[00:00:01] Speaker 03:
case over 15-5034, Prince Johnson Appellant vs. Thomas Icares, Secretary, Department of Labor.

[00:00:08] Speaker 03:
Ms.

[00:00:09] Speaker 03:
Ralston for the Appellant.

[00:01:40] Speaker 00:
Can you can you speak up?

[00:01:46] Speaker 01:
Yes, I'm sorry I Would like to reserve two minutes for if you want to lower the podium if that's uncomfortable There's a button on the right and then we'll just push it down You can bring it down further if that's not comfortable There you go

[00:02:14] Speaker 00:
Mr. Johnson's case is a fairly straightforward Title VII discrimination case.

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He is an African American black male.

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He has alleged that his employment was discriminatory when he was fired.

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And the case is before you because

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There was dismissed on summary judgment when there was clear evidence of pretext.

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And I think that really that's what the main issues are in terms of the evidence that the lower court required that Mr. Johnson prove.

[00:02:51] Speaker 01:
Now, Ms.

[00:02:51] Speaker 01:
Wilson, you don't dispute that at least one of the proffered legitimate non-discriminatory reasons offered by the government is that Mr. Johnson was not working to quality in two senses, that his work had a lot of errors and that his work was sometimes late.

[00:03:13] Speaker 01:
So they make that contention.

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Is there anything in the record to place into material dispute under Rule 56 those proffered reasons?

[00:03:26] Speaker 00:
Yes.

[00:03:28] Speaker 00:
In terms of Mr. Johnson's job performance, and that being a dispute, well, obviously, he disputes that.

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And that was sort of it.

[00:03:38] Speaker 01:
But that doesn't help you in your room.

[00:03:40] Speaker 00:
Does he, though?

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I mean, I'm sorry.

[00:03:42] Speaker 01:
He did.

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I mean, he testified that he got praise, and there were emails that said, good job, and that he wasn't getting anything back that said.

[00:03:52] Speaker 04:
For a worker to get praise.

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Projects A, B, and C does not mean that the worker did not completely foul up projects D through Z. That's true as well.

[00:04:02] Speaker 00:
However, in terms of performance, Loretta Alston testified in very clear terms that Mr. Hecker, who is one of the people that is alleging that Mr. Johnson's performance was not sufficient, that Mr. Hecker tasked Mr. Johnson to train Loretta Alston.

[00:04:22] Speaker 00:
and in terms of Excel and spreadsheets and inputting the information and to tell her how to do their job because they had the same job and he was very competent.

[00:04:30] Speaker 01:
Again, I think that's a little bit apples and oranges in the sense that I could be very adept at the use of Excel, but when it comes time for me to put a lot of data together and hand it in on a deadline, I might do so in a way that wasn't very attentive and that wasn't

[00:04:45] Speaker 01:
sufficiently prompt.

[00:04:47] Speaker 01:
And so the question is, given the specificity of those claims, is there anything in the record that says, OK, on which occasions, or I was never once late, or the only time I was late was this, and the only errors that were ever pointed out to me were these, and I promptly fixed them.

[00:05:07] Speaker 01:
I mean, anything along the lines that's actually taking

[00:05:12] Speaker 01:
creating a factual dispute about what the district is saying or what the government is saying was the basis.

[00:05:20] Speaker 00:
In terms of the timeliness in his actual spreadsheets, there is not a lot of work product, I guess, in the record in general.

[00:05:30] Speaker 00:
And there's some of these graphs, and it's saying, oh, well, you didn't do this, or you weren't included in this.

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But there's also not a lot in documents stating, oh, Mr. Johnson, you really messed this up, and I can't believe that you did this so poorly.

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It is clear though in the record that he did request more guidance.

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There were no performance standards.

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He went and said, what do I need to do?

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What can I do to better myself?

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What is it that you require of me?

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And that he was not given feedback.

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He was not helped.

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He was not assisted.

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And that he wasn't trying to do whatever it was that was necessary to have his work performance.

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In addition, he was converted, which is to a career conditional employee from his 60-day appointment, which it is undisputed that you are converted when you are meeting your standards and quality.

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Is there any evidence contradicting the district's story on that?

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I believe so.

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I think that Mr. Burke, his testimony is false.

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He stated that he inadvertently signed the papers converting Johnson.

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At the time, he didn't understand signing the papers were to convert Johnson to career status.

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That was in his brief at page seven.

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And then later, he reviews the documents more closely.

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And it appeared to convert Johnson from temporary into career, which was totally consistent.

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This is Burke's testimony with what his expectations were.

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However, in his deposition, he also says that he felt pressure and that Mr. Johnson wasn't going to get paid.

[00:07:09] Speaker 00:
But in the documents and in the record, there's a June 30 email to him that says, the appointment for Johnson ended on June 1.

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Would you like to convert him to career conditional appointment?

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And it says, requesting you that you respond as soon as possible in order to process his actions, we can receive salary or payment.

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If you have any questions, call this person.

[00:07:28] Speaker 00:
It doesn't seem to be overly pressing.

[00:07:30] Speaker 00:
In addition, Burke responds via email in writing, I request that Mr. Johnson be converted to a career conditional appointment.

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He is not unclear about that.

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He is no.

[00:07:41] Speaker 01:
But isn't the point that he doesn't have the ultimate authority to do that?

[00:07:46] Speaker 01:
No, he does.

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Other supervisors above him say, no, no, don't do that.

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Burke is the supervisor with the authority.

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And he understood what conversion to career conditional meant.

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And why is it taken back?

[00:08:01] Speaker 00:
And he takes it back because Pamela Langley, who is the first-line supervisor to Johnson, who is the person that Johnson has accused of being the person discriminating, said that that should not have happened and had it rescinded.

[00:08:18] Speaker 03:
Let me ask you.

[00:08:19] Speaker 03:
The employer gave a second reason for firing a plaintiff, which is that he was argumentative.

[00:08:26] Speaker 00:
I'm sorry.

[00:08:27] Speaker 03:
Yeah.

[00:08:28] Speaker 03:
So what's the same question about that that Judge Pillard asked you about the quality of his work?

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What's the record evidence that suggests a genuine issue of material effect on that question?

[00:08:38] Speaker 00:
The argumentative issue is something I think that just has come out.

[00:08:43] Speaker 00:
Just what?

[00:08:43] Speaker 00:
The testimony has been so inconsistent with that.

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I mean, on October 10th is when

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Johnson was advised that they were terminating his employment.

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Johnson met with Burke afterwards, and this is when Burke tells Johnson the reason for why he approved the termination is to support the supervisor, which was Pamela Langley.

[00:09:01] Speaker 00:
November 2nd, 2006, a little under a month later, Burke interacts with the EEO.

[00:09:09] Speaker 00:
Why did you fire Johnson?

[00:09:11] Speaker 00:
He says he was a good guy, very favorable nature in the workplace.

[00:09:14] Speaker 00:
Everyone says he's a great guy, painful for everyone.

[00:09:18] Speaker 00:
When they ask him specifically, what about his attitude, Burke says Johnson's supervisor has said that we have a problem with his attitude.

[00:09:26] Speaker 03:
Wait, wait, wait.

[00:09:26] Speaker 03:
What?

[00:09:27] Speaker 03:
I just didn't understand you.

[00:09:30] Speaker 00:
Just read that.

[00:09:30] Speaker 00:
Johnson's supervisor, which is Langley, has said that we have a problem with his attitude.

[00:09:35] Speaker 03:
Oh, I see.

[00:09:36] Speaker 00:
OK.

[00:09:36] Speaker 00:
And then the only thing that Burke identifies in terms of Johnson's attitude is

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things that he wished Johnson had not done when Johnson said to him, I will watch your back, which Burke then tells the EO that he talks that up as a mistake and he kind of blew it off, which is not a big deal.

[00:09:55] Speaker 00:
Fast forward to April of 2007, Burke's affidavit, he has a totally different

[00:10:01] Speaker 00:
opinion about Johnson and he was determining Johnson based on his own dissatisfaction with Johnson's alleged argumentative behavior because he was now a personal witness to that and that Johnson's alleged argumentative behavior negatively impacted the workforce which just before that he had said that Johnson's a very favorable guy in his favorable nature in the workforce.

[00:10:24] Speaker 00:
So he also mentions that

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Johnson often sought opportunities to speak with him in a way to undermine his supervisor, which is Langley, made him very uncomfortable.

[00:10:36] Speaker 00:
And he's referring now to what he had said before, that he chalked up as a mistake and it was no big deal.

[00:10:42] Speaker 00:
In Burke's deposition in 2012, now he's taking the position that

[00:10:50] Speaker 00:
that he looked personally at Johnson's work and found errors.

[00:10:54] Speaker 00:
Before that, he's always referenced that these were reported work deficiencies, and that he never really claimed to have any involvement with his work.

[00:11:04] Speaker 00:
But in terms of argumentative demeanor, that is completely disputed.

[00:11:07] Speaker 00:
All of his coworkers say that he never exhibited that.

[00:11:11] Speaker 03:
Of course, the argument isn't that he was argumentative with his coworkers.

[00:11:15] Speaker 03:
It was that he was argumentative with a supervisor.

[00:11:18] Speaker 03:
And the coworkers presumably wouldn't know that.

[00:11:19] Speaker 00:
They did, there was an argument that he was, or they did say that he was argumentative with his coworkers and peers.

[00:11:26] Speaker 00:
And many of his coworkers said that they worked, sat with him, sat directly beside him and observed his behavior all the time and that he was not argumentative.

[00:11:40] Speaker 00:
In terms of, I mean those are the two reasons really given for his termination.

[00:12:06] Speaker 02:
Thank you, Your Honor.

[00:12:07] Speaker 02:
May it please the court.

[00:12:08] Speaker 02:
Damon Tay for the defendant.

[00:12:12] Speaker 02:
As the court's questions have illustrated, we believe this case is, as plaintiff's counsel said, pretty straightforward.

[00:12:21] Speaker 02:
Based on the number of cases we see, this is a case where actually the weight of the evidence is overwhelming and well-documented.

[00:12:30] Speaker 02:
I'd like to return to a point that opposing counsel just mentioned at the end where she said that

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The coworkers didn't have any reported problems with his professionalism, his demeanor.

[00:12:41] Speaker 02:
Well, that's just false.

[00:12:43] Speaker 02:
Mr. Hecker, the very first person that he was assigned to work for, was a coworker.

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He was a mentor of sorts.

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And he reported that on a few occasions when Johnson was confronted with marginal work, he would become defensive.

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This is not just a single individual reporting a problem that one could choose to believe or ascribe a different motive to.

[00:13:04] Speaker 04:
Maybe Ms.

[00:13:04] Speaker 04:
Ralston doesn't include a supervisor as a co-worker.

[00:13:10] Speaker 02:
Well, there are supervisors.

[00:13:12] Speaker 02:
There's Langley, there's Burke.

[00:13:14] Speaker 02:
Both of them observe both the performance issues and the demeanor problems.

[00:13:19] Speaker 02:
There's Hecker, who is a co-worker.

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There's Daven, who's a training expert.

[00:13:23] Speaker 02:
I'm not sure which camp you put him in.

[00:13:27] Speaker 02:
Even Mr. Parker, Burke's deputy, observed the demeanor issues here.

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So this is a case where literally the only evidence

[00:13:35] Speaker 02:
that there were not demeanor issues and there were not performance issues is the testimony of the plaintiff himself, which this court's precedent says is not sufficient to survive summary judgment.

[00:13:47] Speaker 01:
This court's precedent in what case?

[00:13:50] Speaker 01:
I've seen several of the district courts have made that have so stated, but is that actually the DC Circuit law that the plaintiff's own testimony is to be discredited?

[00:14:07] Speaker 02:
Not in all instances.

[00:14:08] Speaker 02:
The case we cite for that is the Ginger case, 517, F3, 1340, where the court said, a mere unsubstantiated allegation creates no genuine issue of fact and will not withstand summary judgment.

[00:14:20] Speaker 02:
To the extent that the record is not full of documents exemplifying good work product, well, it's plaintiff's burden of proof to deduce evidence to raise a genuine issue of material fact.

[00:14:33] Speaker 03:
No, plaintiff.

[00:14:33] Speaker 03:
Let me just ask you about two things that the plaintiff cites.

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There's testimony from the team leader that the plaintiff's work was, quote, excellent and timely.

[00:14:43] Speaker 03:
You didn't respond to that in your brief.

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And testimony from a coworker that he was, quote, very competent.

[00:14:52] Speaker 03:
That's not enough to create a genuine issue.

[00:14:53] Speaker 02:
The team leader, do you happen to know the name of the individual they're talking about there?

[00:14:57] Speaker 02:
I just don't have the briefing in front of me.

[00:14:59] Speaker 02:
Or have it engaged?

[00:15:00] Speaker 02:
No.

[00:15:02] Speaker 02:
You didn't respond to it in brief.

[00:15:04] Speaker 02:
OK.

[00:15:05] Speaker 02:
Well, as far as the team leader saying that his work was, did your honor say, very good?

[00:15:13] Speaker 03:
Excellent.

[00:15:16] Speaker 03:
And timely.

[00:15:17] Speaker 03:
Quote, excellent and timely.

[00:15:19] Speaker 03:
Close quote.

[00:15:21] Speaker 03:
Why isn't that enough all by itself?

[00:15:24] Speaker 03:
It's an affidavit.

[00:15:25] Speaker 03:
It's testimony.

[00:15:26] Speaker 03:
It's sworn testimony.

[00:15:28] Speaker 03:
Just on the question of summary judgment.

[00:15:32] Speaker 03:
I mean, you may win on the merits when you get to trial, but why isn't that enough on this issue?

[00:15:36] Speaker 02:
Sure.

[00:15:36] Speaker 02:
Well, a sample size of one, it's much like the problem with the co-worker testimony.

[00:15:42] Speaker 02:
The team leader, him or herself, I don't know who it is.

[00:15:44] Speaker 03:
I don't know of any case that says that, but this is the team leader.

[00:15:48] Speaker 03:
And then there's a second co-worker that says he was, quote, very competent.

[00:15:54] Speaker 03:
So there's two pieces of evidence right there.

[00:15:56] Speaker 02:
Well, there's not evidence that the team leader was witness to a demeanor issue.

[00:16:01] Speaker 03:
I'm not asking you about the demeanor.

[00:16:03] Speaker 03:
I was asking you about the other reason for terminating him.

[00:16:09] Speaker 03:
That is, his work was not competent.

[00:16:12] Speaker 03:
Now, if your answer is, OK, that's enough.

[00:16:14] Speaker 03:
These two pieces of evidence are enough to create a genuine issue on the question of equality of work.

[00:16:19] Speaker 03:
But there's no genuine issue on his argumentativeness.

[00:16:23] Speaker 03:
That's a different argument.

[00:16:26] Speaker 03:
But by going to argumentativeness, you can see that these are enough.

[00:16:31] Speaker 02:
No, not at all.

[00:16:32] Speaker 02:
Why not?

[00:16:34] Speaker 02:
Because there's no testimony by that individual.

[00:16:37] Speaker 02:
By what individual?

[00:16:40] Speaker 02:
I'm sorry, I don't mean to be difficult.

[00:16:41] Speaker 02:
I'm just trying to explain.

[00:16:43] Speaker 02:
that the individual, the team leader, whose testimony you're now quoting, there is no testimony by that team leader that he was privy to the work that was reviewed by Hecker and Daven and Langley and these other people.

[00:16:55] Speaker 02:
It may well be the case that in the team leader's own experience, his work was.

[00:17:00] Speaker 03:
How do you know that, by the way?

[00:17:02] Speaker 03:
Do you know that for sure?

[00:17:02] Speaker 03:
I mean, that's a good response if it's true.

[00:17:06] Speaker 02:
Well, it's true.

[00:17:08] Speaker 02:
I'm not aware of anything in the record in which he says that he reviewed the work that was submitted that led to complaints by all of the people who we cite on this question.

[00:17:18] Speaker 02:
So it may well be that in his experience the work was good, but in many other people's experience, including Burke and Langley, who hired this guy very recently, it wasn't.

[00:17:29] Speaker 02:
So not everybody sees everything, which is also my response to the other coworker testimony.

[00:17:38] Speaker 02:
I'm not sure which coworker in specific she's talking about.

[00:17:41] Speaker 02:
There were a couple.

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But most of the coworkers say that they were not involved in the work.

[00:17:48] Speaker 02:
The one coworker that is in a different category is Ms.

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Alston.

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I believe that's the one plaintiff's counsel referred to.

[00:17:54] Speaker 02:
And Ms.

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Alston was, as plaintiff's counsel pointed out, assigned to

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I guess get some instruction from Mr. Johnson when she first showed up about how to do things.

[00:18:05] Speaker 02:
And Ms.

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Alston testified that he seemed to do that well.

[00:18:11] Speaker 02:
And subsequently, she has not had performance issues.

[00:18:14] Speaker 02:
But in our view, that's just not enough to get there because Ms.

[00:18:18] Speaker 02:
Alston was not privy to the work that Mr. Johnson submitted to his supervisors and that he conducted in conjunction with other coworkers like Mr. Hecker and Mr. Davin.

[00:18:29] Speaker 02:
She was not privy to the conversations that reveal the defensive and argumentative demeanor that so many of these witnesses have pointed to.

[00:18:40] Speaker 02:
So, given all of that, in our view, the district court got it right here.

[00:18:44] Speaker 02:
There's just not enough evidence in the record to call these explanations into question.

[00:18:50] Speaker 02:
I would like to talk about what I think is the most confusing part of this case, which is how did this conversion status issue arise?

[00:19:00] Speaker 02:
And going through the record, it's pretty clear what happened.

[00:19:04] Speaker 02:
The initial appointment is for 60 days.

[00:19:06] Speaker 02:
That lapsed on June 1st of this particular year.

[00:19:12] Speaker 02:
JA-274, there is a document dated May 25th, so about a week before this provisional status is supposed to end, that it's an SF-50 in which an HR officer classifies him as career conditional as of June 2nd.

[00:19:29] Speaker 02:
This was not signed by Mr. Burke, there's no evidence that he ever saw it.

[00:19:33] Speaker 02:
But several weeks after, apparently, HR thought that he was going to become career conditional, on June 30th, this HR employee came to Mr. Burke, maybe it's the end of the month and payroll had to happen, and said, verbally, it's urgent he sign this.

[00:19:49] Speaker 02:
That was his testimony, that there was verbal pressure.

[00:19:52] Speaker 02:
But it's not just oral testimony, it's documented.

[00:19:56] Speaker 02:
The email that plaintiff's counsel cited, which was a joint appendix 276, says,

[00:20:01] Speaker 02:
The Office of HR Consulting and Operations urge you to please respond as soon as possible, as soon as possible, it says, in order to process the action so the employee can receive salary payment.

[00:20:16] Speaker 02:
Now, it didn't say, and I think this is the source of the confusion, it didn't say would you like to convert him to a career conditional or would you like to extend his provisional status.

[00:20:27] Speaker 02:
That was not a choice presented to him.

[00:20:29] Speaker 02:
But it clearly was a choice because

[00:20:31] Speaker 02:
in Joint Appendix 277, ultimately they did extend his temporary appointment for a year.

[00:20:38] Speaker 02:
He didn't make it to the end of that year, but that was an option.

[00:20:41] Speaker 02:
I think the confusion here and the explanation is that he got this pressure saying that he needed to sign this converting the individual to a career conditional, but there was another option out there, that is extending the temporary status, and he didn't understand why he was getting pressured in this one direction.

[00:20:58] Speaker 01:
Assuming that the district court might have

[00:21:03] Speaker 01:
somewhat overstated the implications of our opinion in Ginger by characterizing the plaintiff's own testimony as self-serving and therefore to be discredited.

[00:21:15] Speaker 01:
Why can't we take the plaintiff's own testimony that he worked well and timely and didn't commit an excess of errors on any of the projects that the employer

[00:21:30] Speaker 01:
was criticizing, why doesn't that alone create a material issue of fact?

[00:21:35] Speaker 01:
I mean, after all, these are the two parties to these transactions.

[00:21:40] Speaker 02:
Well, the question ultimately is whether any reasonable jury could find that based on the evidence in the record that plaintiff would carry this burden of proving discrimination on the grounds of an impermissible factor.

[00:21:56] Speaker 02:
And here, there is, I mean, the evidence is overwhelming, but that doesn't respond to your question exactly, because you say, well, why couldn't the jury just disbelieve all of that?

[00:22:06] Speaker 02:
The issue is that there's nothing in the record, nothing in plaintiff's testimony, nothing in anybody else's testimony, and this is what the district court picked up on, that ties any of this to any racial grounds or any other impermissible grounds.

[00:22:19] Speaker 02:
And that's ultimately the question.

[00:22:20] Speaker 01:
Well, isn't he allowed to, as part of raising an inference of discrimination, to say the reason that they've given is a hollow reason?

[00:22:29] Speaker 01:
And this court has said in numerous cases, including in our en banc decision in Acre, that an inference arising from a false proper reason can be a pretext for discrimination, and that, in some cases, can alone be enough.

[00:22:44] Speaker 01:
So if he's saying,

[00:22:46] Speaker 01:
No, I did everything on time and I did a high quality of work and I learned and I got better and they're making that up.

[00:22:56] Speaker 01:
Surely that can be enough.

[00:22:58] Speaker 01:
And what about his response is inadequate, assuming that a jury has to be the ultimate decision maker on whether his response is to be believed?

[00:23:09] Speaker 02:
As a practical matter, Your Honor, I'm unaware of any discrimination case in which the plaintiff agrees with the reason that the employer provides.

[00:23:18] Speaker 02:
every case the employee testifies under oath that they did a great job.

[00:23:24] Speaker 01:
Not necessarily.

[00:23:25] Speaker 01:
Sometimes people are testifying under oath.

[00:23:30] Speaker 01:
What about a case if instead of talking about late and error prone work, what if

[00:23:35] Speaker 01:
Mr. Johnson said, when everybody else went home, they gave me a broom and told me, you know, because I'm a black man, I should sweep up.

[00:23:43] Speaker 01:
And he's the only person there.

[00:23:45] Speaker 01:
And there are no cameras.

[00:23:45] Speaker 01:
And he has to testify.

[00:23:47] Speaker 01:
That's what happened.

[00:23:48] Speaker 01:
And the employer says, no, that didn't never happen.

[00:23:50] Speaker 01:
I mean, of course we rely on the plaintiff's testimony and have to let that go to a jury.

[00:23:55] Speaker 01:
And I guess the question is, what, I mean, there may well be something different, but I'm just asking for your help on what, if he's saying, no, no, I did my work well, or did he not so say?

[00:24:05] Speaker 01:
Did he not ever say I did my work well?

[00:24:10] Speaker 02:
He did not rebut the specific instances.

[00:24:14] Speaker 02:
For example, Mr. Davin, JA255, said that 11 versions of a spreadsheet were required to be produced.

[00:24:22] Speaker 02:
He didn't say that that's not true.

[00:24:24] Speaker 01:
Or give an alternative explanation.

[00:24:26] Speaker 02:
Right, maybe his view is that Davin was unreasonably demanding or exacting.

[00:24:31] Speaker 01:
But he didn't say that either.

[00:24:32] Speaker 02:
No, he didn't say that either.

[00:24:34] Speaker 02:
And it's true for each of the instances here.

[00:24:36] Speaker 02:
Now, the problem with a lot of these things, particularly the demeanor issues, is that

[00:24:40] Speaker 02:
These are oral conversations.

[00:24:42] Speaker 02:
I mean, people are not saving iterative drafts of documents because one day this may wind up in court.

[00:24:48] Speaker 02:
This is the sort of thing that you have to look to who is saying things.

[00:24:53] Speaker 02:
And it's not just both supervisors who, again, this is why same-actor inference is important here, because the two supervisors who fired him hired him, and Mr. Burke, I mean, he's in the same protected class, and he essentially recruited the guy and helped him to apply.

[00:25:10] Speaker 02:
We get no explanation at all from the plaintiff as to why he suddenly would turn on a dime and start discriminating against another black man.

[00:25:17] Speaker 02:
Just in some, Your Honor, it just doesn't add up here.

[00:25:22] Speaker 01:
I find the somewhat troubling, and I'm not sure that I've

[00:25:27] Speaker 01:
been able to discern precisely the race or ethnicity of each of the actors in the case.

[00:25:32] Speaker 01:
But it does appear that there's something of a pattern of the people who found him to be defensive and difficult to deal with were non-black.

[00:25:42] Speaker 01:
And the people who thought that he was quite agreeable and professional in his demeanor were typically, I think, minority.

[00:25:52] Speaker 01:
Is that accurate?

[00:25:55] Speaker 01:
And what should we make of that?

[00:25:57] Speaker 02:
It's not accurate and I think one should make relatively little out of it.

[00:26:02] Speaker 02:
It's not accurate because Mr. Burke himself is an African-American man and he personally, as part of his testimony, witnessed the demeanor issues on multiple occasions and the performance issues.

[00:26:13] Speaker 02:
Same actor inference applies to him and he is a black man.

[00:26:16] Speaker 02:
Past that, I'm not sure that I have much to work with.

[00:26:20] Speaker 02:
I have no control obviously over the

[00:26:25] Speaker 02:
the races of the people who happen to be working around him.

[00:26:32] Speaker 02:
But the point I think more broadly is that of the people who worked with him as a colleague or as a supervisor, nobody disagrees with these assessments or virtually no one does that there were these problems that were reported.

[00:26:48] Speaker 01:
Well, that's on the performance.

[00:26:49] Speaker 01:
I'm talking about the demeanor issue.

[00:26:51] Speaker 01:
And there also is the sort of converse demeanor issue of the supervisors, who some of the employees testified they thought supervisors talked down to him, that they were belittling, that they were harsh in a way that at least the observing employee was willing to testify under oath.

[00:27:09] Speaker 01:
seemed biased to them.

[00:27:12] Speaker 01:
And what do we make of that?

[00:27:13] Speaker 02:
Two responses.

[00:27:14] Speaker 02:
First of all, the people who were talking down, that mostly refers to Mr. Hecker, who is this guy with a loud voice who got deafened by helicopters in the military.

[00:27:24] Speaker 02:
One of the co-workers, Ms.

[00:27:28] Speaker 02:
Morrison, who's their witness, testified sort of the opposite.

[00:27:32] Speaker 02:
She said that Johnson was hurt and disrespectful to Hecker.

[00:27:35] Speaker 02:
She said, I know Hecker was getting very frustrated, but never did I hear him take it out on Mr. Johnson.

[00:27:41] Speaker 02:
But even if Hecker is talking down to people, quote unquote, first of all, there's no more hostile work environment playing in this.

[00:27:48] Speaker 02:
And as far as we're aware, the fact that somebody is, quote, talking down, that's not an adverse action.

[00:27:54] Speaker 02:
At most, it's a hostile work environment thing.

[00:27:56] Speaker 01:
But coupled, I mean, it could be part of circumstantial evidence of bias.

[00:28:00] Speaker 01:
Clearly, if we're talking about someone not being retained as an employee, that's the adverse action.

[00:28:07] Speaker 02:
Well, Mr. Burke has none of that testimony against him.

[00:28:10] Speaker 02:
He's not accused of talking down to anyone.

[00:28:12] Speaker 02:
Ms.

[00:28:13] Speaker 02:
Langley has very little of it, if any, and they're the ones that actually made the decision here.

[00:28:20] Speaker 02:
They're the ones whom the same actor and inference applies to.

[00:28:23] Speaker 02:
There's no evidence in the record that Mr. Davin talked down to anybody.

[00:28:29] Speaker 02:
There's no evidence that Mr. Galovsky at this conference that plaintiff went MIA at that he talked down to anybody.

[00:28:36] Speaker 02:
And so it's clear, yes, some of the coworkers said that they perceived and they said it sort of

[00:28:43] Speaker 02:
We don't have any quotations of this, we don't have any documents of this.

[00:28:48] Speaker 02:
I got the impression that I was treated differently, but that is a conclusory statement, that things were different for me than they were for other people.

[00:28:56] Speaker 02:
And that, I think, does fall squarely under just unsubstantiated testimony characterization.

[00:29:03] Speaker 02:
So I think whichever way you turn here, the reason the district court got it right is that one can quarrel with a particular supervisor or co-worker statement on a particular day, but there are five or six witnesses testifying consistently to each of the problems that are reported here.

[00:29:23] Speaker 01:
Did the district court get it right in saying that the explanations did shift

[00:29:29] Speaker 01:
Over time, the district court says, you know, there were shifting explanations, but I can't tie that to race and therefore.

[00:29:36] Speaker 02:
We think the district court was charitable to plaintiff and describing them as shifting.

[00:29:43] Speaker 02:
They were not identical, but they were not inconsistent either.

[00:29:47] Speaker 01:
When you say they were not identical, what are you referring to?

[00:29:50] Speaker 02:
Well, for example, there's an answer, one of the answers, they asked the

[00:30:00] Speaker 02:
In the complaint it said Mr. Burkett conflicting statements.

[00:30:04] Speaker 02:
Originally he said a statement, his stated reason was to support the supervisor, but later he said he cannot do the work.

[00:30:10] Speaker 02:
But we agreed with the statement that he said it was to support the supervisor, but we didn't agree that that was the only reason.

[00:30:17] Speaker 02:
And that's what they've latched onto there.

[00:30:19] Speaker 02:
In the termination memo, which Mr. Burke signed, they gave three reasons.

[00:30:24] Speaker 02:
They gave performance deficiencies, they gave demeanor deficiencies, and there was a third one, I believe, also.

[00:30:30] Speaker 02:
That was the very first thing that Mr. Burke communicated, and it was an all-of-the-above sort of response.

[00:30:35] Speaker 02:
And based on questions and answers, yes, depending on what the record needed to be clarified upon, his later declarations and testimonies emphasized one aspect above another one, or maybe exclusively.

[00:30:50] Speaker 02:
But that doesn't mean that his initial all of the above answer was untrue.

[00:30:55] Speaker 02:
He's just expanding on prior things, where he said that he had demeanor problems and he had professional competence problems.

[00:31:05] Speaker 02:
And then later he said, yes, I personally have witnessed these things.

[00:31:10] Speaker 02:
And yes, I did it to support the supervisor, too.

[00:31:13] Speaker 02:
But there's nothing wrong with the manager supporting his supervisor if the manager agrees with the observations that the supervisor has made.

[00:31:21] Speaker 02:
The supervisor reported the same problems.

[00:31:23] Speaker 02:
That is, Ms.

[00:31:24] Speaker 02:
Langley reported observing the same problems as Mr. Burke did.

[00:31:27] Speaker 02:
So to support the supervisor's views, when he himself holds those same views, that's not inconsistent.

[00:31:33] Speaker 02:
That's what one would hope a manager would do.

[00:31:35] Speaker 03:
Okay, thank you.

[00:31:38] Speaker 03:
Let's see, Ms.

[00:31:39] Speaker 03:
Raulston, I think you are out of time, but you can take two minutes.

[00:31:47] Speaker 00:
Thank you.

[00:31:55] Speaker 00:
I just wanted to address really quickly Mr. Tate's comments about the conversion in terms of Mr. Burke feeling this pressure and that he didn't know that he had an alternative to extend the temporary appointment because it seats

[00:32:10] Speaker 00:
specifically, if you have any questions about this, call this person, which he didn't.

[00:32:13] Speaker 00:
And he also writes back.

[00:32:14] Speaker 00:
I'm sorry, what?

[00:32:15] Speaker 00:
It states that if he has any questions, and it gives a person to contact if he has any questions about what they're asking of him.

[00:32:21] Speaker 00:
And it also states, he writes back in no uncertain terms, I want him to be converted to career conditional, which his testimony.

[00:32:29] Speaker 04:
The memo does suggest that it's that or the pay stops.

[00:32:33] Speaker 00:
Right.

[00:32:35] Speaker 00:
His testimony says that he didn't understand that he was converting him to career conditional and that he didn't have any clue that that's what he was doing, but his statement directly states that.

[00:32:47] Speaker 00:
His statement directly states what?

[00:32:49] Speaker 00:
His email says, I would like to request to convert

[00:32:52] Speaker 00:
You know, Mr. Johnson's a career conditional.

[00:32:55] Speaker 00:
And he testifies later that he had no idea that what he was doing was converting him.

[00:33:02] Speaker 00:
The same actor defense, I think, has been really briefed in all of the writings.

[00:33:07] Speaker 00:
Langley is the one who recommended the termination.

[00:33:10] Speaker 00:
That is not disputed.

[00:33:12] Speaker 00:
She is the one who recommended that the career conditional be rescinded.

[00:33:18] Speaker 00:
She is the one who had the input in the termination letter.

[00:33:22] Speaker 04:
I mean, Burke seems to have had plenty of direct exposure to Johnson.

[00:33:28] Speaker 04:
You say that Johnson testified that he did a great job, but is there any place where he tries to go by the specific assertions of low-grade performance that the government witnesses offered?

[00:33:48] Speaker 00:
In terms of Mr. Johnson's deposition,

[00:33:51] Speaker 00:
I recall there's portions of it where he said that he was given assignments late and told to do things and it was conflicting directions and he wasn't sure and he would ask for follow up and he would get yelled at.

[00:34:02] Speaker 00:
And the record is also clear that when he asked Mr. Hecker for guidance that Mr. Hecker he felt was condescending and yelling at him and that he had meetings with him and would leave because he was upset and didn't know how to communicate and he felt that he was not being assisted.

[00:34:16] Speaker 00:
But he did try to get whatever feedback from him to be assisted.

[00:34:20] Speaker 00:
Mr. Hecker's testimony did not identify that Mr. Johnson was the worst employee.

[00:34:25] Speaker 00:
He was terrible and all of his work product was awful.

[00:34:28] Speaker 00:
He addressed the fact that he also thought that Langley was not giving him any guidance in terms of his work performance.

[00:34:38] Speaker 00:
But I wanted to just also make the point that

[00:34:43] Speaker 00:
Mr. Teefe had mentioned that there are a majority of employees that support that, you know, Mr. Johnson was not, I guess, good at his work or had argumentative demeanor, but that is not true.

[00:34:54] Speaker 00:
The majority of the employees do support Mr. Johnson, that he was always compliant.

[00:34:59] Speaker 03:
But again, the concern of the employer was that he was argumentative with his supervisors.

[00:35:06] Speaker 03:
What?

[00:35:07] Speaker 03:
With his supervisors.

[00:35:08] Speaker 03:
not with coworkers.

[00:35:10] Speaker 03:
That wasn't the reason for terminating him.

[00:35:12] Speaker 00:
They did say that he was argumentative with his peers and coworkers, and that his argumentative demeanor was toxic to the workforce, or because of that.

[00:35:23] Speaker 00:
And that was not supported.

[00:35:25] Speaker 00:
I mean, there were the one person that said that he was mean to Hecker.

[00:35:29] Speaker 00:
But for the most part, everyone said that he was very professional, social, hardworking, and did a good job.

[00:35:38] Speaker 00:
In closing, really, there are disputed facts here.

[00:35:44] Speaker 00:
And there are issues here that should be, credibility should be weighed.

[00:35:48] Speaker 00:
And so we are requesting.

[00:35:50] Speaker 00:
OK.

[00:35:51] Speaker 00:
Thanks.

[00:35:51] Speaker 03:
Thank you.

[00:35:52] Speaker 03:
Both the cases submitted.