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Case number 13-7060, Ernest Durant, appellate versus District of Columbia government.

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Mr. Shelley for the amicus curiae, Ms.

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Johnson for the appellee.

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Good morning, and may it please the court.

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I'm Anthony Shelley, here on behalf of the appellant, Ernest Durant.

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Mr. Durant alleges in this case that for 10 years between 2000 and 2010, his employer, the District of Columbia, took purposeful and systematic adverse action against him, ultimately resulting in his termination, all in retaliation for filing discrimination lawsuits and complaints.

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against the district.

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The district court faulted both sides for a disorganized record, but nonetheless entered summary judgment for the district and against Mr. Durant.

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And while the district court's frustration is understandable, it was wrong to enter summary judgment against him for a variety of reasons, dividing into

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the periods at issue between 2000 and 2010.

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And I'd like to get to that in a second, because I'd like to address subject matter jurisdiction first.

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The court appointed me in order to address that issue.

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And so I'd like to give a brief run through.

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I think if the government agrees to subject matter, why don't we just pause and see whether anybody on the bench has a problem or question about subject matter jurisdiction?

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No.

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I think you won the point.

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Excellent.

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Good start.

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Then I'd like to divide the case into the episodes the district court did, which is, first of all, it said there were essentially three segments to the retaliation claim.

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First of all, there was the adverse action prior to October 1st, 2007.

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Then there was the adverse action post

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October 1, 2007 that didn't include the RIF, the reduction in force, and then there was the reduction in force.

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It dismissed, or, excuse me, entered summary judgment for the district on different grounds for each of those episodes.

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So with respect, first of all, to the pre-October 2007 episode, the district court said Durant conceded this point, that it was untimely, that his challenges

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to the pre-October 2007 adverse actions that they failed to exhaust with the EEOC or the Human Rights Commission.

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The district made the argument.

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He didn't respond to it at all.

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And as a result, the judge entered summary judgment based on concession.

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That's now wrong under the Winston and Strahm decision issued by this court in the meantime, which says that summary judgment can't be entered on concession.

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So that has to be vacated.

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The only argument... But the court went on to say that it considered the record.

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Well, it had a footnote.

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Yeah, well, that doesn't really matter, does it?

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But in any event, let's forget the fact that it is a footnote.

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I note that.

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But the court went on to say that I deem it conceded, which is wrong.

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It's a legal error.

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It's a mistake.

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But then the court said it went on to look at the record in its own conclusion.

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Yes, no.

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It reached the wrong conclusion in the footnote.

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First of all, I said it noted this, but it's deemed to be an alternative holding, for instance.

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It was a wrong conclusion for a number of reasons.

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First of all, it didn't, on the, this exhaustion defense, it was the district that had the burden of proof.

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So it had to, in order to get some judgment.

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So this is an argument that you don't make until your reply brief, which I think is a correct argument, that it's affirmative defense.

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But nobody made that argument below, and you didn't even make it until your reply brief, that timeliness is an affirmative defense.

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That is true, but we did argue at the very start in our opening brief that in fact the district court wrongly put the burden on him for summary judgment.

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As to everything.

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Which is wrong under Seletex.

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Either that or you were misinterpreted.

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Well the burden, since the plaintiff has the burden,

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On summary judgment, in the end, the burden is on the plaintiff.

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That's what the court held expressly in cell attacks.

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That's what we held in crimes.

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So the only way you are correct about this is that the burden actually is different with respect to an affirmative defense.

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Well, no, I think, in Grimes, the court held that the moving party has a burden.

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And the burden is to identify the bases for summary judgment that you're seeking and to point to the parts of the record that show there's no dispute.

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And the court specifically adopted Justice White's concurrence in Seletex, noting that you don't have to come forward with your own affirmative evidence, but you must point to evidence in the record.

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So you have a situation here, and I think this is

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It seems to be putting out this way.

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You have a situation where the defendant is effectively saying, we're responding to that responsibility under Rule 56, there's nothing there.

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There's nothing for us to point to, because in our view, the record is deficient.

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It's the void of that which the plaintiff carries the burden of showing.

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So the plaintiff still carries the burden to prove

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the case and the defendant has to say something in support of the motion, but the defendant can say there's absolutely nothing in the record.

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And the defendant should then point to the parts of the record where there's nothing.

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No, no, no, that makes no sense.

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I was afraid you would say that.

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That makes no sense.

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Why can't I come as counsel and say, Iran, I've read everything in here.

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I'm not going to try and make up something and then cut it down to make the point.

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I'm telling you there's absolutely nothing in the record and they are not asserting any basis

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Well, I think the proper way for the district to have done this was to point to, whether it's his deposition or the exhibits, for instance, to his opposition to the motion for summary judgment and say there's nothing in there that says he filed any EEOC claims.

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I don't mean to interrupt, but I want to catch the point.

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I forget things too quickly.

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Suppose the plaintiff has not identified any of those things.

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But he has.

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As satisfying his obligation to file.

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Does the record indicate that he?

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Yes.

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So the district court in the footnote says there's nothing in the record.

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Before we get to that, now you're saying there is evidence in the record.

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I just want to be clear about the burdens here, OK?

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So imagine that the plaintiff's complaint says, I was discriminated against by an adverse action on October 18th, OK?

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There is no evidence in the record of anything ever happening on October 18th.

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Nothing in the depositions, nothing in the affidavits.

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Isn't it enough for the court to say there is nothing in the record about October 18th?

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Yes.

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And is it enough for the defendant to say there's nothing in the record?

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Yes.

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The moving party should say, I've looked through the interrogatory responses.

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I've looked through the deposition testimony.

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There's nothing in here that suggested an event occurred on that particular day at all.

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OK, but so here it's the court's, because it's conceded, in the sense that nothing is, there's no answer, it's the court's obligation to look at the record.

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The court looked at the record, and the court said,

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I don't see anything indicating a timely charge.

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So that should be the end of it, unless now you say there is something in the record.

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Then we have a totally different point.

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We shouldn't just jump to that if you think there really is something.

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But it's important to the other parts of the case, though, exactly, that this burden, who has the burden when you are a moving party on summary judgment and you don't have the burden of proof.

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It's a difficult issue, and it's one that Celotex treats both in justice, whites, and in currents, and in justice.

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I don't think this is difficult.

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This is something we do every day, every summary judgment.

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This is not difficult.

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There has to be something that you're

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at, and we're trying to figure out which way you're arguing it.

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Well, in this case, the district should have pointed to the parts where Mr. Durant of the record, where Mr. Durant was talking about his prior filings with the district and with the EEOC and said there's nothing.

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Wait, let me back up a little bit.

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Did Durant at some point, are you arguing that Durant at some point indicated to the court and to the opposition, here's what I think satisfied my filing requirement

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Satisfy the 100-day, 180-day requirement.

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Here's the thing I'm looking at.

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This is what I'm resting on.

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So now we move on to where Chief Judge Garland said that's what I should have argued in the first place, which is yes.

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So he files, he includes in his summary judgment

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opposition, he includes the right to sue letter that the EEOC sent him, which comes in October of 2009, the end of 2009, noting, we're not, we haven't acted on your EEOC complaints, we're not going to, so you can go to court, which makes it absolutely clear the footnote's wrong, that he did fight.

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Well, which complaint was that referred to?

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You gotta be, there has to be something within the 180 days.

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Yes.

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What was it?

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How do you get me there?

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That is, the plaintiff is asserting I did file within 180 days.

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How does the paper show me that?

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And where did he argue that?

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So at page 387 of the appendix, his lawyer below files opposition to summary judgment and says, beginning in 2007, Mr. Durant filed numerous complaints through the Office of Human Rights and the EEOC

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Asserting inter-reality of discrimination based on reprisal under Title VII and age under the ADA.

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This is page AA 387.

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This is his response to the summary judgment motion and the district court didn't see this.

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What was the evidence he was pointing at?

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This is not evidence.

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This is a brief.

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Correct.

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That is the one thing I will say is deficient about the summary judgment presentation below.

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There isn't citation after each thing as to where this is in the record.

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But I do note that the right to sue letter appears then in the record at page 496.

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But that's October 2009.

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Correct.

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But it notes in the next page that he at least filed, he at least filed, the next page notes that he at least filed complaints in August of 2009.

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And he notes... But that's too late.

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It has to be something within 180 days.

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Well, 300 days before, if the statement in the summary judgment motion, the opposition, is correct, that he filed in 2007 things that the DC Human Rights Office... Point me to something.

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What's your best argument there?

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Is it the pre-complained EEOC form that he...

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Yes.

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Signed on September 26th?

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In the record.

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I obviously didn't create the record below, but that's the best thing in the record.

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Right.

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That's the best thing, right?

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That's the best thing.

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In 2007 he filed the pre-complaint.

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Okay.

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But he says in addition in his opposition and his complaint and elsewhere that he filed in 2007 a number of other complaints.

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There are other things, but I don't get you to be arguing with that they would satisfy the filing requirement.

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Well, I don't know because I don't know what the exact facts are.

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The only thing in the record is the pre-complaint file.

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Now, do you think the 2009 letter from the EEOC is referring back to that pre-complaint form?

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Again, I don't know.

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But it's a disputed fact.

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And the summary judgment shouldn't be granted if there's a dispute about this.

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Look at the top of 496.

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It has the complaint number.

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570-2008-00315.

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What page are you looking at?

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496.

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This is the practice food letter you're talking about, right?

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Yes.

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And now look at AA 110, which is the charge he filed with the EOC.

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What date is that?

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That's August 2008.

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And if you look at the top, it's the same charge number.

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No, that's, I will.

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So it can't be, this is what this.

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Based on this record.

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This is what this charge is about, yeah.

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That's what this charge is about.

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And if this were the only thing in the record, if this is the only evidence in the record that that's the only EEOC charge he felt he'd have 300 days prior to that.

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So you wouldn't have the, you wouldn't have the transfer which occurred more than 300 days before that.

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You wouldn't have the administrative leave.

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he wouldn't have things that early 2007 all the way through back to 2000.

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But it's all the way through August.

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It's all the way through the last of the 2007 things he's complaining about.

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The administrative leave ended August 13th and he was transferred August 14th.

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Correct.

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Those things would be outside this limit.

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But I

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His statements in his summary judgment opposition, plus the pre-complaint that was filed in 2007, his indication that he filed things at the Human Rights Office, they may not be properly

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properly documented in this record.

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And at least our position in the district court should have, before granting summary judgment, should have at least brought this up to Durant and given him an opportunity to state why those are adequate.

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I also wanted to mention that he does make statements in his complaint and elsewhere that

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that the district hid evidence from him throughout.

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Every time they would do something to him, he would ask for the reasoning for it.

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He would ask for the record.

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He would ask for copies of various things that he knew were going to be in his personnel file as a result.

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And he never got them until very late, until 2009, I think he said.

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As a result, you could argue there's some kind of a tolling that goes on or a concealment as a result that he couldn't file the right EEOC trust.

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He didn't make any argument like that.

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He didn't.

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He didn't, but he didn't respond at all.

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And he was pro se by the time.

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No, but not.

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Not at this point, right?

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In the position for summer judgment, he did have an attorney.

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So that was the one episode.

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There are obviously two other episodes.

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And I see them into my rebuttal time already.

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And the only thing I guess before.

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I'd like to just go over the RIF for a second, because the RIF was something that was at first.

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And the District Court found though that the District of Columbia had put forth an adequate, legitimate reason for getting rid of Mr. Duran.

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But we made two points on that.

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One was that

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The person who supposedly stated this legitimate reason wasn't the decision maker, and the district never cited it as a legitimate reason.

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The district board only found it on its own.

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The district never made this argument that the RIF was a legitimate reason for getting rid of

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that was based on economics rather than retaliation.

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So that's the first reason we gave.

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The second reason we noted is that there's circumstantial evidence that his termination occurred quickly after his filing of the complaint in the district court and in

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and another one at the EOC, which was circumstantial and enough to get this to the jury.

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Plus, we had the same officials being cited by the PERB previously for retaliation.

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Some of the workers were rehired.

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He wasn't rehired.

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And if this was all economic-based, why were these people rehired?

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And he was the only one escorted out of the office with a riff and given administrative leave, which indicates he was single about.

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So we think there was enough evidence on that to get this to the jury.

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And I see my time is up.

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Further questions?

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Good morning.

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May it please the court?

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Holly Johnson for the District of Columbia.

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The live claim that is before this court is the 2010 riff.

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That's the claim that was properly preserved.

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That is the claim which clearly involved a materially adverse action.

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And so that's the claim I want to address today.

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Mr. Durant never offered evidence that the district's reasons for taking that action were pretext.

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The district in its statement of material facts, in its motion for summary judgment, stated that the separation was due to a reduction in force.

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Reduction in force is a term of art that is not personal to the individual.

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It explained that it abolished the entire warrant squad.

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And then there was other public record evidence that the district court relied on that stated that because of budgetary reasons, I think well known throughout the district and cited in many cases, there were a lot of rifts around that time,

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that the department had to abolish 45 full-time positions, and those are positions that's not getting back, and it had to separate 13 people, and part of that decision was abolishing the warrant squad, and Mr. Grant was in the warrant squad, and there's been no evidence to challenge that legitimate, non-retaliatory reason for taking action.

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Now, let's suppose, I guess,

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I want to make sure I understand what the district's position is about how summary judgment is supposed to work.

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So that we can.

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You know, address that.

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So.

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My view.

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I want to see if you agree with this.

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Is that summary judgment motion by a defendant?

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With respect to the elements of the cause of action, the defendant can file essentially a one-page motion that says, we're being sued for claim A, and the elements of that cause of action are one, two, three, and four.

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And the plaintiff has no evidence of any of those elements or no elements, no evidence of element four.

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And therefore, we're entitled to summary judgment, end of motion.

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And then the plaintiff has to come back because he has the burden of proof and say, no, that's not right.

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There's a disputed issue of material fact as to element four.

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and here's my competent evidence in support of my proof of element four.

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And if they do that, and the defense does nothing else, then motion is denied.

[00:19:53] Speaker 02:
And you're gonna have a truck, right?

[00:19:57] Speaker 00:
Yes, if the record as a whole, based on the evidence introduced by the defendant, that's different from your hypothetical, but based on the evidence introduced by any party, it all turns into one record.

[00:20:08] Speaker 00:
If the evidence as a whole is insufficient for a jury to find that the misconduct alleged occurred, then the summary judgment is warranted.

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And if the evidence is sufficient, then they go to trial.

[00:20:23] Speaker 02:
But the point is that the defense doesn't have any burden to kind of like put forth where the absence of evidence is in their motion.

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They can just say there is no evidence as to element four.

[00:20:36] Speaker 00:
That's correct.

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And it's even a bit strange to say that they need to point to places in the record where there's no evidence, because the record is being created.

[00:20:44] Speaker 02:
But if your defense is an affirmative defense, then it's flipped.

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or not flipped.

[00:20:53] Speaker 02:
It's it's it's it's we move for summary judgment on our affirmative defense.

[00:21:01] Speaker 02:
And here is our evidence establishing our affirmative defense that is not or can't be controverted.

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And you have to point to that evidence

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in order to get summary judgment.

[00:21:16] Speaker 02:
Just like if a plaintiff filed for summary judgment, they can't just file something and say, we win.

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They have to point to the evidence supporting the elements of their claim.

[00:21:32] Speaker 04:
Let me make sure I understand the answer.

[00:21:35] Speaker 04:
I understood, at least implicitly,

[00:21:38] Speaker 04:
That your answer to that, although I'm not sure any of this was fully joined, was that in a case of time that's all right, we have the burden of proof.

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It's an affirmative defense.

[00:21:50] Speaker 04:
But we can say nothing was filed.

[00:21:54] Speaker 04:
There's nothing else for us to point to.

[00:21:56] Speaker 04:
And we can go through every page and show you that nothing was filed that would satisfy the law.

[00:22:01] Speaker 04:
But we'd rather just say, it's not there, we can't find it, we've combed every pig.

[00:22:06] Speaker 04:
That's your argument, I think.

[00:22:07] Speaker 04:
That is our argument, and I- That's your satisfying, and it's all you, as I'm understanding you, you're saying it's only if a plaintiff is pointed to something, you can say,

[00:22:18] Speaker 04:
No, we carry the burden to show, and we will carry the burden to show, that that doesn't need it.

[00:22:23] Speaker 04:
But your argument is the plaintiff hasn't pointed to anything, and we can't find it.

[00:22:27] Speaker 00:
That's correct.

[00:22:28] Speaker 00:
And I have a couple other points I'd like to make under this, because I think it's important.

[00:22:32] Speaker 00:
This court has held that

[00:22:35] Speaker 00:
the requirement to exhaust your administrative remedies under the EEOC is an affirmative defense.

[00:22:42] Speaker 00:
But not all affirmative defenses are created equal.

[00:22:46] Speaker 00:
And this court has never held that the defendant has an evidentiary burden of proving a failure to exhaust.

[00:22:53] Speaker 00:
And indeed, had that been raised below, I feel certain we could have put up an affidavit that said, hey, we looked.

[00:22:59] Speaker 00:
We sought this information.

[00:23:01] Speaker 00:
The point is that Mr. Durant knows

[00:23:04] Speaker 00:
whether he filed an EEOC charge.

[00:23:07] Speaker 02:
But your brief before us doesn't even say what you think the charge was and what dates are encompassed.

[00:23:14] Speaker 00:
Because that information isn't in the record.

[00:23:16] Speaker 00:
Now, the motion to dismiss, the motion to dismiss record includes... So how are we supposed to resolve it?

[00:23:23] Speaker 02:
Well, Mr. Durant has... On the defense that you're bringing and you're saying the information isn't in the record and you don't identify it in the brief, but we're just supposed to decide it?

[00:23:31] Speaker 00:
Mr. Durant has to show that he has exhausted his administrative remedies.

[00:23:36] Speaker 00:
Indeed, I will note that there are some circuits that don't even treat the affirmative defense of exhaustion with the EEOC similar to other affirmative defenses.

[00:23:48] Speaker 00:
It's a condition precedent to suit that is set forth in Title VII itself.

[00:23:53] Speaker 00:
And Mr Durant has never alleged himself personally that he made an EEOC charge prior to August 2008.

[00:24:03] Speaker 00:
The district based its argument.

[00:24:04] Speaker 02:
He said he says in his complaint and he says in opposition to summary judgment.

[00:24:10] Speaker 02:
Hey, I have a right to sue letter.

[00:24:12] Speaker 00:
He does have a right to sue letter, but it does not show that he made a timely charge for the pre-October 2007 claims.

[00:24:19] Speaker 00:
In fact, the right to sue letter refers back to the August 2008 charge.

[00:24:23] Speaker 02:
So what precedent can you point to from this circuit that says that the plaintiff has to provide the charge

[00:24:33] Speaker 02:
in order to make out his case.

[00:24:38] Speaker 00:
Well, let me be clear with what I'm saying.

[00:24:39] Speaker 00:
I'm not saying he has to produce the charge.

[00:24:42] Speaker 00:
I'm saying he has to produce some evidence that he made a charge.

[00:24:45] Speaker 00:
I think an affidavit might do something for that.

[00:24:48] Speaker 00:
He is nothing.

[00:24:50] Speaker 02:
The right to sue letter says that there was a charge.

[00:24:53] Speaker 00:
Right, and it refers to a number to the charge, and that charge was filed in August 2008, which is too late for the pre-October 2007 claims.

[00:25:05] Speaker 02:
But your brief doesn't even refer to that as a charge, and your brief said that the record suggests that Durant filed an EEOC charge at some point before April 2009.

[00:25:21] Speaker 00:
That's correct.

[00:25:21] Speaker 00:
I was basing my brief on the right to sue letter in the summary judgment record.

[00:25:25] Speaker 00:
As I just noted, the August 2008 charge is in the motion to dismiss record, which I wasn't looking at until it was included by amicus in the appendix.

[00:25:34] Speaker 00:
It's not actually part of the summary judgment record.

[00:25:36] Speaker 00:
So now I recognize that there is an August 2008 charge.

[00:25:40] Speaker 00:
There's no evidence of a charge before then.

[00:25:42] Speaker 00:
It is a condition precedent to suit

[00:25:44] Speaker 00:
The district does not have access to this information.

[00:25:48] Speaker 00:
The district does not get information from the EEOC unless a charge is filed.

[00:25:53] Speaker 00:
And Mr. Durant has never, aside from claims made by his attorney, he has never claimed

[00:25:59] Speaker 00:
that he made an EEOC charge prior to that, not in this appeal, not in the litigation below, and nobody argued below that the district had to produce affirmative evidence of like an affidavit saying we couldn't find this in the record.

[00:26:13] Speaker 02:
So let me put my old hat as a district court judge back on, because one thing that drove me crazy

[00:26:22] Speaker 02:
was trying to pick through summary judgment motions where the parties made a bunch of arguments, but she couldn't figure out where the evidence was in support of any of those arguments.

[00:26:35] Speaker 02:
So you're saying that the way that this plays out for district court judge.

[00:26:40] Speaker 02:
is that the defense can just say, there's no evidence of a charge, and we don't have to really look for it.

[00:26:49] Speaker 02:
We don't have to take any discovery from the plaintiff on it or from the EEOC on that issue.

[00:26:55] Speaker 02:
And if the plaintiff doesn't present it,

[00:27:01] Speaker 02:
then you still have to grant summary judgment to us and guess on what the date of the charge is, Judge.

[00:27:10] Speaker 02:
That's the way the summary judgment in these cases is supposed to work.

[00:27:14] Speaker 00:
I have two responses to that.

[00:27:16] Speaker 00:
Number one is that's the way that the summary judgment on Title VII exhaustion occurs

[00:27:20] Speaker 00:
on a daily basis in the district court, that is the way it's done.

[00:27:24] Speaker 00:
And my second response is the plaintiff didn't respond.

[00:27:28] Speaker 00:
And while Winston and Strawn says that a district court can't refuse to consider the merits, it does not say that the district court cannot consider factual questions forfeited.

[00:27:39] Speaker 00:
In fact,

[00:27:40] Speaker 00:
It says that the district court can view facts as undisputed.

[00:27:44] Speaker 00:
And the District of Columbia asserted that Mr. Durant had not exhausted his administrative remedies by filing an EEOC charge for any claims pre-October 2007.

[00:27:56] Speaker 00:
And he did not respond to that.

[00:27:58] Speaker 00:
The district court could treat that fact as conceded as well.

[00:28:02] Speaker 02:
So if you had filed in your opposition or in your motion for summary judgment,

[00:28:10] Speaker 02:
that there was a riff and that's why he was terminated but presented no evidence and he didn't respond to that.

[00:28:21] Speaker 02:
he just filed no response, then summary judgment could be granted as conceded because you would just say that that's a fact that he didn't respond to.

[00:28:31] Speaker 00:
Well, and that's where there's some tension between Winston and Strong, which there hasn't been any follow-up cases on, so we don't really know the scope of that.

[00:28:39] Speaker 00:
There's some tension between that and the rules regarding forfeiture and the statement that you can treat a fact as conceded.

[00:28:44] Speaker 02:
Why isn't that hypo the exact same as the circumstance with this exhaustion point?

[00:28:50] Speaker 00:
because Mr. Durant did respond to our motion for summary judgment.

[00:28:54] Speaker 00:
He responded with every claim he wanted to pursue, and he didn't respond with regard to the pre-2007 claims.

[00:29:01] Speaker 00:
Again, this happens a lot.

[00:29:02] Speaker 00:
In fact, when the district filed its motion for summary judgment, it had

[00:29:07] Speaker 00:
no idea what claims Mr Durant was actually bringing.

[00:29:10] Speaker 00:
His complaint had been filed many times and it was very confusing.

[00:29:13] Speaker 00:
They didn't know if he was pursuing union claims.

[00:29:16] Speaker 00:
They didn't know if he was pursuing race and age claims.

[00:29:19] Speaker 00:
The district did the best it could.

[00:29:21] Speaker 00:
The trial counsel did the best they could to present a motion that explained the problems with all the different claims.

[00:29:26] Speaker 02:
What about the language at 387 that your friend on the other side just pointed out?

[00:29:32] Speaker 00:
In the opposition to summary judgment?

[00:29:34] Speaker 02:
Yeah.

[00:29:34] Speaker 00:
That's an assertion by counsel with no citation to the record.

[00:29:38] Speaker 00:
This record is full of assertions by that attorney with no citations to the record.

[00:29:42] Speaker 00:
Some of them are supported, some of them are not.

[00:29:46] Speaker 00:
That's not evidence, and this court has never held that it is evidence.

[00:29:50] Speaker 00:
And considering the fact that Mr. Durant, even when he has filed his own motions before this court, has never said, I remember filing a charge with the EEOC, he would know he has to file it under oath.

[00:30:02] Speaker 02:
So every assertion

[00:30:05] Speaker 02:
Every every evidentiary assertion that the district made in its brief was accompanied by a statement of undisputed fact where it set forth that assertion and the evidence that supported that assertion the way that the local rules require in his motion below.

[00:30:25] Speaker 00:
Absolutely not.

[00:30:27] Speaker 00:
No.

[00:30:28] Speaker 00:
The briefing definitely could have been better below.

[00:30:30] Speaker 02:
Well, I mean, isn't sauce for the goose sauce for the gander?

[00:30:33] Speaker 00:
No, because the district on this point did raise this point.

[00:30:37] Speaker 00:
There are other points that perhaps weren't as well supported.

[00:30:41] Speaker 00:
But the district court went through, looked at the record, and that's what this court is looking at.

[00:30:45] Speaker 00:
This court is looking at the record and found that there was no evidence to support a claim.

[00:30:50] Speaker 04:
It's interesting.

[00:30:50] Speaker 04:
You're almost arguing, if you take only the pre-2007 issues that we're talking about, and that's all the case is about,

[00:31:02] Speaker 00:
no and that this court has ruled on it is outside of the record we would have to say there

[00:31:15] Speaker 00:
There is no charge.

[00:31:17] Speaker 00:
And while we're talking about this, I'd like to address this Brown case, because this case is a case that Amicus has cited to support the claim that the district had to produce evidence.

[00:31:26] Speaker 00:
And Brown is quite different from the situation with Title VII.

[00:31:30] Speaker 00:
In Brown, this court said that the agency there did not allege any breach of a fixed limitations period, and thus made no colorable showing of non-exhaustion.

[00:31:42] Speaker 00:
Here, we did allege a violation of a fixed limitations period, so we did make a sharing.

[00:31:47] Speaker 03:
And Brown, the evidence, the court said the evidence was in the hands of the defendant.

[00:31:50] Speaker 00:
That's correct.

[00:31:51] Speaker 00:
It said the relevant records are in the defendant's custody.

[00:31:53] Speaker 00:
Those are things that make it very different.

[00:31:55] Speaker 00:
I think that, again, this is an affirmative defense, but it is a condition precedent written into the statute, and it would be

[00:32:03] Speaker 00:
a huge waste of resources to require a defendant to find out whether a plaintiff has filed a charge when the plaintiff always has that information.

[00:32:12] Speaker 00:
It is signed under oath.

[00:32:14] Speaker 00:
A plaintiff should know whether they filed an EEOC charge.

[00:32:17] Speaker 00:
So the only thing this court has ever held that is bound by here is that the complaint doesn't have to state that.

[00:32:25] Speaker 02:
But it's not that.

[00:32:26] Speaker 02:
It's not that clear as to what is a charge and what isn't a charge, right?

[00:32:31] Speaker 00:
It is clear.

[00:32:32] Speaker 00:
It has to be under oath.

[00:32:34] Speaker 00:
It has to be with the EEOC.

[00:32:35] Speaker 00:
They have a form.

[00:32:36] Speaker 02:
This court has held... It doesn't have to be on the form, though.

[00:32:39] Speaker 00:
No, but it has to be under oath.

[00:32:40] Speaker 02:
It doesn't have to be on the form that says chart.

[00:32:42] Speaker 00:
it has to be under.

[00:32:43] Speaker 02:
Okay, so so he sends a letter to the EEOC or brings a letter in and has a notarized affidavit attaching that says I want you to bring a claim against the District of Columbia for all of these 100 reasons and it's signed under oath and notarized.

[00:33:04] Speaker 00:
That way may well be a charge.

[00:33:05] Speaker 00:
That's not what this case is about.

[00:33:07] Speaker 00:
That may well be a charge.

[00:33:07] Speaker 02:
But my point is that it's not so simple to discern always what is a charge.

[00:33:14] Speaker 00:
And that's why it's not something that you do on a 12b6.

[00:33:17] Speaker 00:
Again, like I said, I believe that we would have had a factual question if Mr. Durant had just said in an affidavit

[00:33:24] Speaker 00:
that he filed a charge and then we could have had a dispute over that fact whether he actually filed the charge.

[00:33:29] Speaker 00:
The point is there's no admissible evidence.

[00:33:32] Speaker 02:
So for an affirmative defense where you have the burden, he has to put something in the record that shows that at least there's like a prima facie case against your affirmative defense.

[00:33:51] Speaker 02:
I don't understand how this is supposed to work.

[00:33:54] Speaker 00:
This court has never held that Title VII exhaustion is an affirmative defense that must be factually proven by the defendant.

[00:34:03] Speaker 00:
All it has held is that the plaintiff doesn't have to do that.

[00:34:06] Speaker 02:
Well how does an affirmative defense work if that's not how it works?

[00:34:09] Speaker 00:
Well, I would urge you to look, and I could provide you with citations to the 10th Circuit.

[00:34:13] Speaker 00:
There are other courts that have looked at this and have said it's a condition precedent to suit.

[00:34:17] Speaker 00:
Yes.

[00:34:18] Speaker 02:
Are these cases that you cited in your brief or different cases?

[00:34:22] Speaker 00:
No.

[00:34:22] Speaker 00:
This question that you're asking me did not come up in this appeal.

[00:34:26] Speaker 00:
The question in this appeal was whether there was evidence in the record.

[00:34:33] Speaker 00:
I think it would be futile to remand for a question where there is no factual dispute at this point.

[00:34:39] Speaker 00:
Again, I see my time is up.

[00:34:41] Speaker 00:
I'll just say again, Mr. Durant has never asserted that he exhausted his administrative remedies with this.

[00:34:46] Speaker 02:
Well, there's a letter from Mr. Durant to the Office of Human Rights at AA 472 from November 2007.

[00:35:01] Speaker 00:
Yes.

[00:35:02] Speaker 00:
First of all, hang on.

[00:35:04] Speaker 00:
Is this one actually to the Office of Human Rights?

[00:35:05] Speaker 00:
Yes.

[00:35:06] Speaker 00:
OK.

[00:35:06] Speaker 00:
Sorry.

[00:35:06] Speaker 00:
Some of them are to the EEO officer, and those are important to distinguish.

[00:35:10] Speaker 00:
Yes.

[00:35:10] Speaker 00:
Yes.

[00:35:10] Speaker 00:
It's not sworn.

[00:35:11] Speaker 00:
It's a letter.

[00:35:12] Speaker 00:
It's like a pre-complaint form.

[00:35:14] Speaker 02:
And it talks about things that are attached.

[00:35:16] Speaker 02:
I mean, part of it is that I don't know whether we have all the attachments.

[00:35:24] Speaker 00:
Well, I don't know whether we do either, but again, Winston and Strong does not say that the court can no longer require an opponent at summary judgment to make an argument and point to things in the record.

[00:35:35] Speaker 00:
That would pose a horrible burden on the district court.

[00:35:39] Speaker 00:
What Winston and Strong says is you can't treat it as conceded.

[00:35:43] Speaker 00:
If there was something that Mr. Durant had that showed that he had filed something sworn under oath that counted as a charge, then we would have a factual question here.

[00:35:57] Speaker 00:
But we don't.

[00:35:59] Speaker 00:
And this court is certainly not bound to- You took the position at summary judgment

[00:36:05] Speaker 02:
that there was no charge, right?

[00:36:07] Speaker 00:
Yes.

[00:36:10] Speaker 00:
I mean, that's the position you take when there's no evidence.

[00:36:12] Speaker 00:
We could have said instead of there is no charge, there's no evidence against charge.

[00:36:15] Speaker 02:
What was your good faith basis for saying there was no charge when there's a right to sue letter?

[00:36:19] Speaker 00:
Because the right to sue letter points to it.

[00:36:21] Speaker 00:
We didn't say there was no charge ever.

[00:36:23] Speaker 00:
We said there was no charge that would exhaust for the claims pre-October 2007.

[00:36:28] Speaker 00:
We never said there was no EEOC charge ever.

[00:36:31] Speaker 00:
That would have been false.

[00:36:32] Speaker 00:
But we said, and we picked the October 2007 because of the EEOC charge that was in the motion to dismiss record.

[00:36:41] Speaker 02:
So we didn't try to... But you didn't identify below what time period... We did.

[00:36:52] Speaker 00:
We said October 2007.

[00:36:53] Speaker 02:
You didn't identify below what time period the court could adjudicate.

[00:37:00] Speaker 02:
What were the meets and bounds of a properly exhausted claim?

[00:37:07] Speaker 00:
We did.

[00:37:07] Speaker 00:
October 2007 to the present.

[00:37:10] Speaker 00:
That's what we did.

[00:37:11] Speaker 00:
We did not move for summary judgment on exhaustion claims for anything after October 2007.

[00:37:18] Speaker 00:
In good faith, we looked at the EEOC charge we had.

[00:37:22] Speaker 00:
We moved to dismiss or for summary judgment on the claims that were not exhausted.

[00:37:27] Speaker 00:
We do that every day.

[00:37:28] Speaker 00:
That's how you litigate Title VII claims.

[00:37:30] Speaker 00:
Again, we don't have access to the EEOC's records.

[00:37:33] Speaker 00:
They are largely non-responsive to our requests for information.

[00:37:37] Speaker 00:
I worked as a trial lawyer.

[00:37:38] Speaker 00:
I tried to get their information many times.

[00:37:40] Speaker 00:
We don't have the information.

[00:37:42] Speaker 00:
So what we do is we say, doesn't look like there's any charge before this.

[00:37:46] Speaker 00:
We assert as a fact that there's no charge if they have evidence that there is a charge.

[00:37:51] Speaker 00:
And again, the plaintiff would know they come forward with it.

[00:37:54] Speaker 02:
But that's the October 2007 boundary is not what you're saying the boundary is now that we're here on appeal, right?

[00:38:04] Speaker 00:
No, that's exactly the boundary that I'm saying.

[00:38:06] Speaker 00:
October 2007.

[00:38:09] Speaker 00:
For all of the other claims, we have other arguments for why they fail.

[00:38:14] Speaker 00:
But we are not arguing that he failed to exhaust anything besides the October 2007 on appeal.

[00:38:20] Speaker 02:
Okay, I guess I misunderstood your position.

[00:38:27] Speaker 02:
Thank you for clarifying.

[00:38:32] Speaker 03:
Thank you.

[00:38:32] Speaker 03:
Okay, I think we're out of time.

[00:38:33] Speaker 03:
We'll give you one minute.

[00:38:39] Speaker 01:
I want to clarify a couple things.

[00:38:40] Speaker 01:
One is the statement of undisputed facts that the district filed below didn't mention at all that there had been no filings at the EEOC or the Human Rights Department.

[00:38:51] Speaker 01:
It wasn't a fact that they said there was no dispute about it.

[00:38:54] Speaker 01:
It's not included in there.

[00:38:55] Speaker 01:
My colleague from the district indicated that the right to sue letter wasn't part of the summary judgment proceedings.

[00:39:01] Speaker 01:
It actually was.

[00:39:01] Speaker 01:
It was an exhibit to Mr. Durant's opposition to the- But so also was the charge that it was based on.

[00:39:11] Speaker 03:
Yes.

[00:39:11] Speaker 03:
And we know the date of that being 2008.

[00:39:14] Speaker 01:
Yes, but I think the indication, one of the questions was that this whole issue of when he filed anything at the EEOC wasn't part of the record in the summary judgment proceeding, but it was.

[00:39:24] Speaker 01:
He did file the right to sue letter as part of his opposition to summary judgment.

[00:39:28] Speaker 01:
It doesn't save everything.

[00:39:34] Speaker 01:
And then the last thing I did want to mention was that at the beginning of the district's argument, my colleague asserted that there was no evidence to suggest the RIF was anything but economic based and the circumstantial evidence

[00:39:49] Speaker 01:
of the timing between his filing of lawsuits and a complaint at the EOC in March of 2010, and his being chosen to be one of only 13 people whose jobs were actually terminated is circumstantial enough, as well as he wasn't one of the people who was then hired back.

[00:40:06] Speaker 03:
As brief, he didn't say one word in response to the argument that he was discharged due to the RIF.

[00:40:14] Speaker 03:
The government claims that he's discharged due to the RIF.

[00:40:17] Speaker 03:
He doesn't respond.

[00:40:19] Speaker 03:
That doesn't get them to pretext.

[00:40:21] Speaker 03:
All the arguments you're making are ones you're making.

[00:40:24] Speaker 03:
But nobody made them below.

[00:40:26] Speaker 01:
I understand.

[00:40:28] Speaker 01:
But the district court, if it had looked at the full record, as disorganized as it was, would have found these points, which are in the record.

[00:40:36] Speaker 01:
And as a result, based on the record, summary judgment was not warranted.

[00:40:41] Speaker 01:
OK.

[00:40:42] Speaker 01:
Reversal.

[00:40:43] Speaker 03:
Thank you.

[00:40:45] Speaker 03:
Mr. Shelley, you've been kind enough to accept the appointment of the court and we're grateful for this.

[00:40:51] Speaker 03:
Thank you.