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Case number 16-5236.

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Brett Steele, Appellant vs. James Mattis, Secretary of Defense.

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Ms.

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Rucker for the Appellant.

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Mr. Farron-Roth for the Appellee.

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Good morning.

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Hi.

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Good morning, Your Honors.

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May it please the Court.

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Donna Rucker, on behalf of Dr. Steele, who has filed this appeal because it is our belief that the trial court erred in granting summary judgment in this case and concluding that Dr. Steele had failed to establish or present evidence from which a reasonable jury could conclude or find that age discrimination had in fact occurred.

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And we assert this for three basic reasons.

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First, we believe that the trial court in this case particularly weighed the evidence, also made credibility determinations, and ignored evidence of pretext, and did not provide Dr. Steele with the ability to have the evidence reviewed in a light most favorable to him.

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And with respect to the particular evidence that was put forth in this particular case, Dr. Steele has established or has asserted that he believes that when he came

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to NDU as a professor that he was given the position as a placeholder and he believes this because very soon after starting in the position he received what he believed to be questions and concerns about his teaching style and skill

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And although in the record it shows that he made whatever adjustments were requested of him, there was still this intent and determination to... He was a probationary employee, right?

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That is correct, Your Honor.

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And so for that reason, he could have been fired for any reason, but not for an unlawful reason, right?

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And that is correct.

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Our position is that... And your claim is that the unlawful reason was he was...

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fired because of his age.

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That is correct.

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And to establish that, you have to compare the way he was treated with others who were similarly situated, but benefited because of their age.

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Is that right?

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Well, we do, in establishing a prima facie case, in this particular case,

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the appellee came forward and indicated that it believed that the decision to terminate Dr. Steele in fact occurred because of budget cuts.

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And so with respect to articulating this proposal.

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What I was getting at was you have to show that others were treated well because of their age while he was treated poorly because of his age, right?

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Well, that is what we've asserted in this record as well.

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And how have you shown that?

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So particularly with, let's use for example, Professor Miller, who is a younger employee.

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who in fact was at the university also in a probationary period, and this decision which was made to release particular employees resulted in only two individuals who were faculty being released, and both of those individuals were over the age of 40.

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And with respect to Dr. Miller, who was allowed to remain, we believe the record evidence shows that he was not, in terms of his skills and abilities,

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an employee that for those reasons, as asserted by the agency, should have been someone considered to remain.

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Tell me about, I actually want to go back to the beginning in the prima facie case that was asserted here.

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The fourth prong requires that you show that he was replaced by a substantially younger person.

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Yes.

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So the people that took over his job duties

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right after he was dismissed, were 11 years older, six years younger, which isn't treated as substantially, and one was 10 years younger.

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So if 2 thirds of them don't qualify as substantially younger, only one of them might have.

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And his permanent replacement was, I think, about the same age, 47.

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His permanent replacement was 47.

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So how did you even make out the fourth prong of the prima facie case here?

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So with respect to looking at other individuals who were advantaged more favorably than Dr. Steele with respect to how they were treated, we are looking in addition to the individuals whom the court has identified

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the fact that very soon after Dr. Steele was allegedly released for budget reasons, the agency in fact hired two other individuals to work within the same.

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But not to do his job.

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Well, they were to work within the same department as Dr. Steele was working.

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But if the people that replaced him were not younger, by here we require substantially younger in this particular area, were not substantially younger.

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They just weren't.

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In fact, one was the same age.

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Why do you even bother looking out at other people?

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Doesn't that blow a hole in your prima facie case?

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Are you aware of a case, let me be more specific, where you weren't able to show the fourth prong in a prima facie case as to the plaintiff's particular position that was replaced by someone of I think the same age, wasn't he 47 when he was dismissed?

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Well, we cannot, Your Honor, in our position at this particular point.

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Other cases where we then said, okay, even though you were replaced by someone the same age, we're gonna start looking around at other people who are also teaching, but teaching different things, and see what happened there.

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Or do we look and say, look, you were replaced by someone who was just the same age as you, that's the end of the prima facie story.

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Well, it only is the end of the prima facie story if that is consistent, we believe, with the record of what has been presented.

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So it is true and correct that these individuals who actually remained and began doing the work were individuals who were older.

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And the one who actually took his position was the same age.

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They taught the class.

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Several professors taught the same course during the evening and other times.

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What we are pointing out.

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But there was a permanent replacement a year or so later.

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They did have a permanent replacement.

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It was 47.

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That is correct.

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But what we're trying to point out, Your Honor, what we did point out in this particular record is the fact that for those individuals who came forward subsequent to Dr. Steele's removal, if you look exclusively at what the university did after Dr. Steele was asked to leave, the record that we present

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deals with the issues of whether or not it was actually correct that Dr. Steele could not teach some of the courses that were going to come in later.

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So that is the position that we took.

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But we only look at pretext.

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Pretext helps you, but you have to have a prima facie case for that to go with, right?

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So the pretext, if you haven't made out a prima facie case,

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pretext isn't going to get you past summary judgment.

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If you have made out a prima facie case, then pretext could get you past summary judgment under Reeves.

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So the question is when you haven't made out a prima facie case because your replacements were not

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younger, relevantly younger, substantially younger as is required.

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In fact, your permanent replacement was exactly the same age.

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The one was 11 years older than you.

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Then what does it matter if you show pretext that they didn't say the right reason?

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Well, I do understand that, Your Honor.

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But when you look at Dr. Miller, for example, the individual that I was pointing out who is substantially younger, he is one of those individuals who was supposedly teaching the courses that Dr. Steele was supposed to teach.

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Right.

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And another one was 11 years older.

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That is correct.

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So it looks like for at least temporarily his job was split to three people.

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But the two people who were fired as faculty members were both over the age of 40.

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And what we point out in this record is there seemed to have been a pattern and a trend of getting rid of the older employees.

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Now to the extent that they've retained one or two with respect to the example.

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That pattern or trend rely upon your statistical calculations?

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Is that where you show that?

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It's from the employment records.

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It shows with respect to the retention.

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Because there are lots of problems with the statistical calculations.

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We're not relying very heavily on the statistical calculations that Dr. Steele offered, but we pointed out simply because the records with respect to how and who it is that they hire or retain tends to show this trend, we believe.

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with respect to retaining younger individuals and getting rid of individuals who are older.

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Why don't you rely on the statistical calculations more?

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Well, we do rely on it.

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Why do you rely on it at all?

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I mean, it doesn't have any of the relevant confounders.

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Retirement, range of species, experience and skills.

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It's terribly flawed.

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Well, we don't have to, in these particular individual cases, look very closely when we're talking about one particular individual as we are in this case being the victim of discrimination.

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Let me ask you, Ms.

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Rucker, a really preliminary question.

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I was puzzled as to why it wasn't briefed in this case, the applicability of the Ford versus Mavis decision from this circuit, which

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points out that for federal employees, it's unlawful for age discrimination to be a factor.

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It doesn't have to be the cause.

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That is correct.

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Only if you're looking for specific damages beyond.

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Right.

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Yes.

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And I wondered whether that's because you were not pursuing that.

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That is correct.

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You're not.

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Well, we are, in fact, pursuing an a factor.

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So we believe that both exist in this particular case, because if it's actually the but for cause, it's clearly a factor as well.

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is how we were reading the record in terms of what we presented here.

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And again, what we pointed out and what we believe we pointed out in this particular case, the judge himself, in looking at this in the lower court, at the record at DA deferred appendix 88.5, specifically points out that he thinks the prima facie case is weak.

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And in that instance, he is acknowledging that there are some elements of what has been presented, I think, in alludes to what you were saying.

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I'm just asking you how it's presented, how it's met here.

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That's correct.

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I think the district court was going, look, they've said they're a legitimate reason.

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I'm not going to, I'm just going to say it's weak and move on, because they presented a reason.

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I'm going to move to the next stage.

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But for your purposes, for summary judgment analysis, we go back and we look at what was shown at the Cremofasia case, and then we look at other things, like the pretext that you're arguing.

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Now we put them together, but when I went to try to add them together, I couldn't understand how you met the fourth prong, your pre-impeach case.

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And I have to analyze the evidence here to see if you've got enough to get past summary judgment.

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So I think I'm going to ask you the question, even if the district judge blew past it.

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I do understand.

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I see that my time is up, Your Honor.

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Thank you.

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Thank you.

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So with respect to the position about it, when the court says, as the judge does in this particular case, that the Prometheus element seems to be weak, with respect to Dr. Miller,

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He is specifically pointing out, the judge is specifically pointing out that we have two individuals, Yuko, Dr. Yuko, as well as Dr. Miller, who are coming on board.

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What we believe is significant and relevant with respect to those individuals is this determination that these individuals were not proper comparators.

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with respect to whether or not there was a treatment that was disadvantaged to Dr. Steele versus these other individuals.

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That's the point that I want to talk about.

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Thank you.

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Okay.

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Thank you very much.

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Good morning.

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May it please the court, Peter Fappenroth, for the government.

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I agree with the questions that were being posed.

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I mean, as a threshold matter, the plaintiff never stated a prima facie case.

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And where did you just state a legitimate nondiscriminatory reason for firing him?

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You said you had to get rid of three people for budget reasons, but that doesn't explain why you fired

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It's a process of elimination, Your Honor.

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What was your legitimate reason for getting rid of him?

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Three spots had to be eliminated.

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Yes, and you've got to explain why you picked him, rather than the other three people that were left behind.

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And the reason was?

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And the reason is that they couldn't get rid of people for whom funding had not been cut, so that accounts for Dr. Uco.

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They did not get rid of Dr. Miller, because Dr. Miller was a specialist in Afghanistan and Pakistan, which the Joint Chiefs had told NDU to focus upon.

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And they did not get rid of Dr. Parker, who was 59 years old, because

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he had skills that were likewise incredibly valuable to NDU, and this court should not try to look too deeply into NDU's assessment of what its teaching needs were at that time.

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Why?

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Why?

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Why?

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Isn't that exactly... To determine whether something's legitimate and non-discriminatory, we have to look.

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I mean, the district court was wrong to say we can't look.

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Of course you have an obligation to

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inquire into whether there was an unlawful basis and a pretextual basis for removing someone, but at the same time, this court is not well positioned to evaluate, you know, particularly in the context of higher educational institutions.

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Why do you say particularly?

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I get you're saying it in the district courts, and I can't for the life of me figure out why when it comes to discrimination cases,

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that we assume or give any extra leash to those involved in education than we would to those involved in medical care, running the military itself, actually conducting wars, these types of things, but I don't understand where that comes from and you're arguing for it too.

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hinge upon that, Your Honor, but I do think that it is different.

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Because professors are not interchangeable the way that, for instance, a surgeon might be.

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Of course, every surgeon might be a little bit better at this surgery than at that surgery.

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But ultimately, most faculty members at most educational institutions have a specific focus on a specific area.

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Presumably that's why Dr. Steele was hired in the first place, though, right?

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It added, it was sort of a luxury more than... What?

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A luxury.

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You went after him.

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You offered him one thing and he turned it down.

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He had a certain set of skills that was valuable so he was hired and you're then saying somehow later those skills weren't quite so valuable?

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Ten months later.

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I'm not saying that those skills were not valuable.

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It was certainly valuable.

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It's him and Parker.

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I understand your argument about the funding.

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It hadn't been cut.

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That makes sense.

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And I understand your point about Miller, but I can't quite understand the distinction between Steel and Parker here.

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Well, the first point

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The plaintiff, the appellant, says he can't really compare himself to Parker.

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So he certainly considers Parker to be at least his co-equal.

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They were both folks with very impressive resumes.

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Why was Parker kept and Steele fired?

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Why?

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At the end of the day, if the question is simply Parker versus Steele, and I understand that to be where the court is going, Parker was

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Teague had very high reviews, and as the record establishes, if one is comparing 59-year-old Dr. Parker with 47-year-old Dr. Steele or 48-year-old Dr. Steele, Dr. Parker simply had shown himself to be even more valuable to the institution.

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Was that ever communicated to Dr. Steele?

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not in a way that he was required to, first of all, he's a probationary employee, so you don't have to give them an explanation.

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Well, you have to give a legitimate non-discriminatory reason.

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Yes, and the legitimate non-discriminatory explanation provided through litigation, which is the point at which this becomes relevant, is that Dr. Parker was

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had really thrived at the institution, and he was very, very valuable.

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Right, but then that's a disputed fact, because he says he had great reviews from students.

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And Steele doesn't know that they were all upset when he was fired.

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I'm talking about disputed facts.

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I have no idea what the truth is.

[00:17:02] Speaker 04:
But Steele doesn't actually dispute that Dr. Parker was qualified to remake.

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So if the question is simply Dr. Parker versus.

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Well, I'm sure he thinks that they were.

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He can agree with that and think he's regretting.

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he's just as entitled to remain as well.

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That doesn't get you to a legitimate non-discriminatory distinction.

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And then as to, is Miller the Afghan studies one?

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Is that right?

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Miller, yes.

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Right, and so again, you know,

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It seemed like Mr. Steele was chased, a great expert in his field, and was chased after enough that when he turned down North Carolina, came back after him again, just 10 months early, and said, okay, okay, okay, we'll let you, you know, please come, please come to DC or wherever this one was.

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And so what basis, other than the assertion that, well, we wanted the Afghanistan stuff, was there even for distinguishing between them?

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Sorry, for distinguishing between.

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The subject matter.

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They taught different subject matters, but you were in hot pursuit of Dr. Steele for what he taught just 10 months earlier.

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So I'm trying to understand.

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He was teaching.

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He had a background in economics.

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In the record, he also says he has a background in engineering and a background in history.

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And those are all relevant.

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And that's why he was initially recruited.

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But at the end of the day, a year in, the budget situation had changed.

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And they had to make some hard decisions.

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And they recently made the decision that, based upon the Joint Chiefs Directive, they were going to focus on central and south Asia.

[00:18:31] Speaker 01:
I have a couple of questions about the funding.

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One is, Dr. Uco, you said that his

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uh... funding for his position was security counter-terrorism fellowship program sorry there also was testimony though by doctor handlin that funding for the counter terrorism program was secure so that i thought that was an issue disputed page twenty-five she said that was secure so isn't that a kind of issue that's undisputed

[00:19:06] Speaker 04:
I think I'm misunderstanding what you just said, because the point was that the counterterrorism funding which provided for Dr. Uka was secure.

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And I don't believe there's a dispute in the record.

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There's nothing other than just assertions to suggest that it was not still in place.

[00:19:24] Speaker 01:
So that's the funding for...

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because i thought there were two different pieces of testimony one says it's it's not secure once as it is secure i'll have to follow up i don't know about finding out is that after this you have to people that are brought on so it was a very temporary funding problem it's just not really clear

[00:19:48] Speaker 01:
how there seems like there was a lot of turnover in the short period of time.

[00:19:52] Speaker 01:
And during that period of turnover, the number of people over the age of 40 dropped precipitously, but there were a lot of people brought on.

[00:20:01] Speaker 04:
First of all, Your Honor, it's a factual matter, even the statistics, such as they are.

[00:20:05] Speaker 01:
I think of it as sort of anecdotal evidence of

[00:20:08] Speaker 01:
of numbers.

[00:20:09] Speaker 04:
They actually show that people in their 40s and in their 50s, if you look at those 10-year periods, they actually increased between 2011 and 2014, based upon that very evidence.

[00:20:22] Speaker 04:
This is a point we made in our brief, and it's based upon the records that the appellant submitted.

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In any event, the people who were brought on

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around about the time that Dr. Steele was let go were people, again, who were focused on South and Central Asia, as opposed to the more generalist category of Dr. Steele.

[00:20:50] Speaker 04:
If the court has nothing further.

[00:20:52] Speaker 01:
So I'm just trying to identify, because I didn't mean to confuse you about the counterterrorism program.

[00:20:57] Speaker 01:
What I'm thinking about is

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on page 625 where Dr. Hanlon says there were continual discussions with the funding organization.

[00:21:09] Speaker 01:
There was discussion about billets being reduced.

[00:21:12] Speaker 01:
The funding was also going to be reduced for that program.

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at Fort Bragg as well as for the program, the counterterrorism fellowship program.

[00:21:21] Speaker 01:
She says the funding wasn't going to be reduced for that.

[00:21:23] Speaker 01:
So that was what made me think there was some amount of dispute about whether it was secure or whether it was actually in jeopardy.

[00:21:29] Speaker 04:
The rest of the record, Your Honor, I think I see what you're referring to, but I also see two hyphens before that, and it seems like that was, it's

[00:21:40] Speaker 04:
I don't believe that this is a particularly clear statement.

[00:21:44] Speaker 04:
She doesn't finish the sentence.

[00:21:46] Speaker 04:
It seems that she was interrupted.

[00:21:48] Speaker 04:
In any event, she doesn't actually say that the counterterrorism fellowship funding was being reduced.

[00:21:53] Speaker 04:
She's talking about other billets that are being moved around and that are being reduced.

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And there is clear evidence in the record that the counterterrorism fellowship program that funded Dr. Uco was not being reduced.

[00:22:03] Speaker 01:
But then she seems to say that Dr. Steele

[00:22:06] Speaker 01:
his funding was tied to that program so if it's secure then he would just as Dr. Uco have a secure footing or if it's not secure then that doesn't distinguish.

[00:22:18] Speaker 04:
I don't know what to read into the tied to that program.

[00:22:21] Speaker 01:
I don't either because I'm just reading this record but in terms of disputes it just struck me that you know

[00:22:27] Speaker 04:
Right, there's quite clear evidence in the record that there was a directive from on high at DOD that NDU had to get rid of 17 positions, 17 FTE positions on the research side, and they got rid of CISA's, or College of International Assay, a piece of that was going to be three positions, and they had to come up with three names.

[00:22:52] Speaker 01:
And can you fill us in at all on why they were quite quickly hiring two new employees?

[00:22:58] Speaker 04:
Because they had sought waivers earlier on and that that waiver would have in fact protected Dr. Steele and so that's evidence against

[00:23:07] Speaker 04:
you know, an animus based upon age.

[00:23:11] Speaker 04:
And while that waiver was being sought, and around about the time that the Joint Chiefs had said, go out and really build up your Afghanistan, Pakistan, Central and South Asia focus, they started that hiring process and

[00:23:26] Speaker 04:
Funding specifically for those kinds of positions was located, given the Joint Chief's emphasis.

[00:23:33] Speaker 04:
But just because there were some hiring decisions made around the time that the completion of an earlier removal process in order to try and right-size the CISA generally, given the funding limitations that had come to light.

[00:23:48] Speaker 04:
Just because those additional hiring roles were being made doesn't mean that they had to go back and undo decisions that had already basically been finalized, and we were simply waiting for the last day.

[00:24:00] Speaker 01:
And just to sort of fill us in on the nature of this, are there kind of permanent faculty at size, or is it more people come through for a stint of three years?

[00:24:11] Speaker 01:
I mean, is there a lot of turnover or not?

[00:24:15] Speaker 04:
I'm not an expert on the size of what I've seen in the record indicates that people tend to be on three-year terms.

[00:24:21] Speaker 01:
So this isn't like a typical college where people come and they stay for a big chunk or all of their career.

[00:24:31] Speaker 04:
It's not a permanent faculty.

[00:24:33] Speaker 04:
I'm informed by agency council.

[00:24:37] Speaker 04:
But what I've seen on the record is the three years that are referenced in a number of places that people have three-year contracts, basically the first of which is a probationary period.

[00:24:45] Speaker 01:
And do you have a position on Ford versus Mavis and whether you didn't argue that you met the age was not a factor, but I assume you think it's covered by the position that you've taken, which is age was not part of it at all.

[00:24:59] Speaker 04:
No, age wasn't a part of it.

[00:25:00] Speaker 04:
But I do think, actually, that in the context here, if you look at the complaint, she's seeking, or sorry, Dr. Steele is seeking back pay.

[00:25:10] Speaker 04:
And in light of that, but for is the standard.

[00:25:13] Speaker 01:
What about the evidence that Dr. Villanos said, you know, isn't it great working with young people and those old people are so stubborn and difficult?

[00:25:24] Speaker 01:
That seems to me to be

[00:25:27] Speaker 01:
Arguably, evidence that could move a jury to... But it's not relevant, Your Honor, because A, it's a stray remark, B... Well, that's a legal characterization.

[00:25:37] Speaker 02:
You just say, I don't want that to be... Well, I was going to hang on.

[00:25:40] Speaker 02:
If she had said instead, I'm so glad we've been hiring the white people.

[00:25:45] Speaker 02:
Those black people are so impossible to deal with.

[00:25:49] Speaker 02:
What a fresh air to have more white people.

[00:25:51] Speaker 02:
Would you stand here and say it's a stray remark?

[00:25:53] Speaker 02:
Or would you say,

[00:25:55] Speaker 02:
That's powerful stuff for a jury to consider.

[00:25:57] Speaker 04:
I would say I would go on to provide the rest of the exercise back to you.

[00:26:01] Speaker 02:
Would you say that that was a stray remark or not?

[00:26:06] Speaker 04:
If she was a decision maker, I wouldn't, I wouldn't have trouble making that decision.

[00:26:11] Speaker 02:
You don't have to be the decision maker, which cats paw liability.

[00:26:14] Speaker 02:
So trying again, would you say it's a stray remark if it said the same thing about race rather than about age?

[00:26:19] Speaker 04:
I would ask, is it around about the time that the decision was being made?

[00:26:23] Speaker 02:
You would, you can't tell me whether you would still call it, either it's a stray remark or not.

[00:26:27] Speaker 04:
I would be very troubled by that kind of remark.

[00:26:29] Speaker 04:
Exactly.

[00:26:30] Speaker 02:
Exactly.

[00:26:31] Speaker 02:
So age is just less protected in your view?

[00:26:34] Speaker 02:
It's okay to just brush that off as a stray remark?

[00:26:37] Speaker 02:
But it's not okay to brush off other forms of discrimination?

[00:26:39] Speaker 02:
Is it a lesser form of discrimination?

[00:26:42] Speaker 04:
What is a stray remark under this court's jurisprudences?

[00:26:46] Speaker 04:
largely in the eye of the beholding panel.

[00:26:49] Speaker 02:
There are a variety of... Usually direct statements about, I don't want to work with that protected class.

[00:26:54] Speaker 02:
I'd rather work with people outside that protected class.

[00:26:58] Speaker 04:
They're not straight remarks.

[00:26:59] Speaker 02:
That's not the record here, though.

[00:27:00] Speaker 04:
I mean, the record is that I don't want to work with people of the protected class.

[00:27:04] Speaker 02:
I'm so much happier to be working with people outside the protected class.

[00:27:07] Speaker 02:
Those in the protected class are cantankerous and difficult to deal with.

[00:27:13] Speaker 02:
What was said about race?

[00:27:14] Speaker 02:
Or about women?

[00:27:19] Speaker 02:
during the time of his 10 months tenure here?

[00:27:21] Speaker 04:
There are other factors that go in as well to the fact that she had just played a role in bringing on this particular individual, and so that was not a... That might be that you have other arguments.

[00:27:35] Speaker 02:
My only point is your characterization of it as a stray remark, which to be fair I think was a district court's characterization, but that's my concern.

[00:27:43] Speaker 03:
At what weight do you place on the fact that she was not involved in the termination decision?

[00:27:49] Speaker 04:
I placed weight on that.

[00:27:50] Speaker 04:
I mean, the fact is she was basically...

[00:27:55] Speaker 04:
She was a head of the department, but she was not in a decision-making role.

[00:27:59] Speaker 04:
I mean, she may have been a fly on the wall in a meeting where she talked about how Dr. Steele was doing.

[00:28:05] Speaker 02:
Where's your record for fly on the wall?

[00:28:07] Speaker 02:
She said, yeah, I had input.

[00:28:09] Speaker 04:
She said she was there, and she provided input.

[00:28:11] Speaker 01:
And she was a direct supervisor.

[00:28:13] Speaker 01:
So if I were the head honcho, I think that people whose input would be the most important to me would be the people who are directly supervising the individual.

[00:28:21] Speaker 01:
No?

[00:28:24] Speaker 04:
But at the end of the day, also, as I explained earlier, I think it's really the process of elimination approach that gets you to Dr. Steele has to go because the Buko and Miller are both really essential to the programmatic needs of the program.

[00:28:41] Speaker 02:
Dr. Miller That sounds like a disputed fact whether theirs was more essential than the others originally was just budget cuts, but that's not Legitimate non-discriminatory because that doesn't narrow it down So now it seems to be budget cuts made us decide that he's less qualified And then that seems to sound more like the type of thing.

[00:29:02] Speaker 04:
He's disputing There's there is in the record the letter

[00:29:08] Speaker 04:
at page DA 780 and 781 from 30th of August 2011 that provides, that explains the entire removal process and the entire analysis of Dr. Steele and his role at CESA.

[00:29:27] Speaker 02:
Yeah, but on 745 we have the loan house.

[00:29:28] Speaker 02:
I was involved.

[00:29:30] Speaker 02:
Right, I'm not disputing that she was involved.

[00:29:31] Speaker 02:
Not necessarily in decision, but yes, in discussions of issues that may be connected.

[00:29:33] Speaker 02:
And when she talks about, we're having these conversations.

[00:29:36] Speaker 04:
is not the right characterization.

[00:29:37] Speaker 04:
You're right.

[00:29:38] Speaker 02:
The only thing is, it sounds to me like the supervisor in Staub v. Proctor Hospital, which was the cat's paw case in the Supreme Court.

[00:29:45] Speaker 02:
It was the direct supervisor who didn't make the decision, but fed information to the decision maker.

[00:29:51] Speaker 02:
And that was held to be sufficient.

[00:29:53] Speaker 02:
And so what I'm asking is why, not fly on the wall, involved, yes, but not the decision maker, and making comments that are directly about preference for working with people outside of protected class, why those two together don't add up to a ground on which a jury could or could not find a cat's paw form of liability here.

[00:30:15] Speaker 04:
I'd also note that as we stated in our brief, Katz-Paul was not argued in this fashion in the district court, so it's been waived.

[00:30:24] Speaker 02:
What do you mean by has to be argued in this fashion?

[00:30:27] Speaker 02:
Don't they just have to come forward with summary judgment evidence that from which a jury could infer discrimination?

[00:30:34] Speaker 02:
Is there any law of this circuit that says you have to specifically have a distinct claim about cast polluted and claim this discrimination here?

[00:30:42] Speaker 02:
That's just one form of provenant.

[00:30:45] Speaker 02:
Where do you have to, what?

[00:30:46] Speaker 02:
Is there any authority that says you have to give them more than what they did?

[00:30:49] Speaker 04:
Look, the general rule is that we want arguments to be adjudicated in the district court first so that it facilitates appellate review.

[00:30:56] Speaker 04:
But she did make the argument.

[00:30:57] Speaker 01:
She did point to Bolanos' assessment as that she was part of the decision making.

[00:31:02] Speaker 01:
It seems like if you don't use the term CASPAW, that can't be the basis.

[00:31:06] Speaker 01:
I mean, just to say, here's somebody, here's her role, she was in the meetings.

[00:31:13] Speaker 01:
I'm not disputing that she wasn't the ultimate, ultimate decision-maker.

[00:31:16] Speaker 01:
There's nothing surprising about that presentation from the perspective of either the government or the district court.

[00:31:24] Speaker 01:
Is there, in terms of, oh, that's Katzpau, I didn't know?

[00:31:28] Speaker 04:
No.

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

[00:31:31] Speaker 04:
If the court has something further, I'd ask that the case be deferred.

[00:31:34] Speaker 03:
Thank you very much.

[00:31:34] Speaker 01:
Thank you.

[00:31:35] Speaker 04:
Thank you.

[00:31:40] Speaker 03:
This record will give you two minutes for rebuttal.

[00:31:45] Speaker 00:
I wanted to address, Your Honor, with respect to the issue of what was elicited from the Council about the reason.

[00:31:53] Speaker 00:
And it appears to be correct that the reason being offered is to the distinction between Dr. Steele has to do with this alleged belief that funding was not available.

[00:32:02] Speaker 00:
I think the record is clear that at the deferred appendix at 625, there is this discussion with respect to

[00:32:10] Speaker 00:
the counter-terrorism funding being cut as well, and specifically with the Fort Dragg billet, which is what Dr. Steele has been told he's working under.

[00:32:21] Speaker 00:
So to the extent that that is correct, then it does create a question, we believe, as to what is actually happening here, and a reasonable jury could conclude that this is offered as pretext.

[00:32:32] Speaker 02:
Can I ask you just, I'm just going to tell you up front the one thing that I'm having trouble getting past, and that is

[00:32:41] Speaker 02:
He was hired and fired by essentially the same people, Hanlon.

[00:32:49] Speaker 02:
And he was hired at 47.

[00:32:51] Speaker 02:
And just 10 months later, so now he's 47 in 10 months or something like that, fired by them.

[00:33:00] Speaker 02:
But replaced by people who were not substantially younger.

[00:33:07] Speaker 02:
Could a reasonable jury find age discrimination there?

[00:33:11] Speaker 00:
We believe yes, Your Honor, and here's why.

[00:33:13] Speaker 00:
How?

[00:33:13] Speaker 00:
With respect to the fact that he was both hired and fired in a very short period of time, we have to look at the totality of the record and the evidence in this case.

[00:33:21] Speaker 00:
And from the beginning, we've always asserted that Dr. Steele was brought there as a placeholder.

[00:33:26] Speaker 02:
The record is very clear that... Well, that might be... I don't understand why that's got to do with age discrimination.

[00:33:30] Speaker 00:
If I may continue.

[00:33:31] Speaker 00:
The record is very clear that if Dr. Steele's position had not in fact been filled, then the university would have lost the opportunity to have that particular position in its next budget.

[00:33:43] Speaker 00:
We also see then individuals who had not particularly had the opportunity to complete their theses coming on board, not really being as qualified in terms of

[00:33:54] Speaker 00:
professors with a Ph.D.

[00:33:56] Speaker 00:
in place, teaching experience, experience teaching, for example, military individuals or teaching at a military university.

[00:34:04] Speaker 00:
And so with respect to the issue of whether or not this was, I believe and we believe, Your Honor,

[00:34:11] Speaker 00:
Calculated in in terms of the reason I think that it very much diminishes this issue of I hired him and then a few months later I'm firing him.

[00:34:20] Speaker 00:
I believe age was actually the motivating factor.

[00:34:22] Speaker 00:
There was never no genuine a genuine intent So you think placeholder means age?

[00:34:27] Speaker 00:
Well, I'm saying in this case they held him and

[00:34:29] Speaker 00:
His age was a reason why he was not considered a good fit.

[00:34:33] Speaker 00:
And as you'll know from this record, he is repeatedly referred to as not being a good fit.

[00:34:37] Speaker 00:
And we are speaking in that way.

[00:34:39] Speaker 00:
The last point that I wanted to make with respect to this record is that with respect to the decision about OCO, it is correct that this individual was coming in to teach particular programs in counterintelligence.

[00:34:52] Speaker 00:
But we cannot overlook the fact that with this particular record, it shows that Dr. Bell, when he was questioned,

[00:34:59] Speaker 00:
acknowledged that Dr. Steele had teachings, and this record shows that Dr. Steele taught with respect to the regions, both in Afghanistan, Pakistan, and in the South Asia region as well.

[00:35:13] Speaker 00:
This was information that Dr. Steele provided to Colonel Bell to show him why he was able and allowed to work in these particular departments.

[00:35:22] Speaker 02:
Where's the Joint Appendix after that?

[00:35:25] Speaker 02:
Your indulgence.

[00:35:28] Speaker 02:
you don't have a handy.

[00:35:29] Speaker 00:
Certainly I do I believe I have it here.

[00:35:41] Speaker 00:
Not to hold you up.

[00:35:42] Speaker 00:
You're on this.

[00:35:42] Speaker 00:
I will provide that particular point in the record where Dr. Bell acknowledges that he did not read Dr. Steele's file.

[00:35:49] Speaker 00:
So we submit that that is further evidence that making these alleged decisions that

[00:35:53] Speaker 00:
Dr. Uka was more an appropriate person because of the teachings in Afghanistan and South Asia.

[00:36:02] Speaker 00:
Again, subject to pretext because there is just no reasonable juror could conclude that you're simply saying that as pretext to mask the actual discrimination in this case.

[00:36:13] Speaker 00:
And with that, I would ask that this court, based on the evidence in this record and the arguments presented today, remand this matter forward to proceed and go forward with trial.

[00:36:21] Speaker 00:
Thank you for your time.

[00:36:22] Speaker 03:
Thank you very much the case is submitted.