[00:00:02] Speaker 01: Case number 15-7128 at L. Joshua Fuller at L. Wayne Nelson, Appellant. [00:00:08] Speaker 01: Gerald Burton at L versus District of Columbia. [00:00:11] Speaker 01: Mr. Burton for Appellant Burton. [00:00:13] Speaker 01: Mr. Nelson for Appellant Nelson. [00:00:15] Speaker 01: Ms. [00:00:15] Speaker 01: Rucker for Appellant Rayford at L. Mr. Temple for Appellant Addo. [00:00:20] Speaker 01: And Ms. [00:00:21] Speaker 01: Johnson for the Appellee. [00:00:29] Speaker 05: Good morning, Your Honors. [00:00:30] Speaker 05: My name is Gerald Burton. [00:00:32] Speaker 05: I respectfully request to reserve 30 seconds for rebuttal. [00:00:36] Speaker 05: The trial just got it wrong by stepping over the facts during summary judgment, stating that I was not a proper comparator to other individuals is not true. [00:00:44] Speaker 05: Page 464B in Article 1 states that all sworn employees, through the rank of captain, are covered under the CBA and treated the same. [00:00:53] Speaker 05: The statement not only advanced one sergeant's incorrect, I showed at least two, page 1793, 1794, 1829, and 1831. [00:01:01] Speaker 05: The courts also got it wrong about the overtime. [00:01:05] Speaker 05: Well, page 1765, 1766, it shows the other member working overtime in the same pay period. [00:01:13] Speaker 05: I mentioned the Wain case. [00:01:16] Speaker 05: It refused to even consider evidence of employee wrongdoing. [00:01:19] Speaker 05: Specifically, it ignored an agency's decision [00:01:23] Speaker 05: that Wang had performed below the agency's legitimate expectation. [00:01:27] Speaker 05: I reference the Maestro case. [00:01:28] Speaker 05: The court should not grant summary judgment because the reasonable jury could have concluded the agency's assessment of the case was an inquiry colored by discrimination. [00:01:39] Speaker 05: In fact, the circuit court just recently reiterated that where the two employees who are similarly situated is an ordinary question for a fact for the jury. [00:01:47] Speaker 05: White citing Wheeler at 812 F3. [00:01:51] Speaker 05: on page, I'm sorry. [00:01:53] Speaker 05: If all the compared evidence failed, the case was not doomed. [00:01:57] Speaker 05: This very court, the Court of Appeals in the Wayne case, for all the reasons I've stated above, the summary judgment is due to the first and remanded. [00:02:10] Speaker 08: Thank you, Mr. Burton. [00:02:25] Speaker 04: Good morning. [00:02:25] Speaker 04: I respectfully request 30 seconds for rebuttal. [00:02:28] Speaker 04: I've been a firefighter for 31 years. [00:02:30] Speaker 04: In those 31 years, the dealing with this case has been one of the hardest things I've had to deal with. [00:02:35] Speaker 04: The court and the summary judgment aired when it did not consider all the facts in my case. [00:02:39] Speaker 04: Number one, the fact that an African-American captain that stayed in my brief on page 14, who was sequestered on a test writing committee, was terminated when those tests were African-American, top-heavy. [00:02:49] Speaker 04: And that exam was thrown out. [00:02:50] Speaker 04: And in my case, a Caucasian captain who violated the sequester during the appendix page 450 through 452 was briefly demoted and reinstated when those lists were topped in the Caucasian. [00:03:00] Speaker 04: And that exam was allowed to go forward during appendix 453 through 456. [00:03:05] Speaker 04: None of the facts, the changing of the testing procedures, the deviations, Joint Appendix 1710 through 11, the violation of the sequester, or the pattern of discrimination as evidenced by the Massive Joint Appendix was taken into consideration by the court's decision. [00:03:20] Speaker 04: As stated in the case of Brady v. Officer Sargent, the plaintiff had multiple ways to cast doubt on the ploy's assertion for reasonable acting, such as an African-American captain in violation being terminated in a test thrown out and a Caucasian captain in violation being briefly reprimanded, reinstated in a test moving forward, joint appendix 450 and 1649. [00:03:38] Speaker 04: It is not fair that the facts weren't given any value. [00:03:43] Speaker 04: Number two, there were many errors stated by the court. [00:03:46] Speaker 04: The court even stated in Joint Appendix 1224, it was difficult in trying to organize the plaintiffs, and this difficulty caused errors. [00:03:54] Speaker 04: For example, the court gave a statistical breakdown for the capital exam, but not myself. [00:03:58] Speaker 04: Joint Appendix 1300. [00:04:00] Speaker 04: If a jury were to see the statistical breakdown of myself and the agency's own admission of discrimination, joint appendix 633 to 654 and 1683, a jury would give summary judgment to me. [00:04:11] Speaker 04: Number three, the agency changed with motions and, mid-testing, see my recovery for page three and joint appendix 342. [00:04:18] Speaker 04: The change was done when we used candidate ID numbers. [00:04:22] Speaker 04: The K and the ID numbers would keep everyone anonymous, but the change was to put us and make us write our names on the test. [00:04:30] Speaker 04: This fact was not appreciated by the court. [00:04:32] Speaker 04: This change allowed the AC to identify Caucasian members for promotion during the appendix 1971 through 2015. [00:04:39] Speaker 04: As stated in Brooksburg v. Boston, the court would consider all factors, promotion rates, pass-fail rates, average scores, and delays of promotion. [00:04:47] Speaker 04: Case law is on my side. [00:04:49] Speaker 04: As in the case of the Volk Society v. New York, this proves that wide-scale discrimination still exists. [00:04:54] Speaker 04: And prior to the reason stated, the court's decision must be reversed, and summary judgment must be granted to myself. [00:05:00] Speaker 04: Thank you. [00:05:00] Speaker 08: Thank you, Mr. Nelson. [00:05:09] Speaker 00: Good morning, Your Honors. [00:05:10] Speaker 00: I've reserved two minutes for rebuttal. [00:05:12] Speaker 00: For the record, my name is Donna Rucker, and I represent three of the appellants in this case, Mr. Charles Florence, Mr. Daniel Botts, and Mr. Charles Rayford, who has filed this appeal because the trial court erred in granting summary judgment with respect to the specific claims. [00:05:27] Speaker 00: For purposes of this appeal, we rest upon the record that has been provided with respect to the briefs submitted as well as to the deferred joint appendix and the supplemented deferred appendix. [00:05:37] Speaker 00: We assert, however, that the trial court erred for three basic reasons. [00:05:41] Speaker 00: When you look at the evidence of record and take into consideration the record as a whole, it is clear when viewed in the light most favorable to the appellants. [00:05:50] Speaker 00: The trial court erred in making a determination that there was no existence of evidence to support an inference of discrimination based upon grace. [00:05:59] Speaker 00: With respect to the particular appellant, Florence, the record is clear that, well I call him Appellant Florence, in this particular case had been subjected to a trial board hearing as a result of an alleged claim of discrimination for sexual harassment. [00:06:16] Speaker 00: The record in this case shows that we provided a comparator who is a white male who, subsequent to the charges by Mr. Florence, actually was charged as well. [00:06:25] Speaker 00: However, in this case, if you look at the charges from the department for this particular event, which we allege would be more egregious, you don't have any mention of any violation of the D.C. [00:06:36] Speaker 00: Human Rights Act. [00:06:37] Speaker 00: That is pivotal. [00:06:39] Speaker 00: In this particular case with the appellate Florence, the decision by the board was never officially issued. [00:06:46] Speaker 00: However, he was secreted in terms of being called by Chief Brimely to come to a meeting to discuss the impending presentation of a decision by the board. [00:06:58] Speaker 00: What is, I think, relevant, Your Honors, with respect to Lieutenant Florence is that the court erred in making a determination that this particular white male, who was also a lieutenant, was not a proper comparator. [00:07:09] Speaker 00: Whether or not this person was a proper comparator, first of all, is evidence that should have been determined by a jury, because there is evidence that exists that they were similarly situated. [00:07:20] Speaker 00: You look specifically to the nature of the offense as well as the penalty in this particular place. [00:07:25] Speaker 00: Notwithstanding the fact that you, we would argue, did not have evidence that would have warranted a violation of the DC Human Rights Act. [00:07:33] Speaker 00: We can't go back and relitigate the trial board, but we can point out evidence of pretext as well as evidence existing to infer discrimination. [00:07:41] Speaker 00: that the decision to not have this particular white lieutenant determined to have been in violation of the DC Human Rights Act was very important. [00:07:51] Speaker 00: As a matter of fact, as this record shows, when the lieutenant was told by the assistant chief [00:07:57] Speaker 00: that he would in fact face difficulty in working with others and that it was in his best interest to retire. [00:08:03] Speaker 00: He took that advice and therefore it is our position that this was a coerced resignation and therefore a termination and an adverse action. [00:08:12] Speaker 00: With respect to the appellant, Botts, what you find in this particular record is that the trial court erred in making a determination that Mr. Botts had not, in fact, properly asserted tribal facts for the court in that Mr. Botts had not presented any information pertaining to his National Registry training requirements. [00:08:34] Speaker 00: However, on this particular record, [00:08:37] Speaker 00: It is clear that what the appellant is articulating here is somewhat misrepresented in the order that is presented by the judge because there isn't an allegation that there was no requirement or that there was some exception that Mr. Botts was entitled to. [00:08:52] Speaker 00: What is argued in this particular case is that the National Registry training, once it became required for individuals, if you were hired before a particular point and did not [00:09:03] Speaker 00: entitled the department to terminate you if you were not successful. [00:09:07] Speaker 00: So in this particular case, with respect to appellate bots, what we're saying is if you decided that because of this new implementation that you want to have everyone go to the training academy, you should have had African Americans and you should have had Caucasians present as well. [00:09:22] Speaker 00: So the discrimination in this particular case is not in asking [00:09:26] Speaker 00: appellate bots to attend the training for the National Registry. [00:09:30] Speaker 00: It is being selective and the disparate treatment that went into making a decision as to who would attend. [00:09:36] Speaker 00: We also argue that the court's analysis about whether or not there was, in fact, adverse action is misplaced, given the fact that on this record, the district clearly argued for what would be purported to be legitimate nondiscriminatory reasons for its actions. [00:09:51] Speaker 00: And therefore, the question is whether or not there is evidence of pretext. [00:09:56] Speaker 00: We believe on this record. [00:09:58] Speaker 00: with the presentation of the specific individuals who are identified by appellate bots in terms of who should have been at the training academy, the impact of the fact that he was there, which is loss of holiday pay, loss of overtime opportunity, loss of the ability to take a promotional exam. [00:10:14] Speaker 00: We have both primary facial evidence as well as evidence of pretext. [00:10:19] Speaker 06: Was his evidence that there was disparate treatment that he saw that there were no whites there? [00:10:25] Speaker 00: That is correct, Your Honor. [00:10:26] Speaker 00: Mr. Botts testified to that, and that goes to another point that is at issue in this particular case when the judge concluded that his deposition testimony should not be credited. [00:10:35] Speaker 00: It is clear that deposition testimony is evidence that should have been considered by the court, and in looking at what was provided in this record in a light most favorable to Mr. Botts, he in fact should have been allowed to have his claims go forward. [00:10:47] Speaker 00: With respect to Mr. Rayford, there are two actions that he is talking about in his case. [00:10:52] Speaker 00: Specifically, Mr. Rayford is saying that with respect to his suspension, the record is clear that acts and events such as minor traffic offenses would be normally dealt with at a battalion chief's conference. [00:11:05] Speaker 00: The discrimination, what we are alleging in terms of disparate treatment here, is the fact that, as it pertains to him, his matter went directly to a trial board. [00:11:14] Speaker 00: This is the evidence that exists with respect to the disparity report that's contained in this record, showing that there's an 80% plus disparity, which changes over time, but never diminishes or eliminates the fact that there is disparity in treatment with African Americans who are facing discipline within the DC Fire EMS Department. [00:11:33] Speaker 00: With Mr. Rayford, he points out with respect to his suspension that there were many others. [00:11:38] Speaker 00: He talks in this record about the fact that there is a record that he observed where there were others who had similar minor offenses, but others with more severe offenses, yet their penalty would be a reprimand or counseling. [00:11:52] Speaker 00: with respect to his termination. [00:11:54] Speaker 00: While it is true that he failed the drug treatment program, the judge erred in deciding that he did not have an adverse action because of his resignation. [00:12:02] Speaker 00: Mr. Rayford, in this particular case, his argument is specifically that he didn't have the opportunity as others to not be in the program. [00:12:11] Speaker 00: I see my time has ended. [00:12:14] Speaker 00: I reserve for reflection. [00:12:28] Speaker 03: Good morning. [00:12:28] Speaker 03: May it please the court. [00:12:29] Speaker 03: My name is Donald Tupman. [00:12:30] Speaker 03: I represent the Palate, Adu. [00:12:32] Speaker 03: In this brief two minutes, I want to go straight to the issue of Mr. Adu's argument. [00:12:38] Speaker 03: And number one, I'd like to direct the court's attention to the lower court judge's footnote 17, where the court essentially minimized and negated the most compelling piece of evidence in this case, which is the chart that was submitted by the plaintiffs below [00:12:55] Speaker 03: which indicated an 80 percent disparate treatment in terms of the disciplinary actions taken by, admittedly submitted by the fire department at a city council meeting and presentation that shows that African Americans are institutionally treated relative to discipline six times more egregiously in terms of the punishments issued. [00:13:19] Speaker 03: towards versus whites. [00:13:22] Speaker 03: Pregnant to Mr. Dew as an antidote to Mr. Dew who missed three medical appointments was suspended in each instance. [00:13:30] Speaker 03: Whereas white comparators who had not submitted to these medical examinations. [00:13:37] Speaker 03: Were any of them familiar to you? [00:13:39] Speaker 03: Well, they just they were arguably similarly situated to this extent to the extent of the policy at issue. [00:13:46] Speaker 07: Why was he supposed to be going to the doctor? [00:13:49] Speaker 03: I'm sorry. [00:13:49] Speaker 07: Why was he supposed to be going to the medical form? [00:13:52] Speaker 03: These are the annual reviews. [00:13:54] Speaker 03: He. [00:13:56] Speaker 03: That's correct. [00:13:56] Speaker 03: These are the annual. [00:13:57] Speaker 03: It wasn't just an annual in this case. [00:14:00] Speaker 03: The three were annual. [00:14:03] Speaker 07: The other three were and he wasn't. [00:14:05] Speaker 07: He was a claimant, right? [00:14:06] Speaker 07: I'm sorry, Your Honor? [00:14:07] Speaker 07: He was a claimant at that time, was he not? [00:14:09] Speaker 07: Yes, he was. [00:14:10] Speaker 07: And they were just annuals, right? [00:14:12] Speaker 07: They were annual fitness, right? [00:14:14] Speaker 03: No, his were also annual fitnesses. [00:14:16] Speaker 03: I thought his was for his claim. [00:14:19] Speaker 03: No, they were fitness claims, fitness for duty claims. [00:14:22] Speaker 03: They were part of the 103, we refer to that 103 in the deferred joint appendix, where he was also required to go for annual reviews, similar to those other captains. [00:14:35] Speaker 03: Your concept was similar to pretty broad, I think, yeah. [00:14:39] Speaker 03: The court, with all due respect, the policy, in understanding the framework of the law, but the policy says that all, and we point to the joint deferred appendix, all these employees are required to have these annual fitness reviews. [00:14:54] Speaker 03: So to the extent that they are all required, they are all [00:14:58] Speaker 03: This transcends the ranks of these employees. [00:15:03] Speaker 03: Additionally, the issue here relative to the institutional discrimination here is the court minimized the evidentiary significance of that in her analysis. [00:15:16] Speaker 03: To the extent that you have the statistical chart, which is part of a government document, [00:15:21] Speaker 03: We believe that the basis would have existed a trial for it to be self-authenticated with the proper certification. [00:15:26] Speaker 03: The court suggests that Mr. Lee, who was not part of the evidentiary submission to the city council, didn't recognize the document as of no evidentiary moment because he was not the person, it was the chief himself who presented this particular evidence to the city council. [00:15:45] Speaker 03: Statistics, the point being here in the limited time that I have is that that statistical chart, if it were given the proper evidentiary significance, a law would induce anecdotal comparisons, which we point out on pages four and five of our brief. [00:16:02] Speaker 03: along with the other evidentiary issues in terms of discrimination against Mr. Duke would have resulted, we think, in a triable issue where a jury, not a judge, should have made this particular decision. [00:16:15] Speaker 03: Thank you. [00:16:17] Speaker 08: Thank you, counsel. [00:16:27] Speaker 02: Good morning. [00:16:28] Speaker 02: May it please the court, Holly Johnson for the District of Columbia. [00:16:32] Speaker 02: After four years of discovery and thousands of documents produced, a bunch of depositions, none of the six plaintiffs have been able to muster sufficient evidence to raise a question of fact with regard to discrimination in their particular case. [00:16:47] Speaker 02: I'm going to start, because we have six different claims, I'm going to start with the disciplinary cases and then move on to the others, unless this court wants me to start in a different place. [00:16:55] Speaker 02: Let's start with Mr. Adu, since that's where we left off. [00:16:59] Speaker 02: As this court has mentioned, of course there was different conduct for the comparator. [00:17:04] Speaker 02: Mr. Adu was injured. [00:17:05] Speaker 02: He was on administrative leave, which meant he was getting paid to sit at home and heal. [00:17:10] Speaker 02: And he had scheduled clinic appointments, which means time was set aside for him. [00:17:13] Speaker 07: He missed those appointments, so the conduct was different. [00:17:18] Speaker 07: So I was not missing something. [00:17:19] Speaker 07: It is the case that he was a different kind of case than the annual. [00:17:21] Speaker 02: Absolutely, as opposed to a failure to schedule, but also important, his Caucasian comparators were penalized more harshly than he was. [00:17:30] Speaker 02: He was penalized for 12 hours for missing one clinic appointment, and then when he missed two more within the next six weeks, he was given another 24-hour suspension. [00:17:38] Speaker 02: The comparators were given 300-hour suspensions. [00:17:41] Speaker 02: So even if they were comparable misconduct, they were penalized more severely. [00:17:47] Speaker 02: Finally, with regard to Mr. Addu, it's important to note that the record demonstrates this first missed appointment was his fifth neglect of duty type charge in three years. [00:17:57] Speaker 02: So he is not established, regardless of whether the department had an institutional issue, [00:18:02] Speaker 02: with disparate statistics in regard to discipline. [00:18:06] Speaker 02: He has not established that he personally suffered disparate treatment with regard to discipline. [00:18:12] Speaker 02: Moving on to Mr. Florence. [00:18:14] Speaker 02: Mr. Florence had different decision makers propose his demotion and suspension than those that proposed the demotion of his comparator. [00:18:26] Speaker 06: Why does that matter? [00:18:27] Speaker 02: It's critically important because [00:18:29] Speaker 02: The reason why the trial court was tolerant of the different decision makers with all of the other disciplinary actions is because the decision finally at the end went to the fire chief. [00:18:39] Speaker 02: And if you look at the record, a lot of these suspensions that were proposed were cut down by the fire chief. [00:18:44] Speaker 02: So that was the final decision maker. [00:18:47] Speaker 02: Here, because he did not pursue an appeal with the fire chief, we don't know what the final decision would have meant. [00:18:53] Speaker 02: And it's entirely possible the fire chief, first of all, would have believed him instead of believing [00:18:58] Speaker 02: his accuser, it was a he said she said situation, or the fire chief might have said, oh, well, this other guy was just demoted and not suspended, so I'm just going to demote you and I'm going to reverse the suspension. [00:19:09] Speaker 02: So that's important. [00:19:11] Speaker 06: But it doesn't make it any less disparate. [00:19:15] Speaker 02: It doesn't. [00:19:15] Speaker 06: But the question- Are you arguing a failure to exhaust? [00:19:18] Speaker 02: No, no, not at all. [00:19:20] Speaker 02: Well, indeed, yes, we are doing a failure to exhaust, but that's a separate argument. [00:19:23] Speaker 06: All you have is the comparison, and the comparisons don't look good for you. [00:19:27] Speaker 02: Well, the reason why the different decision makers is considered a key factor in looking at similarly situated employees is that the question is not whether he was treated differently than someone of a race in general. [00:19:39] Speaker 02: This is not a disparate impact case. [00:19:41] Speaker 02: The question is whether there was intentional discrimination. [00:19:44] Speaker 02: And if you want to get into the mind of the decision maker, if you have different decision makers, they may see sexual harassment with different severity. [00:19:51] Speaker 02: They may not have even known about the other fact, the other case. [00:19:55] Speaker 02: But even if they did, they might have seen, maybe they thought the other case was not. [00:19:59] Speaker 06: So you're saying the city can have a disciplinary system that results in whimsical decision making [00:20:09] Speaker 06: and can never be called on it, merely because they're different boards. [00:20:12] Speaker 02: Absolutely not. [00:20:13] Speaker 06: The bottom line with Florence and the comparatives is they're quite different. [00:20:21] Speaker 02: Yes. [00:20:21] Speaker 02: Well, I will say, first of all, there are other reasons why Florence doesn't have a claim. [00:20:26] Speaker 02: But with regard to the similarly situated bashers, [00:20:32] Speaker 02: Of course, there's an office of employee appeals process to determine that the discipline was fair, that it was appropriate. [00:20:39] Speaker 02: But the question here is intentional racial discrimination. [00:20:43] Speaker 02: And when it comes to that, the good case, the Seventh Circuit, has a really nice description of why all of these circumstances need to line up, and that is to eliminate other possible explanatory variables. [00:20:54] Speaker 02: For example, decision makers, different decision makers, which helps isolate the critical independent variable, which is discriminatory animus. [00:21:03] Speaker 02: But I will also note, of course, there's also a failure to exhaust issue here, because Mr. Florence did not suffer an adverse action. [00:21:10] Speaker 02: He retired before the trial board's decision even was formally issued. [00:21:14] Speaker 02: His chief called him in, said, trial board's about to issue this decision. [00:21:18] Speaker 02: You have some choices to make. [00:21:20] Speaker 02: And he chose to voluntarily retire. [00:21:22] Speaker 02: He's shown no case where someone voluntarily is retiring. [00:21:26] Speaker 02: in lieu of a proposed demotion where he didn't even appeal to the chief, somehow has an adverse action. [00:21:33] Speaker 02: Again, he may well have won if he'd gone to the chief. [00:21:36] Speaker 06: Well, if the chief is encouraging to him to retire, why would he think he was going to win? [00:21:40] Speaker 02: I apologize. [00:21:41] Speaker 02: There's the fire chief, that's the big chief, and then there's the assistant chief, and you refer to them as Chief Lee, but it was an assistant chief. [00:21:46] Speaker 02: It was a lower-level official that was speaking to him. [00:21:48] Speaker 02: We're not talking about an appeal to the final chief. [00:21:51] Speaker 02: Those are completely different people. [00:21:53] Speaker 02: And in fact, the chief gave him an option and didn't pressure him to retire. [00:22:00] Speaker 02: Yes, Assistant Chief Lee is the one that met with him. [00:22:03] Speaker 02: The ultimate fire chief head of the agency is the one that makes the fines. [00:22:06] Speaker 07: I let you say something other than the chief if you're not talking about that. [00:22:08] Speaker 02: I apologize. [00:22:09] Speaker 02: You're correct. [00:22:10] Speaker 02: That is a shorthand that definitely confuses the matters here. [00:22:14] Speaker 02: So Mr. Florence didn't suffer an adverse action. [00:22:17] Speaker 02: Even if he did, he has not shown that it was due to any sort of discrimination, intentional discrimination particular to him. [00:22:25] Speaker 02: As to Mr. Burton, [00:22:28] Speaker 02: He has not shown that there is any comparator who engaged in the same sort of misconduct he engaged in. [00:22:35] Speaker 02: And in fact, the trial board directly addressed this comparator, because he raised the comparator before the trial board. [00:22:41] Speaker 02: And they said that the comparator, K.A., all he did was respond undispatched. [00:22:46] Speaker 02: He saw a fire, he responded, and then he informed [00:22:49] Speaker 02: the dispatch that he was doing so. [00:22:51] Speaker 02: In comparison, Mr. Burton forced the reorganization of a fire ground that had already been planned out by dispatching himself after he was directly ordered not to dispatch. [00:23:02] Speaker 02: And then after that, he did not follow standard operating procedures and, according to the trial board, created a dangerous situation. [00:23:10] Speaker 02: None of these factors are there for his comparator. [00:23:14] Speaker 02: And then, indeed, the trial board noted also that Mr. Burton afterward refused to take responsibility, which meant he didn't learn from the problem. [00:23:25] Speaker 02: And that's very different from his comparator, who apologized and said he would do things differently the next time. [00:23:31] Speaker 02: I do want to briefly address this question of whether Mr. Burton [00:23:34] Speaker 02: was whether another comparator was allowed to do overtime work while he was suspended. [00:23:41] Speaker 02: If the court looks at JA 1768 and 1769, those are the two pages that indicate the two weeks when comparator JF was suspended. [00:23:52] Speaker 02: And on those two pages, there is not a dot of overtime served. [00:23:57] Speaker 02: He served overtime before his suspension. [00:24:00] Speaker 02: He served overtime after his suspension, but not during. [00:24:03] Speaker 02: And even if you look at the very end of the suspension, it looks like the very last day of that suspension, he split his shift, which meant he was suspended for half of it, and he worked the second half of it. [00:24:14] Speaker 02: So that pretty much just answers that question. [00:24:17] Speaker 02: One more disciplinary and I'll move on. [00:24:21] Speaker 02: Mr. Rayford had two different disciplinary actions. [00:24:24] Speaker 02: The first was suspension for getting into an accident while he was not carrying his driver's license after he had myths led his supervisor into believing that he was carrying his driver's license. [00:24:36] Speaker 02: The record indicates that if he told his supervisor, I don't know where my driver's license is, his supervisor would have just put someone else in the driver's seat. [00:24:44] Speaker 02: None of the comparators that he offers [00:24:47] Speaker 02: have any of these factors relevant, or none of them are in the record at all. [00:24:52] Speaker 02: And indeed, he, as the district court noted, cherry-picked. [00:24:56] Speaker 02: So the Caucasians who'd been in accidents and were only reprimanded, I believe there were six of those. [00:25:00] Speaker 02: Well, there were 11 African-American [00:25:03] Speaker 02: Firefighters who'd been in accidents that were also reprimanded, so there's simply no evidence of discriminatory animus here I will also note that the trial court there gave him an enhanced penalty because of his disciplinary record We don't have the disciplinary record of the comparators now let's move on to his more pertinent claim his claim regarding his termination and [00:25:23] Speaker 02: Now, he was terminated for two different types of misconduct. [00:25:26] Speaker 02: Number one, which was the automatic termination, for testing positive for marijuana while he was in the substance abuse program. [00:25:33] Speaker 02: And there is no evidence that any other comparator tested positive for an illegal drug while in the substance abuse program. [00:25:40] Speaker 02: We know that one other comparator had a previous violation of the policy, but we don't know when that was. [00:25:46] Speaker 02: We don't know if he was in the substance abuse program. [00:25:48] Speaker 02: More importantly, Mr. Rayford was also terminated for tampering with his urine sample, for attempting to falsify his drug test results. [00:25:58] Speaker 02: And he doesn't even mention that in his briefs. [00:26:01] Speaker 02: So again, there's no evidence of disciplinary action, disparate disciplinary action. [00:26:07] Speaker 02: I'm going to take a breath. [00:26:10] Speaker 02: and move on to the issues that have been raised by Mr. Nelson and Mr. Botts. [00:26:17] Speaker 02: Mr. Nelson had concerns about the promotional exam, and he primarily focuses on this violation of a sequester. [00:26:24] Speaker 02: The important fact in the evidence is that the individual who violated the sequester was not actually a test writer. [00:26:33] Speaker 02: He was a member of the subject matter expert panel. [00:26:36] Speaker 02: And according to the policy, that panel was to, after all the test questions were written, then they were given the test questions and they weighted them in a way that created a fair ranking, weighting of points for the scores. [00:26:51] Speaker 02: So there's an affidavit in the record, which is cited in my brief, which indicates [00:26:55] Speaker 02: that at the time that he notified the department he violated the sequester and was removed from the team, he had never had access to the exam. [00:27:02] Speaker 02: It had not been written yet. [00:27:04] Speaker 02: So that violation of the sequester could not have had any impact on the exam. [00:27:08] Speaker 02: Now, there was somebody in 2000, an African American member of the test writing team, who not only violated the sequester, he created a cheat sheet. [00:27:17] Speaker 02: and handed it out to the African-American members of his team because he wanted them to do better on the test. [00:27:23] Speaker 02: And indeed, he was terminated and the test was canceled at that time. [00:27:26] Speaker 02: That has nothing to do with what happened here. [00:27:29] Speaker 02: It has nothing to do with claims of intentional race discrimination. [00:27:33] Speaker 02: And finally, with regard to Mr. Botts and the EMT training, regardless of what Mr. Botts saw while he was at the training center, and he was not there the entire time the training center was open, [00:27:46] Speaker 02: By December 2010, nearly every employee in the department was certified. [00:27:52] Speaker 02: Half of the department is Caucasian, so either they obtained their certification elsewhere, and there's nothing discriminatory about that, or they were already certified, or they were at the training center at various times. [00:28:05] Speaker 02: There certainly was no [00:28:07] Speaker 02: discriminatory application of... You're saying nearly everyone. [00:28:11] Speaker 06: What about the whites who were not, and his claim is he was made to go, and they were not? [00:28:18] Speaker 02: Well, his claim is that they were, that... I don't know whether there were a few people left over who hadn't been certified by December 2nd. [00:28:27] Speaker 06: Well, but how can you gloss over that? [00:28:28] Speaker 06: That's his claim. [00:28:28] Speaker 06: We're talking about a dismissal, summary judgment that contested facts. [00:28:33] Speaker 02: if if i think he has a reason off no no because he has to do he doesn't have the department records what else should you know he does have the department records there were four years of discovery all of this information was available to him yet every opportunity and certainly hasn't shown that the handful of people that weren't certified were all caucasian what we know is that there were a few people who were still left off at the time that the records the record at least doesn't demonstrate that but almost everyone was certified [00:29:02] Speaker 02: All of his evidence that Caucasians were not required to satisfy the standard, all of it is hearsay. [00:29:09] Speaker 02: And in his reply brief he says... What do you mean hearsay? [00:29:12] Speaker 06: You mean his observations are hearsay? [00:29:15] Speaker 06: No, it is his personal testimony at deposition that someone told him... There is some of that, but there is also his testimony that he was at training sessions [00:29:26] Speaker 06: and made the claim that there were no whites there. [00:29:30] Speaker 02: Yes, that is the only evidence he has that whites were not required. [00:29:33] Speaker 02: It's evidence. [00:29:34] Speaker 02: They were certified. [00:29:35] Speaker 02: The Caucasian members were certified, too. [00:29:38] Speaker 06: Did the city show that in response? [00:29:39] Speaker 02: Yes. [00:29:40] Speaker 02: The city has produced its records. [00:29:42] Speaker 02: It's produced all of these records. [00:29:43] Speaker 02: Everyone has been certified. [00:29:45] Speaker 02: There might be a handful that weren't, but it's certainly, there's no evidence that that has some sort of racial breakdown. [00:29:52] Speaker 02: Yes, everyone was certified. [00:29:54] Speaker 02: Everyone was required to do this. [00:29:55] Speaker 06: Don't keep saying everyone because you just got finished saying it wasn't everyone. [00:30:00] Speaker 02: Certainly, but a jury would have to speculate on this evidence to find that the fact that a handful of unspecified as far as to race... As far as we know, they were all African-Americans. [00:30:10] Speaker 02: As far as we know, we just don't know, and the plaintiffs have the burden of proof here. [00:30:16] Speaker 02: They have the burden of proof here, and there's no evidence of discriminatory animus. [00:30:20] Speaker 02: I see my time is almost up. [00:30:22] Speaker 02: I do want to mention with regard to both the promotional exam, the EMT training, and the hostile work environment claims. [00:30:30] Speaker 02: But the plaintiffs have made no effort to argue or satisfy the Monell requirement to show that the district had a policy or custom. [00:30:40] Speaker 02: Of course, the concerning statistics regarding racial disparity and discipline satisfy, at least for purpose of summary judgment, Monell with regard to the discipline cases. [00:30:50] Speaker 02: But with regard to the promotional exam or the EMT training, there's no evidence of a custom or practice. [00:30:57] Speaker 02: And the employees are not challenging the policy itself. [00:31:00] Speaker 02: So for these reasons after all of this this how do you how do you account for the report? [00:31:05] Speaker 06: How does that how should that fit? [00:31:08] Speaker 02: I'm sorry for my voice in the analysis This is a city's report bad bad things were going on Yes, and and the plaintiffs are mistaken when they say that the district court discounted that report and indeed the district has not argued that that report is inadmissible or irrelevant and [00:31:24] Speaker 02: Those concerning numbers got the employees past their primafacial hurdle. [00:31:30] Speaker 02: It did in fact raise an inference of discrimination, but you can't have an individual discrimination claim without No, I understand that I'm just asking you what what your thoughts are on the report because it's a damning report all I can work off of is the record and indeed the numbers are concerning and [00:31:51] Speaker 02: I'm working with the summary judgment record that I have. [00:31:54] Speaker 02: Had the plaintiffs pursued a class action claim or a policy or practice claim, there would have been more discovery done. [00:31:58] Speaker 02: There would have been experts. [00:32:00] Speaker 02: And all we have are the raw numbers at this point. [00:32:02] Speaker 02: For policy and practice cases, which look to resolve institutional or systemic problems with discrimination, then you bring in experts, and then we would bring in our own experts, and we would talk about what those numbers actually mean. [00:32:15] Speaker 02: There is one thing I would like to say about those numbers. [00:32:18] Speaker 02: because of course they're worrisome. [00:32:20] Speaker 02: But I would like to note that contrary to what the plaintiffs claim in their reply brief, there is no evidence of disproportionate discipline for same or similar offenses. [00:32:30] Speaker 02: I believe that would be more troubling. [00:32:32] Speaker 02: There's evidence that there were more disciplinary actions taken against African Americans than Caucasians, and indeed that is concerning. [00:32:41] Speaker 02: But there's no evidence that that was done for the same or similar offenses. [00:32:45] Speaker 08: Now, can I ask you, because I'm very curious about this, too. [00:32:49] Speaker 08: It's a strange report, and it really is disturbing. [00:32:55] Speaker 08: But how do you know, how have you gotten at this idea of whether it's disparate for the same or similar offenses? [00:33:05] Speaker 08: In other words, are you saying there's no evidence because the plaintiffs here have not provided it? [00:33:11] Speaker 02: That is exactly what I'm saying. [00:33:12] Speaker 02: I have not done independent research into this. [00:33:14] Speaker 02: You don't know. [00:33:15] Speaker 08: There could be evidence of that. [00:33:17] Speaker 08: It's just that we don't know. [00:33:18] Speaker 08: It's not in the record. [00:33:19] Speaker 02: Exactly. [00:33:19] Speaker 02: Everything I'm dealing with here is with what's in the record. [00:33:22] Speaker 02: And because this case ended up being brought as individual discrimination cases, that really wasn't explored because the district was never going to contend in light of those reports that the plaintiffs hadn't satisfied their prima facie burden. [00:33:35] Speaker 02: So then it became an individualized inquiry. [00:33:38] Speaker 02: And it doesn't look like a lot of analysis was done in that area. [00:33:42] Speaker 02: Thank you. [00:33:49] Speaker 08: Okay. [00:33:53] Speaker 08: Let's see. [00:33:54] Speaker 08: Mr. Bergen, you had reserved 30 seconds and also Mr. Nelson. [00:34:00] Speaker 05: Yeah, Council got it wrong. [00:34:02] Speaker 05: Fire grounds are restructured all the time. [00:34:04] Speaker 05: I've been a member for 20 some years, and they're restructured. [00:34:07] Speaker 05: I'm faced with a citizen pointing to where the house is on fire. [00:34:10] Speaker 05: If had I not acted, I could see that I would be facing my termination. [00:34:15] Speaker 05: I was forced to act. [00:34:16] Speaker 05: So as Council said, it wasn't [00:34:20] Speaker 05: Again, we'll move on. [00:34:22] Speaker 05: I didn't take responsibility because there was a process in place where I CBAed. [00:34:26] Speaker 05: The city sent me to, the first thing was the deputy's conference. [00:34:30] Speaker 05: The deputy's up here. [00:34:31] Speaker 05: He said, I'm not putting a man on the charge for putting out a fire. [00:34:34] Speaker 05: He sent me below. [00:34:35] Speaker 05: I went to the battalion conference. [00:34:36] Speaker 05: They sent me to the same charge and official. [00:34:39] Speaker 05: um, you know, who ran the fire ground, which is illegal. [00:34:42] Speaker 05: Then from there, then they sent to a trial board patient termination. [00:34:46] Speaker 05: It's a violation of the city's own C. D. A. Did they agree to, um, as far as the overtime counselor got it wrong again, the overtime. [00:34:54] Speaker 05: And again, let me be clear. [00:34:55] Speaker 05: It's on page 17. [00:34:57] Speaker 05: We worked two weeks in that two week period for the same pay period. [00:35:03] Speaker 05: He worked overtime while suspended. [00:35:05] Speaker 05: So the pages that the council is talking about 1768, it's wrong. [00:35:10] Speaker 05: 1765 and 1766 are the two week pay period. [00:35:14] Speaker 05: He worked while he was suspended. [00:35:17] Speaker 05: Um, as far as the, um, refuse, refuse to take responsibility again, why am I going to take responsibility? [00:35:23] Speaker 05: There's a process of CBA is covered by it. [00:35:25] Speaker 05: I was forced to act with for a citizen or for a visitor to city. [00:35:30] Speaker 05: I'm looking at a house that's on fire. [00:35:31] Speaker 05: What do they want me to do? [00:35:32] Speaker 08: Okay, we understand your argument. [00:35:36] Speaker 05: Yes, ma'am. [00:35:36] Speaker 08: Thank you. [00:35:44] Speaker 04: Council got it wrong about the subject matter experts. [00:35:47] Speaker 04: The African American captain that was terminated and the white captain, they were both on the subject matter writing committee, which means you have an independent company that writes an exam, but you have experts from the agency that have to give them materials about that specific agency. [00:36:02] Speaker 04: Both of these captains were on that committee. [00:36:04] Speaker 04: My argument is this. [00:36:06] Speaker 04: If any individual that's involved in the process [00:36:10] Speaker 04: has one bit of information. [00:36:13] Speaker 04: If he gives that information to one person, it violates the whole process. [00:36:18] Speaker 04: So what happened in this case, there was a Caucasian captain who immediately violated the process. [00:36:24] Speaker 04: And the agency allowed him to do that because the timeline that's in the joint appendix shows that the test process was in April. [00:36:33] Speaker 04: It didn't finish till July. [00:36:36] Speaker 04: The subject matter expert, the captain, the white captain, [00:36:39] Speaker 04: He wasn't charged until after August. [00:36:42] Speaker 04: The promotion list comes out on the 15th. [00:36:44] Speaker 04: I understand that I kicked the hornet's nest, and that the AC had to cover that up. [00:36:49] Speaker 04: But the comparatives between the black captain and the white captain, they both were on the same type of committee to give information for the test process. [00:37:00] Speaker 04: And the violation was cleared and admitted by the agency, and the damage was done. [00:37:05] Speaker 04: One test was thrown out. [00:37:07] Speaker 04: One test was allowed to go forward. [00:37:08] Speaker 04: Through that massive joint appendix, there's clear evidence that the agency allowed this to happen to cover its own tracks. [00:37:16] Speaker 04: Because what I did would have created a massive change. [00:37:21] Speaker 04: But what's right is right. [00:37:22] Speaker 04: What's wrong is wrong. [00:37:23] Speaker 04: And I'm just saying the comparators are there, the evidence is there, and the mission of the agency is there. [00:37:28] Speaker 04: So I'm just saying that that should be a jury's decision to make. [00:37:32] Speaker 04: The evidence is there. [00:37:34] Speaker 04: The other, the changing of the test, the admitting of doing deposition of members in the fire department, that things were investigated when they were out there. [00:37:44] Speaker 04: All these things are in that joint appendix. [00:37:46] Speaker 04: As you can see, it's three phone book size. [00:37:49] Speaker 04: It's three-fold bookside. [00:37:51] Speaker 04: The Department of Mitting of Discrimination, not only for the disparity in treatment, but the systematic part of it. [00:37:59] Speaker 04: The part that means this. [00:38:00] Speaker 04: The part that means that if I'm sorry. [00:38:05] Speaker 04: I mean, let me slow down. [00:38:06] Speaker 04: I would just say this in closing. [00:38:09] Speaker 04: The sergeants and lieutenants of today become the captain and chiefs and policymakers of tomorrow. [00:38:14] Speaker 04: That's important. [00:38:16] Speaker 04: So to have that advantage. [00:38:19] Speaker 04: to anybody is wrong. [00:38:21] Speaker 04: The process should be fair. [00:38:23] Speaker 04: Thank you. [00:38:24] Speaker 08: Thank you, Mr. Nelson. [00:38:31] Speaker 08: All right. [00:38:32] Speaker 08: You actually, I think, had no time left. [00:38:36] Speaker 08: OK. [00:38:37] Speaker 08: I had none. [00:38:38] Speaker 08: You had none. [00:38:38] Speaker 08: But we will give you a moment, one minute at least, for the bottle. [00:38:43] Speaker 00: Thank you so much. [00:38:44] Speaker 00: I appreciate that. [00:38:45] Speaker 00: I want to address very quickly then the fact that, with respect to Florence, [00:38:49] Speaker 00: I think council is confusing, again, the record with respect to how things work. [00:38:54] Speaker 00: With respect to Lieutenant Florence's trial board, once a trial board decision is concluded, that decision is processed administratively up to the Fire Chief, the Fire Chief, who then decides whether that decision will go forward. [00:39:09] Speaker 00: When Assistant Chief Lee met with Lieutenant Florence, it had already gone up to the Fire Chief, who had obviously approved it, which is why that discussion was occurring. [00:39:19] Speaker 00: So it's incorrect to say that that was not [00:39:21] Speaker 00: a process that Lieutenant Florence used. [00:39:23] Speaker 00: Whether or not he had the right to appeal the ultimate decision [00:39:27] Speaker 00: of the trial board, if he was terminated, would have taken it outside of the fire department to the DC Department of Employee Appeals. [00:39:35] Speaker 00: It would not have even been reviewed by the DC Fire and EMS Department as to an incorrect termination. [00:39:41] Speaker 00: With respect to the allegation that was Rayford, what we are pointing out here is the distinction between the fact that Mr. Rayford was put into the drug treatment program, as our record shows, [00:39:52] Speaker 00: immediately upon testing positive. [00:39:54] Speaker 00: We have evidence in this record of white individuals who were driving under the influence, who were arrested for driving under the influence. [00:40:02] Speaker 00: Those individuals were not immediately inserted into the drug treatment program. [00:40:06] Speaker 00: The significance of that is, especially as to one, the second offense did not result in a termination as it did with Mr. Rayford. [00:40:14] Speaker 00: This is the disparate treatment. [00:40:17] Speaker 00: When you talk about you don't have anybody or any comparators with a similar record, that's because they're not being disciplined. [00:40:24] Speaker 00: We cannot stand before you and point out the specific and repeated violations because they're not being disciplined. [00:40:30] Speaker 00: That has the impact of having us have to stand here and say, Mr. Rayford may come to you with these two events, but the question and the point is, you can't have an individual, a probationer from the evidence in this record, who gets no chances [00:40:44] Speaker 00: when you violate a rule or procedure within the department has a DUI and is not fired. [00:40:51] Speaker 00: That is an injustice. [00:40:53] Speaker 00: That is the discrimination. [00:40:54] Speaker 00: With respect to Mr. Botts, the clear point that we're making here [00:40:59] Speaker 00: is that as this court was saying, asking in terms of the questions to counsel, it is not correct that there's no evidence here that others were treated differently. [00:41:09] Speaker 00: It is absolutely correct that Mr. Botts pointed out in bringing this case, specific individuals, he indicated, who was not down at the program, [00:41:21] Speaker 00: He also pointed out individuals, initials KC, JD, and DF. [00:41:25] Speaker 00: These are individuals. [00:41:26] Speaker 00: Counsel has told you that at some point or another, everyone was certified. [00:41:30] Speaker 00: Whether or not that is true has nothing to do with the discrimination that existed when Mr. Botts and others who are African-American were made to sit down for the national training, and they were not allowed to leave. [00:41:43] Speaker 00: They actually had penalties that existed, such as because they were down there, for example, Mr. Botts for two years, [00:41:49] Speaker 00: felt, OK, you can't fire him. [00:41:51] Speaker 00: That's the rule. [00:41:52] Speaker 00: Well, let's make it very uncomfortable. [00:41:53] Speaker 00: Let's start making him come every day of the week. [00:41:56] Speaker 00: And for anyone who's worked a shift where you work one and you're off three, that has a significant impact on life, on you. [00:42:03] Speaker 00: All I'm saying is, with this particular record, it is not, as counsel has stated, that there is the absence or the lack of evidence in the record to show that there were specific individuals who were treated more favorably. [00:42:14] Speaker 00: That is in this record. [00:42:16] Speaker 00: It does exist. [00:42:17] Speaker 00: And it is evidence of discrimination. [00:42:19] Speaker 00: And a reasonable juror, had this case not been dismissed, a reasonable jury could have concluded and inferred racial discrimination. [00:42:26] Speaker 00: We ask that you reverse this matter and allow it to proceed on the merits. [00:42:30] Speaker 08: Thank you, Ms. [00:42:30] Speaker 08: Rucker. [00:42:36] Speaker 03: Based on what the district says, if the report can be admitted for purposes of... Excuse me, counsel. [00:42:45] Speaker 08: So we will give you also one minute. [00:42:49] Speaker 08: One minute. [00:42:49] Speaker 08: Thank you. [00:42:50] Speaker 03: Thank you. [00:42:51] Speaker 03: Based on what the district has stated, it has conceded that the report, the statistical report, could be admitted for purposes of establishing Monell. [00:42:59] Speaker 03: It's our contention that essentially this is a pretext case, and in particular to Mr. Addu that along with the evidentiary significance and the emphasis that it should be created, and Mr. Addu and other plaintiffs favored by virtue of that report, [00:43:11] Speaker 03: And I would just footnote, the problem with the report, and it's indicated in this record, is that when the African-Americans experience discipline disproportionately, the exponential implications and development of that discipline penalize them, because the next discipline becomes more egregious, and more egregious, and more egregious. [00:43:29] Speaker 03: That could have been established at trial. [00:43:31] Speaker 03: The other point, though, which we should do, and I'll close at this point, is this notion that these mismedical appointments, these mismedical appointments and the discipline that is imposed [00:43:40] Speaker 03: The page five, we address that point. [00:43:43] Speaker 03: White captives missed medical appointments and this is necessary due by comparison, missed medical appointments and he was suspended. [00:43:52] Speaker 07: They were not comparably situated, and the other people got disciplined worse than him. [00:43:57] Speaker 07: What are you trying to prove? [00:43:58] Speaker 03: Well, the latter point, Your Honor, with all due respect, they were not disciplined worse than him. [00:44:04] Speaker 03: They were disciplined disproportionately less than him. [00:44:09] Speaker 03: And we point that out on page five of our brief when we talk about those numbers. [00:44:13] Speaker 03: And so I think the record clarifies that. [00:44:15] Speaker 03: That's not inaccurate. [00:44:16] Speaker 07: The record shows that they were differently situated than him. [00:44:20] Speaker 07: And what is your point on that? [00:44:24] Speaker 07: They were disciplined worse than him? [00:44:26] Speaker 03: They were disciplined worse than him because he was disciplined, for example, Your Honor, 84 hours in one suspension. [00:44:32] Speaker 03: Some of these individuals didn't have medical appointments for seven years. [00:44:36] Speaker 07: If you were disciplined... How long a suspension did they get? [00:44:42] Speaker 03: The hours would be 300 to 580 hours. [00:44:44] Speaker 07: So several times as great as what he got. [00:44:48] Speaker 03: I'm sorry, Your Honor? [00:44:48] Speaker 07: Several times as great as what he got, right? [00:44:51] Speaker 03: Well, not really. [00:44:54] Speaker 07: Okay. [00:44:55] Speaker 07: Other than mathematically, there's no other way to do that. [00:44:59] Speaker 07: Mathematically, they got more than he did. [00:45:01] Speaker 03: Well, we point out the disparity. [00:45:02] Speaker 03: It depends on how one applies the math, but we distinguish that, Your Honor, on page 13 of our brief. [00:45:10] Speaker 03: Thank you. [00:45:11] Speaker 08: Okay. [00:45:12] Speaker 08: Thank you very much. [00:45:14] Speaker 08: The case will be submitted.