[00:00:02] Speaker 00: case number 15-7048. [00:00:05] Speaker 00: Andrew Johnson at L, Appellants v. District of Columbia, a municipal corporation. [00:00:09] Speaker 00: Ms. [00:00:10] Speaker 00: Hunt for the amicus cari, Mr. Love for the appellee. [00:00:13] Speaker 00: Ms. [00:00:14] Speaker 00: Hunt, good morning. [00:00:16] Speaker 01: Good morning. [00:00:16] Speaker 01: Hyland Hunt, arguing on behalf of appointed amicus in support of Appellants, Mr. Johnson and Dr. Harp. [00:00:23] Speaker 01: This case involves two long term employees of the District of Columbia public schools with good track records over age 60 who were quickly terminated and replaced with younger employees after implementation of a new evaluation system impact, a system that disproportionately terminated older employees. [00:00:45] Speaker 01: A reasonable jury could find that their evaluations were inaccurate and false, and were in fact pretext to discriminate against them because of their age. [00:00:56] Speaker 01: Specifically, in Mr. Johnson's case, a reasonable jury could find his timeliness score was wrong. [00:01:02] Speaker 01: DCPS did not reasonably believe his score to be accurate, but it fired him anyway. [00:01:09] Speaker 01: It was the result of his supervisor, Dr. Mitchell, who controlled all of the inputs to that timeliness score, and who personally selected a psychologist nearly 30 years younger than Mr. Johnson to replace him. [00:01:23] Speaker 01: That prima facie case, plus evidence of pretext, is enough for a jury to find discrimination. [00:01:29] Speaker 01: But there is more here. [00:01:30] Speaker 01: A reasonable jury could also find [00:01:34] Speaker 01: that Dr. Mitchell made comments reflecting her attitude. [00:01:37] Speaker 05: Before you get to that, I was just asking a question about the procedural flaw that you have identified, the alleged procedural flaws, is that his timeliness evaluation, as I understand it, should have been, the timeliness clock should have started running in November instead of September. [00:01:57] Speaker 01: Is that right? [00:02:00] Speaker 01: Yes, Your Honor, that's at least one of them. [00:02:02] Speaker 01: I would actually identify sort of an antecedent procedural flaw, which was Dr. Mitchell directing Mr. Johnson to complete the report before the student was actually placed back on his caseload, which she testified in her deposition. [00:02:15] Speaker 01: Her first deposition, it was not protocol to ask someone to complete a report not on the caseload. [00:02:21] Speaker 01: A reasonable jury could find that although she directed that JF be added back, [00:02:27] Speaker 01: JF was not added back, actually. [00:02:29] Speaker 01: Either was never added back or was only added back long after Mr. Johnson completed the report. [00:02:33] Speaker 01: So I think that's a procedural flaw, but also the fact that she did not update the date to November, which- What in the record indicates that DCPS policy required that? [00:02:43] Speaker 05: Is there anything? [00:02:45] Speaker 01: I think there are two things, Your Honor. [00:02:47] Speaker 01: One is that the date runs for 45 days from the time a report and assessment is ordered. [00:02:53] Speaker 01: In this case, the original assessment [00:02:55] Speaker 01: no one disputes or at least all of the record evidence indicates ended. [00:03:01] Speaker 01: It dropped because the student left the school. [00:03:03] Speaker 01: So this assessment that was needed for a court hearing was in fact a new assessment that required a new order date. [00:03:09] Speaker 01: The second piece of information that indicates that is testimony by Closterman McMahon that [00:03:21] Speaker 01: If what Mr. Johnson said in his appeal were true, then the score was inaccurate. [00:03:26] Speaker 01: And what he said in his appeal to the review board was, the student dropped off my case because she left the school. [00:03:34] Speaker 01: I was ordered to complete the report anyway. [00:03:36] Speaker 01: That is exactly what happened. [00:03:38] Speaker 01: So that shows that DCPS policy reflects that that score was inaccurate. [00:03:44] Speaker 02: Can I ask again, you said the antecedent issue is, how did you phrase it? [00:03:49] Speaker 01: at ordering him to complete a report before his caseload was actually adjusted to reflect that student. [00:03:54] Speaker 01: And I think that's in part what's responsible for the inaccurate score, which I want to emphasize is also not inaccurate only because of JF. [00:04:03] Speaker 01: There's also the issue that it only included three reports. [00:04:07] Speaker 01: But with respect to that, ordering him to complete the report before JF was added back to his caseload was, she said, [00:04:15] Speaker 01: Earlier he was dinged in the prior year for completing or working on reports for students that were not on his caseload. [00:04:21] Speaker 01: And in her first deposition, she testified, if Mr. Johnson was directed to do a report for a student not on his caseload, that was not protocol. [00:04:29] Speaker 01: But that is exactly what she directed him to do. [00:04:31] Speaker 01: Now she simultaneously directed that JFB re-added, but she did not either make sure that happened, even though she testified that was her responsibility to do, [00:04:45] Speaker 01: It didn't fix the inaccuracy because she didn't update the order date. [00:04:49] Speaker 01: And she also required Mr. Johnson to complete the report before the student was actually re-added to his caseload. [00:04:57] Speaker 02: But is there evidence that, so as to whether the student should have been part of the mix, because is there evidence from which a reasonable jury can conclude that Mitchell was being dishonest about it, about that question? [00:05:11] Speaker 01: I'm sorry, as to whether [00:05:12] Speaker 02: Well, the antecedent question, as I understand it, is whether the student should have been included as part of the caseload to begin with, right? [00:05:24] Speaker 01: I think the question is whether the student should have been, or the question where the fact dispute is, is whether or not the student was actually re-added to the caseload. [00:05:34] Speaker 02: Yeah, whether they were part of the caseload, right? [00:05:37] Speaker 01: whether they were part of the caseload. [00:05:38] Speaker 01: Well, I think there's no fact. [00:05:40] Speaker 01: I mean, I think Dr. Mitchell agrees the student dropped off the caseload. [00:05:42] Speaker 01: She testified as much. [00:05:44] Speaker 01: So there's no dispute that the student dropped off. [00:05:47] Speaker 01: And that alone is enough. [00:05:48] Speaker 01: The fact that the student not being continuously assigned, according to the testimony, which is at 271, where the district's representative said, if what Mr. Johnson said was true, that the student dropped off, [00:05:59] Speaker 02: But the student had dropped off, but then Dr. Mitchell thought that she was giving a simultaneous instruction to bring the student back in the fold. [00:06:09] Speaker 01: She did. [00:06:10] Speaker 01: give that instruction, but she did not make sure that it was actually carried out. [00:06:15] Speaker 01: And the reasonable jury could find that it was not, because in December, there's an email from Mr. Johnson where he says, look, when I uploaded this report, when I completed and uploaded it, the student still wasn't on my caseload. [00:06:28] Speaker 01: There's nothing to indicate the student was actually ever added back. [00:06:32] Speaker 01: But beyond that, her simultaneous direction to add him back did not say update the order date. [00:06:37] Speaker 01: So it just made things worse for him, because it now looked as if he was ordered in September to do this, and the 45-day clock ended running the whole time, and he didn't turn it in until, let's say, sometime in November. [00:06:49] Speaker 01: But that's not, in fact, what happened. [00:06:51] Speaker 01: Under district policy, that gap when the student dropped off should not have counted against him. [00:06:56] Speaker 05: See, what I'm having trouble with is, assume for a minute that I don't think the statements that you've identified are sufficient. [00:07:06] Speaker 05: What you have here, and I asked, let's assume you're right about the procedural violation, that is, that this was not the way it should have been done. [00:07:16] Speaker 05: How can a jury not conclude from that alone that this was discriminatory? [00:07:23] Speaker 01: I think, Your Honor, it's not just about procedural departures. [00:07:26] Speaker 01: It's about knowing use of inaccurate information by Dr. Mitchell and DCPS. [00:07:31] Speaker 01: And I think the case is on all fours with Jones v. Bernanke. [00:07:34] Speaker 01: In that case, there was an evaluation, a performance evaluation of an employee that said, you're getting a bad evaluation because you did [00:07:42] Speaker 01: you didn't fulfill these two projects very well, and the employee brought forth evidence that said, I wasn't assigned to one of those projects, and I was taken off one of the other ones. [00:07:52] Speaker 01: And in addition, there was a prima facie case, and that case is retaliation. [00:07:56] Speaker 01: And this court said, that alone is enough. [00:07:58] Speaker 01: When you have a prima facie case, that's the evidence of age. [00:08:01] Speaker 01: That's connection. [00:08:02] Speaker 01: So even if we disregard the statements, [00:08:05] Speaker 01: We have here that Mr. Johnson was replaced, personally replaced, by Dr. Mitchell with an individual nearly three decades younger than him. [00:08:14] Speaker 01: And the Supreme Court said in O'Connor that that substantial disparity in age is enough to raise an inference of age discrimination, coupled with DCPS's unreasonable use of an inaccurate score, which includes both the fact that it only had three reports and the fact that JF was timely, is enough for a jury. [00:08:36] Speaker 01: It's not just a case about procedural unfairness here. [00:08:42] Speaker 01: If the procedures had been applied to Mr. Johnson correctly, they would have been fair. [00:08:47] Speaker 01: But what resulted was, in fact, a false score in the district. [00:08:52] Speaker 01: And he repeated that to Dr. Mitchell, the impact office, the review board. [00:08:56] Speaker 01: The district was on notice, and it should not reasonably have believed in the accuracy of that score when it fired him. [00:09:02] Speaker 01: I'll reserve the remainder of my time for rebuttal. [00:09:03] Speaker 04: All right. [00:09:04] Speaker 04: Thank you. [00:09:05] Speaker 04: Mr. Love? [00:09:15] Speaker 03: Good morning. [00:09:15] Speaker 03: Good morning. [00:09:16] Speaker 03: Richard Love for the District of Columbia. [00:09:19] Speaker 03: Focusing on Mr. Johnson and the issue of what exactly happened, I think the record unambiguously shows at page SJA 377 that Dr. Mitchell simultaneously directed the JFB headed back to Johnson's caseload and that he complete her report. [00:09:40] Speaker 03: Now, Amicus seeks to shift the blame to Dr. Mitchell, who they assert controlled all the inputs, but the record says otherwise. [00:09:51] Speaker 03: At pages 361 to 362, Dr. Mitchell testifies she couldn't assign a student to a psychologist in SEDS. [00:10:02] Speaker 03: The special ed coordinator could, and Dr. Mitchell could direct [00:10:07] Speaker 03: the special education coordinator to do that, as she did here. [00:10:13] Speaker 03: Mr. Schechter, who she directs at page 377, to add the JF back to Mr. Johnson's caseload was the special ed coordinator. [00:10:25] Speaker 03: And she also testified that [00:10:27] Speaker 03: a psychologist was able to assign students to his caseload, and she knew that because Mr. Johnson told her he had done that. [00:10:37] Speaker 03: He had added students to his caseload. [00:10:40] Speaker 03: Either way, it was Mr. Johnson, not Dr. Mitchell, who was responsible to ensure that JF was a part of his caseload and that the assessment was completely [00:10:50] Speaker 03: and timely entered into SEDS. [00:10:52] Speaker 03: The record says at 366, and at page 432, there's a clear reminder to Mr. Johnson that it's his responsibility to enter completed assessments in SEDS. [00:11:06] Speaker 03: Moreover, there's no evidence that JF's assessment was timely using either the September or the November date. [00:11:14] Speaker 03: The December 28th communication to Mr. Johnson at pages 431 and 432 indicates that JF's assessment is untimely as of December 28th. [00:11:29] Speaker 03: And again, it reminds him that it is his responsibility to enter into sets of completed assessments. [00:11:37] Speaker 05: Would it have been untimely if the clock had been begun in November? [00:11:43] Speaker 03: Yes, it would, Your Honor. [00:11:45] Speaker 03: November 4th was the date that Dr. Mitchell directed that Mr. Johnson complete the report and that JFB add it back to his caseload. [00:11:56] Speaker 03: 45 days from that would be before December 28th. [00:12:00] Speaker 05: So either way, it would have been late. [00:12:02] Speaker 05: That's correct. [00:12:03] Speaker 05: I see. [00:12:06] Speaker 03: Moreover, the entry of these reports in SEDs [00:12:10] Speaker 03: You know, it's a substantive component of this impact, which is a age-neutral, objective performance evaluation system. [00:12:20] Speaker 03: And there was a reason why it was a separate substantive component. [00:12:28] Speaker 03: You know, assessment timeliness was necessary not just to ensure timeliness, [00:12:32] Speaker 03: but also to ensure accountability for a special education system that was under federal court review. [00:12:40] Speaker 03: And that's why they had a data system. [00:12:43] Speaker 03: That's why they had a separate substantive component, assessment timeliness, that was automatically measured by the data system. [00:12:53] Speaker 03: The program managers, like Dr. Mitchell, were excluded from the process. [00:12:59] Speaker 02: So it didn't sound like that system was a perfectly well-oiled machine. [00:13:04] Speaker 03: Correct. [00:13:06] Speaker 03: However, even if there were procedural violations, as we pointed out in our brief, I think no reasonable jury could find that Dr. Mitchell intended in November 2010, when she gave a directive that this evaluation be completed because there was a pending hearing officer case, [00:13:25] Speaker 03: that that would lead to a evaluation results seven months later in June 2011, which in combination with his evaluation rating from a year earlier in June 2010, would result in his termination. [00:13:46] Speaker 03: It's an entirely speculative and very elaborate theory. [00:13:52] Speaker 03: I would like to touch, if I could, just on the statistical question. [00:13:56] Speaker 03: I'll skip the statements unless the court has questions. [00:14:00] Speaker 03: But I do want to press the forfeiture argument here. [00:14:05] Speaker 03: The statistics that Mr. Johnson relies on were one of the 75 exhibits that were attached to his summary judgment motion. [00:14:15] Speaker 03: But it was nowhere mentioned. [00:14:17] Speaker 03: No argument was based on those statistics in the actual opposition to the summary judgment motion. [00:14:23] Speaker 03: Moreover, there were 20 pages of disputed issues identified by Mr. Johnson, none of which referenced these statistics or made an argument based on these statistics. [00:14:34] Speaker 03: So the fact that the court found that there was no evidence of an impact age bias isn't an opening. [00:14:42] Speaker 03: for consideration of these arguments. [00:14:45] Speaker 03: The court, as this court found in Potter versus District of Columbia, isn't required to sift through the record to identify evidence or arguments that Mr. Johnson could have identified but did not develop. [00:15:02] Speaker 03: Even if you looked at the arguments, it's really based on a faulty premise that because [00:15:09] Speaker 03: 57% of the employees that had known birth dates and were evaluated under IMPACT were 40 or older, that only 57 or 58% of those employees could be terminated under IMPACT without indicating some discriminatory [00:15:30] Speaker 03: intent. [00:15:33] Speaker 03: I think that's a faulty premise. [00:15:34] Speaker 03: It's unsupported. [00:15:36] Speaker 03: Moreover, there's no, even using that construction, there's no substantial numerical disparity here. [00:15:42] Speaker 03: In the first year, it is only a five percent differential. [00:15:46] Speaker 03: That equates to eight employees. [00:15:48] Speaker 03: In the second year, it's only nine. [00:15:51] Speaker 03: And the Supreme Court case that [00:15:53] Speaker 03: the amicus identified, rejected this fourth test. [00:15:58] Speaker 03: It found that a case-by-case approach to judge the significance or substantiality of numerical disparity, depending on all of the facts and circumstances, was the appropriate test. [00:16:12] Speaker 03: Here, the surrounding facts and circumstances demonstrate that it really had no impact in diminishing the percentage of employees in DCPS that were [00:16:22] Speaker 03: over the age of 40. [00:16:24] Speaker 03: Finally, I just want to address a couple of points with regard to Dr. Harp. [00:16:30] Speaker 03: Amicus argues that Dr. Harp's evaluation was not based on five reports, because independent educational evaluations, which were three of the five reports that Dr. Turner-Wingate reviewed, are not a part of the impact rubric. [00:16:48] Speaker 03: And they point to JA25 to support that proposition. [00:16:52] Speaker 03: That's just incorrect. [00:16:53] Speaker 03: J-25, which is a page from the administrative judge's decision, says that psychological summary reports are not a part of the impact rubric, not independent educational evaluations, which unquestionably are. [00:17:11] Speaker 03: If you look at [00:17:13] Speaker 03: Dr. Turner's evaluation, Dr. Turner-Wingate's evaluation at SJA 57, she says after he clarified that, oh no, these were really independent educational evaluations, she reviewed them, and I'm quoting, per the operationalized rubric, unquote, for IEEE reports, and then she says which are, and she lists the elements. [00:17:38] Speaker 03: So clearly, they're part of the rubric. [00:17:41] Speaker 03: That's what the district court also found at JA56. [00:17:45] Speaker 03: And she still found that using that rubric, it didn't meet the elements, and it didn't merit adjusting his score. [00:17:56] Speaker 03: And then she also evaluated two assessment reports. [00:17:59] Speaker 03: So five were reviewed. [00:18:03] Speaker 03: The fact that Dr. Rich supervised [00:18:08] Speaker 03: Dr. Harp, for less than 90 days on the second half of the 2009-10 evaluation, Amica's claims was harmful error because the administrative judge found it was so, but the administrative judge doesn't explain why it was so. [00:18:27] Speaker 03: It's just a conclusion. [00:18:29] Speaker 03: And I think in our brief, at pages 43 and 44, we explain why it wasn't harmful error. [00:18:37] Speaker 03: She was reviewing evaluations per rubric she helped to develop. [00:18:43] Speaker 03: And finally, the problem with Dr. Hart's statistics [00:18:47] Speaker 03: go far beyond that they were simply unorganized. [00:18:51] Speaker 03: Those statistics are unanalyzed. [00:18:54] Speaker 03: We don't know what the dates of birth of the applicant pool are, and a third of them don't even have birth dates. [00:19:02] Speaker 03: So for those reasons, we think that the district court correctly entered summary judgment in favor of the district on both Dr. Harp's claim as well as Mr. Johnson's, and we would ask that the court affirm the decisions below. [00:19:18] Speaker 04: All right, thank you. [00:19:32] Speaker 01: There are fact disputes that the district is arguing as if they are conclusive. [00:19:37] Speaker 05: What about Mr. Love's argument that it would have been untimely even if the clock had started in November? [00:19:45] Speaker 01: If you look at SGA 431, which is the December 2010 email that was discussed, you'll see that in that email, Mr. Johnson is reporting that he had already uploaded and completed the report some time ago. [00:19:57] Speaker 01: And in fact, the purpose of his email was sent to Dr. Mitchell to say, this is registering is untimely, and it's not. [00:20:05] Speaker 01: It's not correct. [00:20:06] Speaker 01: Here's why it's not correct, because you directed me to complete this report, et cetera. [00:20:10] Speaker 01: So it's not that Dr. Mitchell needed to have envisioned when she directed that JFB re-added in November 2010 this long chain of events. [00:20:20] Speaker 01: It's actually consistently, every time he brings this up, she does nothing to fix it. [00:20:25] Speaker 01: And a reasonable jury could find it was her job. [00:20:29] Speaker 01: The district cites the testimony. [00:20:30] Speaker 05: You were just going to list a couple of other facts that are immaterial. [00:20:34] Speaker 05: I want to make sure you get them out. [00:20:35] Speaker 01: OK, one, a reasonable jury could find it was timely. [00:20:38] Speaker 01: That's SJ 431 and SJ 298 when he brings it up in his appeal. [00:20:42] Speaker 01: It was timely from the new day. [00:20:44] Speaker 01: Two, a reasonable jury could find it was her job to fix it. [00:20:46] Speaker 01: I think the best quote is at SJA 366 when she says, if you need to adjust your caseload, you do it or notify your program manager, which she did over and over again, and she did nothing. [00:20:56] Speaker 01: And three, that's consistent with her attitude towards him as an employee old enough he should just retire. [00:21:03] Speaker 01: She denied knowing anything about his retirement options. [00:21:05] Speaker 01: So a reasonable jury could find the only reason she made that comment was because she perceived him as old. [00:21:10] Speaker 01: And so it's of a piece with her deliberate neglect. [00:21:14] Speaker 01: And that, along with her replacing with the younger person, is enough to get the case to a jury. [00:21:18] Speaker 01: It's not just about unfairness. [00:21:19] Speaker 01: It's about known falsity. [00:21:21] Speaker 01: The one other disputed fact I would add is the fact that DCPS delayed publication of the timeliness score. [00:21:27] Speaker 01: I think that indicates that it did not reasonably believe in the accuracy of the score either. [00:21:32] Speaker 01: And with that, we would ask you to reverse the district court. [00:21:36] Speaker 04: All right. [00:21:36] Speaker 04: Thank you. [00:21:36] Speaker 04: Ms. [00:21:36] Speaker 04: Hutt, you were represented to [00:21:39] Speaker 04: Well, you were appointed, rather, to represent your two clients as a friend of the court. [00:21:44] Speaker 04: We thank you very much for your assistance.