Guarantee Corporation, I had a productive work environment, positive reputation, and strong performance ratings. [00:00:59] Speaker 01: That's reflected in the record through testimony of my colleagues and supervisor at page 113. [00:01:05] Speaker 01: That all changed in 2002 when I testified on behalf of the union in an EEO action brought against the agency in April of 2002, and then in October of 2002, from my first EEO complaint against the agency. [00:01:20] Speaker 01: Six weeks after filing that complaint, my acting supervisor, John Coliga, subjected me to a very traumatic experience. [00:01:26] Speaker 01: Physical confrontation, verbal abuse, threatening language, escalating what was a difference of opinion between the two of us. [00:01:34] Speaker 01: When I reported that to the general counsel, I was surprised by the stand, the smirk, and further devastated by the delay to investigate it all and then the failure to adequately investigate that. [00:01:48] Speaker 01: serious incident. [00:01:52] Speaker 01: That's the beginning of the hostile work environment. [00:01:55] Speaker 01: That's what I allege. [00:01:56] Speaker 01: In my complaint, I allege that the General Counsel, Deputy General Counsel Hurts, their subordinates and agents began a pattern of fomenting acts in the workplace to harass. [00:02:10] Speaker 01: And when I complained, failing to employ the agency's investigative power and police power to correct the actions, in retaliation for my testimony and my participation in the EEO process, [00:02:23] Speaker 01: The general counsel and deputy general counsel are vested with significant institutional authority that includes the agency's police power, and use that authority to sanction things such as, not just the Peliga incident, but attorneys and agents in offices of the general counsel and the human resources department that they work closely with. [00:02:43] Speaker 01: Physical confrontations, intimidation, such as Moreno in the human resources department pounding the table while they abuse me, [00:02:51] Speaker 01: Attorney Schwartz in the general counsel's office, a subordinate of Deputy General Counsel Hurst and the general counsel, not only committing the same acts of intimidating with pounding the table and abusing, but expanding it to use language from the district court, Judge Havel, to allege that she had called me a cancer publicly in front of persons that I have to work with on a routine basis. [00:03:15] Speaker 01: In the record at page 72 is what Judge Havel said. [00:03:18] Speaker 01: She never called me a cancer. [00:03:20] Speaker 01: But that's the agency's act of ginning up the workplace in an attempt to change my reputation and to penalize me for the temerity to participate in the EEO process. [00:03:31] Speaker 01: The record has additional evidence. [00:03:33] Speaker 01: Deputy General Counsel Hurts and his grunts and snorts literally making me so uncomfortable. [00:03:40] Speaker 01: I go to the EEO office and bear to paragraph 36 to complain and to beg for help when the General Counsel wouldn't provide any. [00:03:48] Speaker 01: And the General Counsel's response is, well, tell her to stuff her suit and I'll talk to the staff. [00:03:54] Speaker 01: That's not the only evidence. [00:03:55] Speaker 01: Some additional examples is disseminating defamatory emails. [00:03:58] Speaker 01: People like Jeffress, who heard and understood the agency's actions towards me in the arbitration over the political incident, disseminating emails over the agency's system, calling and referring to me as psychotic, and having no corrective action when I report. [00:04:17] Speaker 01: Ray Forrester, who represented the agency in the arbitration of the Pulitzer incident, disseminating an email with Deputy General Counsel Hertz on it, referring to me as experiencing litigation-induced hallucinations, an email that's distributed to the entire general counsel staff. [00:04:33] Speaker 01: One of the things that caused me a great deal of concern then and now is basis allegations of ethical misconduct made by Attorney Schwartz. [00:04:41] Speaker 01: You can't file that motion without approval from the hierarchy, including Deputy General Counsel Hertz. [00:04:49] Speaker 01: At the same time that I learned from the agency that they have subjected the only other attorney who dares to help employees with EEO actions to ethical conduct violation before the DC bar. [00:05:01] Speaker 01: And here I'm faced with the agency beginning the process with me. [00:05:05] Speaker 01: I don't think I slept for weeks after that motion was filed. [00:05:09] Speaker 01: That and so many other actions form the basis of my complaint. [00:05:14] Speaker 01: Not just the acts that were perpetrated by persons under the authority of the Deputy General Counsel and Human Resources staff, but also their failure to investigate and to take corrective action. [00:05:26] Speaker 02: In what the parties are calling Baird 1, we quoted Morgan for the requisite linking between episodes that are claimed to create part of a hostile environment. [00:05:44] Speaker 02: same type of employment actions, frequency, perpetration by the same managers. [00:05:51] Speaker 02: And I didn't see much of an effort in your brief to try to pull together all the alleged episodes in terms of those criteria. [00:06:02] Speaker 01: Well, what you quoted, Your Honor, is what Morgan says is if, for example, what Morgan made clear is there's no specific criteria. [00:06:11] Speaker 01: It is truly looking at the environment and what's happening in the environment. [00:06:16] Speaker 01: And my complaints, both of them allege that this was action that was perpetrated, initiated by the General Counsel and Human Resources staff. [00:06:25] Speaker 02: I say that repeatedly. [00:06:28] Speaker 02: First place, general counsel staff covers the multitude. [00:06:33] Speaker 02: So I understand you try to sort of focus it on the people at the top for failure to investigate adequately and remedy problems. [00:06:49] Speaker 02: But that surely can't make it, because if you have a whole [00:06:56] Speaker 02: I mean, that would turn every totally scattered set of episodes with a different perpetrator for each one of them across the agency. [00:07:08] Speaker 02: That would turn all of those into a hostile work environment. [00:07:13] Speaker 02: I can't think. [00:07:14] Speaker 02: It's available to everybody. [00:07:16] Speaker 01: Except for one fact in this case that's critical, Your Honor. [00:07:19] Speaker 01: And that is what the complaint shows, fomenting the workplace. [00:07:22] Speaker 01: There's evidence of, for example, Moreno meeting someone at lunch and saying, oh, why are you associating with her? [00:07:27] Speaker 01: I'm investigating her. [00:07:29] Speaker 01: Schwartz in front of me saying, overthrow her. [00:07:31] Speaker 01: She gives us nothing in EEO context. [00:07:33] Speaker 01: The general counsel saying, well, tell her to stop suing her. [00:07:35] Speaker 01: Then I'll tell people to stop. [00:07:37] Speaker 01: There's fomenting that's happening in the workplace. [00:07:39] Speaker 01: This is not disconnected, Your Honor. [00:07:41] Speaker 01: I get all the reasonable inferences drawn from the facts of allegations in the complaint. [00:07:46] Speaker 01: And when you have evidence that's in this case of persons who have been found, for example, as violating my rights on the Title VII, Latimer, Hertz, Resnick, [00:07:57] Speaker 01: Taking action, for example, Latimer, through his subordinate, making false allegations to my supervisor. [00:08:04] Speaker 01: Not just one subordinate. [00:08:06] Speaker 01: Latimer goes from representing the agency in a case I testified in in 2002, to being responsible for the investigation of the polyglot incident in the human resources department, and then into the pension area where I work. [00:08:19] Speaker 01: And each sub, you see his subordinates acting, and it's reasonable to infer from the [00:08:24] Speaker 01: complaints, Your Honor, that they're acting because of the agency's actions. [00:08:28] Speaker 01: The agency allowed allegations like litigation and due hallucinations to be disseminated. [00:08:33] Speaker 02: Your Honor, painting a picture of someone... You're talking about, in effect, the duty on the part of the agency to monitor everything that's going on and to [00:08:49] Speaker 02: start a proceeding, I guess, whenever it hears that somebody feels that something has happened that could be an element of a hostile environment claim, which can reach pretty low in terms of triviality where it's standing alone. [00:09:07] Speaker 01: You are under two things about that. [00:09:09] Speaker 01: One, you've already said in your first decision the rules of the agency are benefits of employment that are subject to Title VII. [00:09:15] Speaker 02: And we also said that didn't make any difference in the case. [00:09:18] Speaker 01: In discrimination and in retaliation claims. [00:09:22] Speaker 01: Not in a hostile work environment where in Brooks v. Gurnerman you recently said you aggregate the acts. [00:09:27] Speaker 01: I think Burlington Northern is instructive for this. [00:09:30] Speaker 01: You don't look to the underlying act. [00:09:32] Speaker 01: When the claim of retaliation is made, you look to the act itself, and here the failure to investigate flows from the agency's rules that you've already determined [00:09:41] Speaker 01: on my work, provide an obligation. [00:09:43] Speaker 01: The agency said in Taylor v. Soul is that when you use the complaint procedure, they have an obligation to investigate. [00:09:50] Speaker 01: Probably the best evidence of them not complying with that obligation is the acts continue, and they continue to today. [00:09:56] Speaker 01: So it's not necessarily whether or not each individual act would maintain a claim. [00:10:01] Speaker 01: It's a hostile work environment claim that you recently said, Your Honor, is aggregated for the purposes of examining the hostile work environment [00:10:09] Speaker 01: to determine whether or not there's an unlawful employment practice. [00:10:12] Speaker 01: The acts are looked at, and what I allege is, if you have these powerful officials encouraging and fomenting with direct evidence of the retaliatory animals, that is relevant. [00:10:25] Speaker 01: The fact that they're sophisticated and knowledgeable about Title VII is also relevant. [00:10:29] Speaker 01: Harris makes it clear, and Morgan makes it clear, they're not exhaustive lists. [00:10:34] Speaker 01: In fact, in the concurring opinion in Harris, Justice Scalia bemoaned the [00:10:40] Speaker 01: the fact that the court could not fashion anything more concrete. [00:10:44] Speaker 01: And it's a matter of looking in my situation at the disparity between the way I'm treated versus the way other complaints are treated. [00:10:52] Speaker 01: It's an issue of not just the underlying act, but looking at the totality of the circumstances, which is something neither court did in their [00:11:01] Speaker 01: decisions. [00:11:03] Speaker 01: What's really going on in my environment when the general counsel refuses to act when he has an affirmative obligation to act and we have evidence that they've already been found [00:11:13] Speaker 01: violated their rights and obligations to conduct an objective and partial investigation into my complaint. [00:11:19] Speaker 01: Those are relevant facts that support the claim that these acts are not so sophisticated to escape the review of Title VII. [00:11:27] Speaker 01: They are relevant. [00:11:29] Speaker 01: They are part of the unlawful employment practice. [00:11:32] Speaker 01: And on the second point, Joanne, I see I'm out of time, but if I could just address the second point. [00:11:36] Speaker 01: Under Harris, you determine the severity by looking at someone in my situation. [00:11:43] Speaker 01: The psychological harm is real. [00:11:45] Speaker 01: The effect to my reputation in the workplace is real. [00:11:48] Speaker 01: The agency allowed these acts, litigation-induced hallucinations and psychotics, to continue unabated because they took no action to address and correct it. [00:11:58] Speaker 01: And if the court has no other questions, I yield. [00:12:00] Speaker 01: All right. [00:12:00] Speaker 04: We'll give you a minute and reply. [00:12:02] Speaker 04: Ms. [00:12:02] Speaker 04: Lyons? [00:12:11] Speaker 03: Good morning. [00:12:12] Speaker 03: May I please the court? [00:12:14] Speaker 03: The allegations of occasional discord in Ms. [00:12:16] Speaker 03: Baird's workplace fall beneath the threshold for a retaliatory hostile work environment, primarily because the things about which she complains are fairly ordinary tribulations for an attorney involved in union activities, intra-union political disputes, and as a person who frequently represents employees in administrative litigation against the agency, as well as performing her duties as an ERISA and bankruptcy attorney. [00:12:40] Speaker 03: In short, [00:12:41] Speaker 03: the context of this workplace matters a great deal. [00:12:46] Speaker 03: Because the incidents alleged here were not abusive, and they were collectively not intimidating, insulting, or ridiculing, and with a sufficient nexus to her protected activity, dismissal is appropriate here. [00:13:01] Speaker 03: Ultimately, the totality of the allegations consists mainly of lapses in professionalism or discourteous behavior, typically arising in conflict-laden situations [00:13:10] Speaker 03: among, let's be honest, lawyers with maybe type A personalities. [00:13:14] Speaker 03: And they fail to satisfy the objective standard for severity and pervasiveness. [00:13:19] Speaker 03: And one place I'd like to start in terms of responding is this notion of what workplace hostility we're talking about. [00:13:27] Speaker 03: The proper focus should be on Ms. [00:13:31] Speaker 03: Baird's working environment, not the entire working environment at PBGC. [00:13:35] Speaker 03: In other words, if somebody sends an email [00:13:39] Speaker 03: to somebody else that Ms. [00:13:40] Speaker 03: Baird is not a recipient on and never sees, Title VII wouldn't reach a disparaging comment about her performance or her, it wouldn't create, it wouldn't contribute to a hostile work environment for her. [00:13:52] Speaker 03: And that's the key. [00:13:53] Speaker 03: It's a hostile work environment for her. [00:13:55] Speaker 03: the kinds of things that she's talked about today with the one email. [00:13:59] Speaker 04: Well, wait a minute. [00:14:00] Speaker 04: Why wouldn't it? [00:14:01] Speaker 04: Even if she doesn't see it and I get an email from a co-worker that makes some snide remark about someone else and I'm thinking, you know, that could happen to me if I complain about this or if I do such and such. [00:14:15] Speaker 04: So the fact that she doesn't see it, I don't see if it's, we're looking at, you know, would it dissuade a reasonable person. [00:14:23] Speaker 03: Then I think what we're talking about is what impact that email might have on your working environment. [00:14:27] Speaker 03: And the key here is to define the working environment and the allegations, and then you have to look for a nexus of their connectedness, and then whether they're severe and pervasive. [00:14:37] Speaker 03: And a single isolated remark, I would submit, can rarely, if ever, except if it's, as we know from one case in this, the Fannie Mae case, one word in the workplace is absolutely [00:14:47] Speaker 03: forbidden. [00:14:50] Speaker 03: But we have cases like Baylock and Brooks where we've got supervisors yelling at co-workers and engaging in various, you know, email correspondence, flinging a heavy notebook at an employee, and doing things that are more directly related to the employee's employment. [00:15:09] Speaker 03: And even [00:15:13] Speaker 03: Those kinds of things have all been held by the court to fall beneath the level for Title VII. [00:15:18] Speaker 03: What we have here... [00:15:19] Speaker 03: is a fairly classic case of Title VII or Ms. [00:15:22] Speaker 03: Barrett trying to use the agency's civility code to create Title VII liability. [00:15:27] Speaker 03: And that's something the Supreme Court has said is inappropriate for the very reasons that the court has talked about this morning, which is it gives rise to a hostile work environment every time somebody looks at somebody funny in the morning or doesn't say good morning or says good morning to one employee but not to another. [00:15:44] Speaker 03: There's a threshold here. [00:15:47] Speaker 03: of severity and pervasiveness that is simply absent in this case. [00:15:53] Speaker 03: With regard to the specific incidents of an attorney during a deposition, for example, on a break, becoming frustrated and pounding a table, this court is familiar with the litigation scene. [00:16:05] Speaker 03: That is in the context [00:16:07] Speaker 03: not particularly physically intimidating if the table separates you and there's nothing else to describe, nor are there allegations that create a situation that you can envision as intimidating, ridiculing, or insulting, because there are no words offered. [00:16:25] Speaker 03: With regard to the poligot incident, which is where Ms. [00:16:27] Speaker 03: Baird began this morning back in 2002, [00:16:30] Speaker 03: I would note that Ms. [00:16:32] Speaker 03: Baird filed a lawsuit arising out of that incident in 2003, and she voluntarily dismissed it with prejudice. [00:16:39] Speaker 03: So I'm not saying it can't be considered at all, but it isn't logically connected to any of the events here. [00:16:46] Speaker 03: It's also fairly remote in time. [00:16:48] Speaker 03: The allegations considered by the district court here between 2005 and 2009, none of them involve Mr. Peliga again. [00:16:55] Speaker 02: Judge Huvel held that that was precluded. [00:17:04] Speaker 03: Judge Huvel [00:17:09] Speaker 03: I believe Judge Chevelle did not consider that to be an untimely event. [00:17:13] Speaker 03: I think because the case had been dismissed, Judge Chevelle had handled the 2003 litigation. [00:17:19] Speaker 03: She was familiar with it. [00:17:21] Speaker 03: After the agency moved for summary judgment, Ms. [00:17:23] Speaker 03: Perrin voluntarily dismissed with prejudice, so I believe she did not consider it on that basis. [00:17:29] Speaker 03: It's also, even if that's not the reason, it's not connected logically to any of these other incidents. [00:17:36] Speaker 03: It's separated in time. [00:17:37] Speaker 03: They're completely different people. [00:17:39] Speaker 03: And there is no other incident alleged that's as physically intimidating. [00:17:44] Speaker 03: The Peliga incident is somewhat different because it's in a confined space in her office. [00:17:49] Speaker 03: She doesn't appear to have an easy means of escape. [00:17:51] Speaker 03: And it seems that Mr. Peliga took a step or two toward her. [00:17:55] Speaker 03: So it's a fundamentally different kind of thing. [00:17:58] Speaker 03: If there are no further questions, we would ask that the case be affirmed. [00:18:02] Speaker 03: All right. [00:18:03] Speaker 03: Thank you. [00:18:09] Speaker 01: Your Honor, the Peligar Incident explains why this court should independently remand each case. [00:18:16] Speaker 01: The District Court applied risk to the matter. [00:18:18] Speaker 01: Judge Walton expressly judged Havel implicitly by determining that the Peligar Incident could not be a part of it because in footnote four she says, I've already recovered, which isn't true, and that it was in prior litigation. [00:18:32] Speaker 01: That runs afoul of Morgan that says you can use earlier acts to [00:18:38] Speaker 01: to prove the hostile work environment, if it's relevant, if it's sufficiently related. [00:18:42] Speaker 01: So that's an independent basis for reversal. [00:18:45] Speaker 01: More importantly, Harris and Morgan makes clear it is the totality of the circumstances that's determined. [00:18:52] Speaker 01: It's not whether or not the employer has a reasonable person would be dissuaded. [00:18:58] Speaker 01: Hustle work environment has a standard it requires you to determine whether or not the terms and conditions of my employment [00:19:05] Speaker 01: were impacted. [00:19:06] Speaker 01: And that's exactly what happened here. [00:19:08] Speaker 01: The rules, as the court said in your first decision, are employment benefits. [00:19:13] Speaker 01: It is clear the agency didn't comply with their obligation and that they treated my claim very differently from the complaints of other employees, including the employee in Taylor versus Solis and so many others that are included in the complaint. [00:19:24] Speaker 01: These are not ordinary tribulations of the workplace. [00:19:27] Speaker 01: There's no litigation exception. [00:19:28] Speaker 01: There's no exception, Your Honor, [00:19:32] Speaker 01: actions that may have occurred because of the agency's determination to retaliate and to be sophisticated enough to do so in ways that may normally be ordinary tribulations, but in the context in which this has happened, attorneys can, in fact, are obligated under the agency's rules to comply with it. [00:19:50] Speaker 01: And I request that the court, in its deliberation, consider the totality of the circumstances in my case and remand both complaints to the district court. [00:19:57] Speaker 01: Thank you.