[00:00:01] Speaker 01:
Case number 16-5063, James Crawford, appellant, versus John F. Kelly, secretary, Department of Homeland Security.

[00:00:09] Speaker 01:
Mr. Fisher for the appellant, Mr. Peterson for the appellate.

[00:00:29] Speaker 06:
Good morning, Your Honors.

[00:00:31] Speaker 02:
Good morning.

[00:00:32] Speaker 06:
May it please the court?

[00:00:34] Speaker 06:
If I could go through what I believe are the errors of the district court opinion, which could straighten this case out, I think that the trial court judge does two things in her opinion.

[00:00:50] Speaker 06:
The first thing she does is she downplays the actual writings, the attachments,

[00:00:58] Speaker 06:
that Mr. Crawford had submitted with his formal complaint.

[00:01:03] Speaker 06:
She says the word that the judge says that he had touched on his claims.

[00:01:08] Speaker 06:
And we believe that, no, he did more than touch on the claims.

[00:01:12] Speaker 06:
He actually described them pretty well.

[00:01:16] Speaker 06:
The second error that I believe the court.

[00:01:18] Speaker 02:
Do you agree that the initial attachment to the complaint, at least as it appears in the record before us,

[00:01:26] Speaker 02:
The narrative does not address either the suspension or the performance evaluation.

[00:01:36] Speaker 06:
Judge Rogers, I believe that it does not specifically say those things.

[00:01:40] Speaker 06:
That is true.

[00:01:41] Speaker 06:
However, what it does say, and I'm on page 26 of the joint appendix with respect to the appraisal in the fourth paragraph down that he goes through in March of 2011

[00:01:59] Speaker 06:
And he references that he needed another person to work with him, and that was turned down.

[00:02:09] Speaker 06:
He delves into that, says there were several meetings with Mr. Wheeler, and then

[00:02:17] Speaker 06:
He says that continues on Joint Appendix, Joint 27.

[00:02:24] Speaker 06:
He talks about in the fourth paragraph that under the supervision of Helen Williams, he achieved an annual performance rating of excellence with a maximum score of five.

[00:02:36] Speaker 06:
And before that, he talks about how Mr. Wheeler, who was the supervisor in paragraph three, had accused him of missing appointments.

[00:02:47] Speaker 06:
Um, and, uh, this is directly related to his appraisal.

[00:02:53] Speaker 06:
I mean, he goes through a hole.

[00:02:54] Speaker 02:
Let me ask you when he received the email.

[00:02:57] Speaker 06:
Yes.

[00:02:58] Speaker 02:
And he only saw eight claims and he said, I'll get back to you.

[00:03:06] Speaker 02:
He could have responded and indicated

[00:03:09] Speaker 02:
He had three more claims, but he never did.

[00:03:12] Speaker 02:
Now, I know you were going to say that the agency had its other obligation to send a second letter, but isn't that a problem for your client?

[00:03:20] Speaker 06:
I think, Judge, I think that that is a very fair question.

[00:03:23] Speaker 06:
And I think that, yes, independent.

[00:03:27] Speaker 06:
I know many lawyers would probably get up here and blame the whole thing on the agency.

[00:03:31] Speaker 06:
And even with that, I mean, there is still a point.

[00:03:33] Speaker 06:
Like, what did this guy not do?

[00:03:35] Speaker 06:
And he know he had to do something.

[00:03:38] Speaker 06:
And I think that the way that the, and I'm on joint appendix 61 here, the way 61 and 62, the entire way that the email is presented to him is that we've gone through not only what you've said, but what the counselor said, okay?

[00:04:02] Speaker 06:
We've gone through all that.

[00:04:04] Speaker 06:
and we understand that these are your claims and we have some questions about those claims.

[00:04:11] Speaker 06:
And the questions are, provide more information, and you have to provide more information.

[00:04:18] Speaker 06:
And if you do that, it doesn't say what happens if he does provide more information.

[00:04:25] Speaker 06:
It just says, if you don't do that, you lose.

[00:04:27] Speaker 06:
OK, so Mr. Crawford, he answers the questions.

[00:04:32] Speaker 06:
I don't think there's any dispute of the fact of that.

[00:04:34] Speaker 06:
He cooperates.

[00:04:36] Speaker 06:
And he's never told, by the way, you know, this is it.

[00:04:42] Speaker 06:
There's no, you know, there's nothing more you can do here or anything like that.

[00:04:46] Speaker 06:
So I think the question really boils down to

[00:04:51] Speaker 06:
did this guy, it's not really did this guy know what he should have done, which he didn't.

[00:04:58] Speaker 06:
The standard is, did he cooperate with the process?

[00:05:02] Speaker 06:
And he did, and he did.

[00:05:03] Speaker 06:
He did what was, and I think Judge Urbina says, in one of the cases that was brought here, that he delves into that, I think in the Ortiz Diaz case, he goes into that once

[00:05:17] Speaker 06:
The employee does that.

[00:05:20] Speaker 06:
Once he's timely on that, he's done with his burden.

[00:05:25] Speaker 06:
So I think that he did what he was supposed to do in this plan.

[00:05:31] Speaker 06:
And I think that the court also, the lower court, relied too much on this Hamilton versus Geithner case.

[00:05:41] Speaker 06:
And the judge says that, or I'm sorry, the judge in Hamilton says, and this is the site 666 at page 1350, that Hamilton's formal complaint

[00:05:55] Speaker 06:
makes no mention of his detail.

[00:05:58] Speaker 06:
And that's why in the Hamilton case, and it was more than that, and the judge in Hamilton versus Deitner, they dismissed the part of his claim that he never exhausted some detail that he got.

[00:06:12] Speaker 06:
And the court says that not only on his complaint did he not mention the detail, but that

[00:06:19] Speaker 06:
He specifically delved into other parts of his claim.

[00:06:22] Speaker 06:
And then in Hampton, he said, I didn't get this promotion.

[00:06:25] Speaker 06:
This is terrible.

[00:06:27] Speaker 06:
And now he's trying to bring something that's totally unrelated to this, which is a distinguishing factor in this case.

[00:06:33] Speaker 03:
In fact, Can I ask you something about, I'm sorry, go ahead and finish your thought.

[00:06:37] Speaker 06:
Oh, OK.

[00:06:37] Speaker 06:
I was going to add, in fact, Your Honors, if you look at the suspension, the proposal to suspend, and this is the joint appendix on page 33,

[00:06:48] Speaker 06:
The issuer of this suspension, he says, which is Mr. Wheeler, the supervisor.

[00:06:55] Speaker 06:
says in the second paragraph, he says that, well, just introducing what this was, is he had gotten this letter, this suspension, because he had a misappointment with this Miss Diederman who was supposed to hold a security briefing.

[00:07:13] Speaker 06:
He didn't do it.

[00:07:15] Speaker 06:
He gave some answer or why he wasn't there that wasn't acceptable.

[00:07:19] Speaker 06:
And then on the third page of this, on GA 33,

[00:07:23] Speaker 06:
He says, Mr. Wheeler says, by not appearing for your scheduled briefing, failing to communicate with your management team, and providing inaccurate statements, because you did all that, you compromised the department's mission.

[00:07:37] Speaker 06:
And then in the paragraph right below, he says, and this isn't the first time this happened.

[00:07:42] Speaker 06:
This also happened in March of 2011.

[00:07:45] Speaker 06:
And I had to counsel you at least twice before this.

[00:07:50] Speaker 06:
Okay.

[00:07:51] Speaker 06:
And then if you compare that to what he puts on his formal complaint, back to JA 26, he goes through this, what happened in March 2011.

[00:08:05] Speaker 03:
I guess what I was going to ask you is why you're not pointing to JA 28.

[00:08:10] Speaker 03:
Oh, I'm sorry.

[00:08:12] Speaker 03:
Because that's when Mr. Wheeler talked with me about my midterm appraisal and the false accusation about not being able to contact and follow up with me, which seems like the things you're just referring to.

[00:08:22] Speaker 03:
So that midterm appraisal is not

[00:08:24] Speaker 03:
But first of all, there's an appraisal attached here, too.

[00:08:26] Speaker 03:
That's not the same appraisal.

[00:08:28] Speaker 03:
Is this midterm appraisal, the one that came before the appraisal that's attached in his complaint?

[00:08:32] Speaker 06:
No, no.

[00:08:33] Speaker 06:
He's complaining about his annual appraisal.

[00:08:36] Speaker 03:
He says midterm appraisal.

[00:08:38] Speaker 03:
OK.

[00:08:39] Speaker 03:
So the midterm appraisal that's referenced here on page JA-28 is the same one that's- I'm sorry.

[00:08:44] Speaker 06:
I was looking at six.

[00:08:50] Speaker 03:
Sorry.

[00:08:50] Speaker 03:
I want to hit JA-28, the second paragraph.

[00:08:54] Speaker 03:
Was the midterm one the one right before this final one that's attached on JA-58?

[00:09:01] Speaker 03:
The one that was attached to his complaint.

[00:09:12] Speaker 03:
This is annual appraisal.

[00:09:13] Speaker 06:
Yeah, that's an annual appraisal.

[00:09:15] Speaker 03:
I'm just trying to figure out, because he attaches, he has this stuff here about the midterm appraisal responding to things you were mentioning.

[00:09:23] Speaker 03:
And he says, they're setting me up to fail.

[00:09:25] Speaker 03:
And that's racial discrimination.

[00:09:27] Speaker 03:
They're not giving me the support I need.

[00:09:29] Speaker 03:
And then after that, if the next one that comes is this final one that has him failing, then that would be the connection, would it not?

[00:09:38] Speaker 06:
Yes, it's interesting because I was using it to show the connection to the suspension where in March of 2011 he had missed this meeting or something and that was directly referenced on his proposal to suspend, was that this was one of the two times or a couple times and that's what

[00:10:03] Speaker 03:
But they'd be related, right?

[00:10:04] Speaker 06:
Yeah.

[00:10:05] Speaker 03:
I mean, because it's the same complaints here, and his response is, they're setting me up to fail, and they're not doing the right thing.

[00:10:10] Speaker 03:
It would be the support they're giving white males.

[00:10:13] Speaker 03:
And so when then he then attaches a suspension that talks about those same problems that he just said here were alleged were racially discriminatory, and he attaches appraisal.

[00:10:22] Speaker 06:
Yes.

[00:10:22] Speaker 03:
It seems to finish the story of the setting me up to fail.

[00:10:26] Speaker 03:
Is that?

[00:10:27] Speaker 06:
Yeah.

[00:10:28] Speaker 06:
Yeah, that's correct, Your Honor.

[00:10:30] Speaker 04:
I know the district court decided on timeliness grounds, like, you know, time bar.

[00:10:36] Speaker 04:
Is there any, I mean, is this, if one were to look at this on the merits, has this pleaded a claim of discrimination?

[00:10:44] Speaker 06:
Oh, I don't believe there's ever been anything on the merits in this case.

[00:10:49] Speaker 06:
I'm just asking you.

[00:10:50] Speaker 06:
Oh, OK.

[00:10:51] Speaker 06:
This client, I only started representing him at this stage, so.

[00:10:56] Speaker 04:
Presumably, you think there's a claim here.

[00:10:58] Speaker 04:
Oh, yes.

[00:10:58] Speaker 04:
I mean, you read the complaint.

[00:11:00] Speaker 04:
Oh, sure.

[00:11:01] Speaker 04:
Can you just give us a view of what the discrimination theory is?

[00:11:07] Speaker 06:
Oh, what his claim is?

[00:11:08] Speaker 06:
OK.

[00:11:12] Speaker 06:
Well, he has this complaint.

[00:11:15] Speaker 06:
Also, I'll just note that he retained me after he filed all this.

[00:11:20] Speaker 06:
It doesn't matter.

[00:11:22] Speaker 02:
We assume you familiarized yourself with the record.

[00:11:25] Speaker 06:
Yes, but I've looked through the case and everything like that.

[00:11:27] Speaker 02:
We're not blaming you.

[00:11:28] Speaker 06:
No, I understand, Judge.

[00:11:30] Speaker 06:
I'm just, if my knowledge is maybe a drop limited as to some of the details of his underlying claim, but basically he's got

[00:11:38] Speaker 06:
He's got three claims that he wants to pursue.

[00:11:43] Speaker 06:
And one of them is that his appraisal score was zero, instead of a five.

[00:11:49] Speaker 06:
Now, a zero appraisal score is extremely detrimental to somebody's career.

[00:11:56] Speaker 06:
There's no question that it would have.

[00:12:00] Speaker 06:
I mean, there's always a question in a particular case, and that would be an underlying merit issue of how it affected his career.

[00:12:09] Speaker 06:
But generally, an appraisal score of absolute zero generally will lead to some sort of track of termination.

[00:12:19] Speaker 06:
Then he claims in his other claim that there was an unadvertised position.

[00:12:24] Speaker 06:
This happened to the government far too often, and it went to someone that would have been a promotion, and he didn't have a chance to apply for that, so it would be a failure to promote, and presumably these people were white.

[00:12:42] Speaker 06:
And then he got a suspension and his suspension is with his white by his white supervisor who he says was out to get him The way I would I'm sorry.

[00:12:54] Speaker 03:
Is that promotion that he's challenging there?

[00:12:58] Speaker 03:
The same one or a different one than the one he mentions on JA 26 Second I'm just a little confused

[00:13:17] Speaker 06:
Which paragraph so next second to the bottom my supervisor was Helen Williams submitted me for promotion in November 2011 and then he talked about how Craig rest I held up the packet that is that's the same Yeah, and he he lists on his hand writes on his complaint J a six he hands he hand writes 11 1 2011

[00:13:44] Speaker 06:
So if you go back to 26.

[00:13:54] Speaker 06:
If you go back to 26, what I think he's referring to there is that his supervisor likes him.

[00:14:04] Speaker 06:
This new supervisor likes him.

[00:14:07] Speaker 06:
And what she does generally is she wants to help him out.

[00:14:12] Speaker 06:
She submits a promotion packet, or she wants to, or something like that.

[00:14:17] Speaker 06:
He says that she submitted it.

[00:14:20] Speaker 06:
but that rights back uh... held the packet up now the exact detail uh... the far back in the job with his promotion being held up that i'm not clear on uh... but i would say that based on what he said the uh...

[00:14:45] Speaker 06:
does seem related at least in the same month.

[00:14:49] Speaker 06:
I would think that there's some connection there that would justify a favorable inference at this stage of the case that that was what he had complained about.

[00:15:01] Speaker 04:
I think my question was less about what the adverse actions are he's identified and more about

[00:15:08] Speaker 04:
What's the theory that he was being discriminated against based on race?

[00:15:12] Speaker 06:
Oh, well, what we would do to litigate this case, and this is what courts generally allow at district court level early in the case, is to seek discovery on comparators on the way that Mr. Wheeler treated others.

[00:15:28] Speaker 04:
And the fact that he hasn't alleged his race or the race of other actors is just because he's pro se, we're just

[00:15:34] Speaker 04:
I would absolutely one of the things you would do is file an amended complaint.

[00:15:37] Speaker 06:
Oh, sure.

[00:15:38] Speaker 06:
Yeah.

[00:15:39] Speaker 03:
But you didn't do that when you came in.

[00:15:42] Speaker 06:
Well, I didn't do that because there was a motion to dismiss.

[00:15:45] Speaker 03:
Well, that came in a month later.

[00:15:47] Speaker 06:
Oh, I'm sorry.

[00:15:49] Speaker 03:
The motion to dismiss came in a month later.

[00:15:50] Speaker 03:
Right.

[00:15:51] Speaker 06:
Well, I think he retained me after that.

[00:15:54] Speaker 06:
I could be wrong, but that's what I seem to recall about it, that he had come to my office with this, but anyway.

[00:16:04] Speaker 03:
Did you tell the district court in opposition to this motion, slash, motion is missed, slash motion for summary judgment that... That he was pro se?

[00:16:12] Speaker 03:
No, that you were planning to file a new complaint.

[00:16:14] Speaker 06:
Oh, I didn't.

[00:16:18] Speaker 02:
Why don't we hear from Ashley?

[00:16:21] Speaker 02:
Thank you, Your Honor.

[00:16:38] Speaker 00:
May it please the court?

[00:16:40] Speaker 00:
Benton-Pearson for the government.

[00:16:45] Speaker 00:
Title VII requires that when an agency is alleged to have discriminated against its employees, that the agency itself is allowed an opportunity to either to investigate and perhaps resolve that discriminatory allegation.

[00:17:01] Speaker 00:
Mr. Crawford here

[00:17:03] Speaker 00:
had failed to put forth certain discrete and insular allegations before the agency that would allow the agency to identify those as particular claims.

[00:17:14] Speaker 00:
And he did that in the form, he alleges that he provided those claims to the agency in the form of attachments to his formal EEO complaint.

[00:17:31] Speaker 00:
The attachments themselves

[00:17:34] Speaker 00:
that he was given.

[00:17:41] Speaker 00:
Mr Crawford alleges that those two documents.

[00:17:48] Speaker 00:
Support three different claims that he's trying to introduce now.

[00:17:51] Speaker 00:
The third claim being that there was a promotion that he.

[00:17:56] Speaker 03:
he believes was... Well, he says his complaint, which means, and I get those allegations, the eight allegations were dismissed on timeliness grounds, but that means you don't pursue them.

[00:18:06] Speaker 03:
It doesn't mean they're still not part of his fact story.

[00:18:09] Speaker 03:
So his fact story and his complaint is all those allegations plus the attached suspension papers and appraisal.

[00:18:18] Speaker 03:
You'd agree with that, right?

[00:18:20] Speaker 00:
to the district court level.

[00:18:29] Speaker 00:
And so all of the, of course, the eight claims that were ultimately dismissed at the district court level were before the administrative level.

[00:18:40] Speaker 00:
And the former complaint manager did list those eight issues in the email that's already been alluded to here.

[00:18:47] Speaker 00:
In that email,

[00:18:49] Speaker 00:
And I think what's of particular concern, perhaps the court, is the notice that was provided to the complainant about what would be investigated.

[00:19:00] Speaker 04:
Just going back to what the complainant submitted, what's your understanding of what a reasonable person reading the complaint to the agency would have thought those attachments were?

[00:19:17] Speaker 04:
What role did they play?

[00:19:19] Speaker 04:
if not, the role that Mr. Crawford asserts, which is, I had an ongoing problem.

[00:19:27] Speaker 04:
They were setting me up to fail, and this happened in these various steps, and look, these are the latest.

[00:19:36] Speaker 04:
So what role were those attachments playing that isn't something that extends the conduct into the time period?

[00:19:43] Speaker 00:
That is the question.

[00:19:46] Speaker 00:
And there are other alternative ways to view those documents.

[00:19:51] Speaker 00:
But taking a step back, it's the complaint manager that delved into the three-page long, single-space narrative.

[00:20:00] Speaker 00:
and excavated the eight claims that were presented in that format.

[00:20:07] Speaker 04:
And what's your theory of what that claims manager did that you would defend as reasonable agency action vis-a-vis the attachments?

[00:20:18] Speaker 00:
Yes.

[00:20:19] Speaker 00:
The agency and the complaint managers themselves are taught

[00:20:24] Speaker 00:
to avoid what is called fragmentation.

[00:20:27] Speaker 00:
Now, this is a concept that's in the Management Directive 110, Chapter 5, and that's provided to EEO managers and when they're trying to delve into dense narratives like this one we have before us.

[00:20:41] Speaker 00:
Now, the issue of fragmentation occurs when there's a confusion between a claim and evidence to support that claim.

[00:20:50] Speaker 00:
Hence why the narrative is all important for not only this formal manager, formal complaint manager, but for all the formal complaint managers to try to be careful in ascertaining what is the allegation versus what does the complainant provide as support for the allegation.

[00:21:12] Speaker 00:
So in this case, having gone through the narrative,

[00:21:18] Speaker 00:
And under a reasonable reading of the narrative, having not detected any connection between what the eight claims were and the document in a direct sense, the fragmentation issue that they're trained to identify was probably at the forefront of his mind.

[00:21:37] Speaker 04:
This seems like the inverse.

[00:21:38] Speaker 04:
This seems like precisely a fragmentation problem.

[00:21:41] Speaker 04:
And this is true even in the government's briefing, describing

[00:21:47] Speaker 04:
the narrative and the aspects of the narrative, the things that happened to Mr. Crawford as discrete claims.

[00:21:54] Speaker 04:
They're not discrete claims.

[00:21:56] Speaker 04:
And in fact, the EEOC itself on JA7 says, believing he was subject to a hostile work environment.

[00:22:02] Speaker 04:
You know, it's an umbrella theory, whether it's harassment, which is also one of the characterizations that both he, Mr. Crawford, uses and the company's hostile work environment.

[00:22:13] Speaker 04:
It's a bunch of facts.

[00:22:15] Speaker 04:
under a legal umbrella.

[00:22:18] Speaker 04:
And in fact, it seems like there's hyperfragmentation in what the claims reviewer was doing and saying, well, this is a claim, and that's not relevant to this claim.

[00:22:29] Speaker 04:
I mean, if you're exercising common sense and not being hypertechnical with a pro se employee, wouldn't you look at all of this and say, oh, same supervisor, set up to fail.

[00:22:39] Speaker 04:
A couple months later, looks like failure.

[00:22:44] Speaker 00:
Of course, the efforts at defragmentation is not a science.

[00:22:51] Speaker 00:
And in this case, there can be argument to say that indeed, maybe some claims that were listed here could have been combined into one umbrella claim and provided other, just in terms of the investigative standards here.

[00:23:10] Speaker 00:
That was the effort.

[00:23:13] Speaker 00:
And answering the court's question as to the theory behind what could these two pages or two documents, how could they be analyzed and processed other than this is part of the claim.

[00:23:30] Speaker 00:
I believe that is the reason.

[00:23:32] Speaker 00:
And that is why the claims manager

[00:23:37] Speaker 00:
rightly or wrongly, but more importantly, reasonably thought that the eight claims that they did discover and that he did present to the complainant were the eight claims to go forward with.

[00:23:51] Speaker 00:
Well, just hang on.

[00:23:52] Speaker 03:
I guess if you're a lawyer, if a client walks into your office and says, I've been working in this place for a long time,

[00:24:00] Speaker 03:
under Miss Helen, I was getting fives, which is the highest score of my appraisals.

[00:24:07] Speaker 03:
New guy shows up.

[00:24:10] Speaker 03:
He's white, I'm not, I'm African American.

[00:24:13] Speaker 03:
And I get a midterm appraisal, and it's got this negative stuff, and I keep about me not being available, these types of things, it's not true, it's false, they're setting me up to fail, they're not giving me the support that they're giving to white workers, and here's my final appraisal, zero.

[00:24:30] Speaker 03:
Would you think that final appraisal zero had nothing to do with that story about five to midterm discrimination, lack of support, something we have to fail?

[00:24:40] Speaker 03:
Fail?

[00:24:41] Speaker 03:
Wouldn't you think that fail is the bookend of the story?

[00:24:45] Speaker 00:
So certainly there is a connection there.

[00:24:47] Speaker 00:
We're dealing with the same evaluation year, and we're dealing with the same review of a performance.

[00:24:54] Speaker 00:
The difference is that in the mid-year, there were several distinct complaints about what actually happened at the mid-year.

[00:25:01] Speaker 00:
And you were absolutely correct that the complaints that the complainant identified about the mid-year were that there were false accusations about, or inaccurate accusations about him missing meetings or not being reliable as an employee.

[00:25:14] Speaker 03:
And setting me up to fail, and then he submits the documentation of failing.

[00:25:18] Speaker 03:
Is that clear?

[00:25:19] Speaker 03:
not a separate claim, the performance appraisal, that's clearly part of his whole story, correct?

[00:25:26] Speaker 03:
If... If the client walked in your office, you'd get... He wouldn't have to lay it out for you, he'd have to suddenly have to fail?

[00:25:33] Speaker 03:
Fail.

[00:25:33] Speaker 00:
I understand the theory.

[00:25:37] Speaker 00:
Part of the reason why the narrative becomes crucial is to help the claims manager understand that theory.

[00:25:44] Speaker 02:
OK, so what is the status of the management directive?

[00:25:48] Speaker 02:
You mentioned it earlier.

[00:25:51] Speaker 00:
Yes, ma'am.

[00:25:52] Speaker 00:
The status of it.

[00:25:53] Speaker 00:
Yes.

[00:25:53] Speaker 02:
Because in order to protect the claims manager, as well as the complaining party, particularly as a lot of these people will be pro se, it calls for sending what is described in the brief as a second letter that basically says, here's what we're going to investigate.

[00:26:14] Speaker 02:
Have we covered everything, or is there something we've missed?

[00:26:19] Speaker 02:
That letter was never sent.

[00:26:24] Speaker 02:
Is that correct?

[00:26:26] Speaker 00:
In terms of a second letter, that is correct.

[00:26:29] Speaker 02:
No, I'm talking about the letter.

[00:26:31] Speaker 02:
The shorthand is second letter, but it's what the management directive tells the claims manager and everybody else to do.

[00:26:44] Speaker 02:
to avoid this very problem.

[00:26:46] Speaker 00:
There are a couple complications with this case that may have interfered with that process.

[00:26:52] Speaker 00:
Now, first, I believe that the agency believes that that email that we've been referring to contains the key components of an acceptance letter.

[00:27:01] Speaker 02:
But not all.

[00:27:02] Speaker 00:
Not every component.

[00:27:05] Speaker 00:
I'm sorry.

[00:27:06] Speaker 02:
Not the key.

[00:27:07] Speaker 00:
Yes.

[00:27:08] Speaker 00:
And so let's get to that, right?

[00:27:09] Speaker 00:
So the key being notice, the key being some sort of fair notice of the complainant that this is what we're going to investigate.

[00:27:18] Speaker 00:
And the exclusionary terms of this is all we're going to investigate.

[00:27:24] Speaker 00:
This is the only thing if you need to provide more.

[00:27:28] Speaker 00:
It's not found in an email, and that is true in the face of it.

[00:27:34] Speaker 00:
However,

[00:27:35] Speaker 00:
What the agency presents is that the email itself, in the second paragraph on the email, in bold print, talks about how after talking to everyone that's been involved with this case so far, after reading everything in this case so far, these are the claims we've identified.

[00:27:56] Speaker 00:
And while it's not exhaustive, I mean, in terms of being exhaustive, that was the agency's attempt to make an exhaustive attempt to tell you all the claims, not just the claims we have questions about, which I agree would be misleading.

[00:28:11] Speaker 00:
If the email only said, we have questions about these claims, answer these questions, and we'll move forward.

[00:28:19] Speaker 04:
Following discriminatory incidents, not these claims, following discriminatory incidents, all of which he had narrated,

[00:28:25] Speaker 04:
What's to put him on notice that there's even a question here about timeliness?

[00:28:30] Speaker 04:
You know, they're basically saying, okay, this is everything.

[00:28:32] Speaker 04:
You know, as long as we confirm the timing, you're out on your ear.

[00:28:36] Speaker 04:
If they had said, you know, what's your connection between, you know, the most recent conduct and these things?

[00:28:45] Speaker 04:
I mean, there's nothing like that.

[00:28:47] Speaker 00:
In terms of putting the complaint on notice.

[00:28:51] Speaker 00:
That there are problems with timeliness with his claims.

[00:28:54] Speaker 00:
This email did not serve that purpose at all.

[00:28:56] Speaker 04:
Is this the only document?

[00:28:57] Speaker 04:
There's a reference in your brief to the counseling report.

[00:29:01] Speaker 04:
Is that what this is?

[00:29:02] Speaker 04:
I'm on page nine, line three.

[00:29:05] Speaker 04:
He said this is background information.

[00:29:07] Speaker 04:
He raised three claims at issue.

[00:29:09] Speaker 04:
Background information as the counseling report reflects.

[00:29:12] Speaker 04:
Does this refer to

[00:29:15] Speaker 04:
his attachments as background information, I'm just wondering what, is there something that we're missing?

[00:29:20] Speaker 00:
I don't believe we're missing any documents, your honor, but I do know that this is not considered the counseling report.

[00:29:30] Speaker 04:
Where is that document?

[00:29:31] Speaker 00:
The EEO counselor's report.

[00:29:37] Speaker 04:
This says, even if Robert explicitly raised the three crimes issue and the attachments as he contends, rather than, and this is what I thought your competing characterization was, rather than as background information, as the counseling report reflects.

[00:29:50] Speaker 04:
Where's that from?

[00:29:51] Speaker 04:
There's no citation.

[00:29:53] Speaker 05:
Right.

[00:30:01] Speaker 04:
We just don't know.

[00:30:02] Speaker 00:
I don't believe that it's in the joint appendix at this time, and I believe that what it was referenced to was referencing another reference to the joint, to the council's report, but not actually placed in the joint appendix.

[00:30:15] Speaker 04:
If there is another document, would you provide that?

[00:30:18] Speaker 00:
Yes, of course.

[00:30:19] Speaker 00:
Of course we will.

[00:30:21] Speaker 00:
But the point with that argument was that

[00:30:29] Speaker 00:
The information that was added to the narrative in the formal EEO complaint could reasonably have been thought of as background information, or at the very least, an evidence of the culmination that they're out to give me.

[00:30:47] Speaker 03:
It's not evidence, it's the next step.

[00:30:49] Speaker 03:
It was a distinct proceeding.

[00:30:51] Speaker 03:
Every government employee knows a new appraisal is its own action.

[00:30:56] Speaker 00:
This is true.

[00:30:58] Speaker 00:
However, it depends upon what happens between that midterm evaluation and the actual performance evaluation.

[00:31:03] Speaker 00:
What happens is exactly what he predicted.

[00:31:05] Speaker 00:
There are several things that happened between the midterm and the final.

[00:31:10] Speaker 00:
And it's not clear that Mr. Crawford would contest every negative thing that's being alleged in his final performance evaluation.

[00:31:19] Speaker 00:
He didn't make qualms about the things that were mentioned at his midterm.

[00:31:24] Speaker 00:
So there could be a difference between what happened at his midterm and his final.

[00:31:28] Speaker 03:
I'm sorry.

[00:31:29] Speaker 03:
You mentioned in this email that went out that it referenced that the counselor could talk to everybody involved.

[00:31:39] Speaker 03:
Did that include talking?

[00:31:41] Speaker 03:
I just don't know how these processes usually work.

[00:31:42] Speaker 03:
Does that mean talking to Mr. Crawford?

[00:31:45] Speaker 03:
including, I assume they call the agency people involved.

[00:31:49] Speaker 03:
Did the counselor actually talk to Mr. Crawford?

[00:31:52] Speaker 00:
Is that part of the process?

[00:31:53] Speaker 00:
No, if I implied that that was my mistake.

[00:31:56] Speaker 00:
I don't believe, there's no record of him actually having a discussion with Mr. Crawford.

[00:32:00] Speaker 00:
What I was affirmed to was the communication between he and the EEO counselor.

[00:32:07] Speaker 00:
in terms of just how he read the report at the very least and considered the report and considered the formal EEO complaint and the narrative in coming up with the list of issues that he identified for further investigation.

[00:32:21] Speaker 02:
And just so I'm clear, the EEO counselor's report, that would be presumably regarding Mr. Crawford's

[00:32:34] Speaker 02:
first complaints or interviews with the EEO officer?

[00:32:38] Speaker 00:
Interviews, yes, Your Honor.

[00:32:40] Speaker 00:
In October 2011, Mr. Crawford, four days after his final performance evaluation, approached a EEO counselor and provided informal counseling at that stage.

[00:32:54] Speaker 00:
Those informal counseling remarks, of course, don't make up what a formal EO complaint would be and don't always square with what's actually going to be investigated.

[00:33:05] Speaker 00:
So that was the point being that there are things he talks about there that don't show up at the final stages of this formal complaint.

[00:33:15] Speaker 00:
And so ultimately, the question is,

[00:33:19] Speaker 00:
With regard to the DHS's action, with regard to the two documents that relate to two incidents, it's not three.

[00:33:27] Speaker 00:
And I need to make sure I'm stating things clearly.

[00:33:30] Speaker 00:
The issue dealing with a promotion in 2011, there's no document attached to any complaint that supports that, that would have given the agency notice that this was an issue.

[00:33:43] Speaker 00:
The first time that we are aware of this in a very formal way is at the federal level, when a federal complaint, when in his federal complaint, Joint Appendix 6, I believe, he indicates that there was a promotion in which someone less qualified than him was provided the position and started the position in November of 2011.

[00:34:12] Speaker 00:
Now, what's noteworthy about the complaint as well is that in that final two paragraphs of his complaint before the relief section, he talks about making contact with the EEO office concerning these three, these very same three issues he's bringing up now.

[00:34:33] Speaker 00:
The suspension, the final appraisal, and the promotion.

[00:34:40] Speaker 00:
This is contemporaneous with the formal complaint coming to him for his review through the email in February.

[00:34:47] Speaker 00:
So as late as December of 2011, he was indicating, still communicating with the EEO office, presumably the EEO counselor, although we have no record of that.

[00:34:57] Speaker 00:
We have no proof of that.

[00:34:58] Speaker 00:
But according to his own complaint, these issues were fresh in his mind, things that he knew he wanted to add.

[00:35:07] Speaker 00:
And when presented with a list in an email that says, after sussing out everything that we can from the counsel's report and from your formal complaint, these are the eight issues we have, the complainant stays silent as to an email, a phone call, some indication to the manager that, wait a minute, I have these three things I've been telling you about.

[00:35:30] Speaker 00:
Can you include that as well?

[00:35:34] Speaker 03:
In the.

[00:35:36] Speaker 03:
But if he thought that was already there through the attachments, why would he think he had to say more?

[00:35:45] Speaker 00:
Because the argument that the agency wants to present is that a reasonable complaint when you're faced

[00:35:53] Speaker 00:
when you're faced with the allegation, or at least the argument from the manager that deals with these complaints, that he's read everything.

[00:36:02] Speaker 00:
He's read all your submissions.

[00:36:04] Speaker 00:
And these are the eight things that he can come up with that are going to be the topics of investigation that a reasonable complainant, someone interested in pursuing their rights, would say, well, at the very least, you're not complete in your listing of the issues that need to be investigated.

[00:36:22] Speaker 00:
Here are three more.

[00:36:23] Speaker 03:
It seems like we have a problem here, and that is, as you've admitted, the agency didn't say the types of things it should have said to put him on notice in its email that this was meant to be an exhaustive list and that he should get back to them if he doesn't agree with that list.

[00:36:41] Speaker 03:
So they didn't do their part.

[00:36:43] Speaker 03:
You've agreed with that.

[00:36:45] Speaker 03:
On the face of it, it doesn't qualify as an acceptance letter or whatever that second communication is under the directive.

[00:36:51] Speaker 03:
It doesn't meet those requirements.

[00:36:53] Speaker 03:
On the other hand, as you're now saying, he didn't do what a reasonable person should do.

[00:36:58] Speaker 03:
So my question is, when you're talking about an EEO process, which is supposed to be a dialogue, mediation, for lack of a better word, conciliatory process for the agency to try to handle it itself,

[00:37:10] Speaker 03:
And you have both the agency not giving the notice that we want for a pro se process and an individual not responding the way people think might be reasonable.

[00:37:23] Speaker 03:
Who should be, who should pay the price for that?

[00:37:25] Speaker 03:
When both sides messed up, who should pay the price?

[00:37:29] Speaker 00:
So at this point, at this stage, what we're talking about here is looking at the continuum of reasons.

[00:37:35] Speaker 00:
So the email, does it equate to an acceptance letter?

[00:37:39] Speaker 00:
Probably not, under what the rules are in terms of how.

[00:37:43] Speaker 00:
Not really probably, it just doesn't.

[00:37:45] Speaker 00:
Yes, but at the same time,

[00:37:47] Speaker 00:
The question is, are there components of the email that would put a reasonable complaint on notice?

[00:37:56] Speaker 03:
Were there opportunities for... A notice that this is an exhaustive list unless you tell us otherwise with legal consequences.

[00:38:04] Speaker 00:
On notice, at the very least, this is an exhaustive list.

[00:38:07] Speaker 03:
With legal consequence.

[00:38:08] Speaker 03:
That's the point about notice, is that it's legal consequences to it, right?

[00:38:11] Speaker 00:
Yes.

[00:38:11] Speaker 00:
With the idea that if there are questions or concerns about what has been listed, there's a contact information there of the manager himself to have contact with the complainant.

[00:38:26] Speaker 00:
You add that to the reality that, at that stage, we're not even close to a decision or the final investigation of these complaints yet.

[00:38:36] Speaker 00:
At any time.

[00:38:37] Speaker 00:
I'm sorry.

[00:38:37] Speaker 02:
So just so I'm clear, in response to Judge Millett, as part of your answer that leads to JA 61, we have a response from Mr. Crawford saying he's working on additional information

[00:38:56] Speaker 02:
to add and clarify his complaint and then apparently doesn't do anything.

[00:39:04] Speaker 02:
So to that extent, I mean that's a very short sentence and who knows what it really means, but he understood he had an opportunity.

[00:39:12] Speaker 00:
He understood he had an opportunity.

[00:39:14] Speaker 00:
He understood that those three issues were things that were not discussed with the EEO counselor in October of 2011.

[00:39:23] Speaker 00:
He understood that he wanted to add those claims according to his federal complaint.

[00:39:27] Speaker 00:
He had done that contemporaneously with his email, at least with the formal complaint that he filed.

[00:39:33] Speaker 00:
And the email that happened that was sent in June listed the eight issues that it found to be liable, or at least areas of examination for the investigation.

[00:39:47] Speaker 02:
But back to Judge Smollett's question as to who pays the price.

[00:39:52] Speaker 00:
Yes.

[00:39:52] Speaker 02:
The management directive protects the agency, it seems to me.

[00:39:56] Speaker 02:
It says, if you don't want to get into any problems, send out this second notice.

[00:40:01] Speaker 02:
It gives clear notice to whoever is filing the complaint, particularly where it's a pro se person claiming unlawful discrimination.

[00:40:12] Speaker 02:
So why shouldn't that be dispositive as it were, where the agency has

[00:40:20] Speaker 02:
experience in handling these matters knows that it's often difficult to understand the full nature of a pro se litigant's written document, and they don't have a personal interview to go on.

[00:40:35] Speaker 02:
So we'll just send this letter out.

[00:40:39] Speaker 02:
And that makes it clear not only to the pro se,

[00:40:43] Speaker 02:
It would protect the agency against any claim that didn't properly look at the formal complaint.

[00:40:55] Speaker 00:
The only way that I believe that it's necessary to get to that point, to say that management is to blame, is to discount some of the language in the email, the protective language, that made an attempt to give the complainant notice.

[00:41:12] Speaker 02:
But all I'm getting at is management has already assessed the situation in this case, and come up with a solution.

[00:41:25] Speaker 00:
it's a solution that is that force there are you know when these directives here and relations appear there isn't a form letter there isn't a perfect no form letter attached there there there isn't as far as i can tell you know so that it is manager these from these formal complaint managers when they're trying to

[00:41:46] Speaker 00:
author these letters, they're doing it based on their own practice a lot of times.

[00:41:51] Speaker 02:
Sure, but I thought you had indicated that the management directive is a guide to the claims examiners and others.

[00:42:00] Speaker 00:
It is a guide.

[00:42:02] Speaker 00:
It is a guide.

[00:42:03] Speaker 00:
And it stands for certain principles, and the principle of explicitly indicating the consequences of not responding were in this email, but it was with regard to clarifying those points.

[00:42:18] Speaker 00:
The times.

[00:42:19] Speaker 00:
Yeah, the times.

[00:42:19] Speaker 00:
And not to saying, this is the totality of your arguments.

[00:42:23] Speaker 00:
However, like I said, the complication here is that the response was that, okay, as a complainant, I'm going to get back to you with more information, which may have stalled out the process of providing the next communication.

[00:42:38] Speaker 00:
And when that didn't occur, the investigation went on and it was determined that the eight claims that were identified were untimely.

[00:42:48] Speaker 00:
And the three that are now being submitted, only two have documentation that even can arguably be supportive of it.

[00:42:59] Speaker 00:
There's no documentation with regard to the promotion in 2011.

[00:43:02] Speaker 00:
The suspension itself, which is not in the narrative, is another document that could have been determined to be

[00:43:18] Speaker 00:
part of the fragmentation issue of whether this is evidence of or this is a separate claim being asserted by, which could be cleared up once again by a line or two, a sentence or two in a three-page narrative that this is what I want to do.

[00:43:31] Speaker 00:
I want to have a claim or I want this investigated by the agency.

[00:43:36] Speaker 00:
And it would have been, I mean, given the history of this case, it would have been added to the eight claims that were provided.

[00:43:41] Speaker 03:
Can you say it again, at no point in this process does the EEO official pick up the phone and talk to the parties involved?

[00:43:49] Speaker 03:
They don't talk to you?

[00:43:51] Speaker 03:
Or they don't?

[00:43:51] Speaker 03:
I'm talking about the yuppie-uppies.

[00:43:52] Speaker 00:
No, well, I guess what I'm saying is that it's a question, of course, I thought of in the reading space.

[00:43:58] Speaker 00:
I mean, it seems like a common sense solution.

[00:44:00] Speaker 00:
I think it's one of...

[00:44:02] Speaker 00:
First, there is no record of a communication between Mr. Toledo.

[00:44:05] Speaker 03:
Yeah, I'm just asking how the process works, generally.

[00:44:08] Speaker 00:
Generally, there's no... I'm not aware of any prohibition against contacting directly the complainant.

[00:44:15] Speaker 00:
In fact, in this case, he invited the contact.

[00:44:18] Speaker 00:
He said, call me if there's a question or if there's a problem.

[00:44:21] Speaker 00:
Here's my number.

[00:44:22] Speaker 00:
So I think in this case, it didn't happen, like I said, for the reasons that receiving the kind of response that he did back from the complainant indicating that there was more to come.

[00:44:32] Speaker 00:
Perhaps it would put it into another star category.

[00:44:35] Speaker 00:
I mean, this is all things that were not before the district court in deciding all these matters.

[00:44:40] Speaker 03:
Sure, OK.

[00:44:40] Speaker 00:
No, I didn't know how to process it.

[00:44:42] Speaker 00:
But these are the realities.

[00:44:43] Speaker 00:
And I think the court is correct that every case would be different.

[00:44:47] Speaker 00:
every case manager has some idiosyncratic method of doing this.

[00:44:51] Speaker 02:
Well, that's why we have this management directive.

[00:44:54] Speaker 02:
I'm serious.

[00:44:55] Speaker 02:
Anyway, thank you.

[00:44:56] Speaker 03:
Can I ask one fact question?

[00:44:58] Speaker 03:
Oh, sure.

[00:44:58] Speaker 03:
I'm very sorry, but on the performance appraisal that he attached, he says his final rating was zero.

[00:45:07] Speaker 03:
Yes.

[00:45:08] Speaker 03:
So he gets 1.92 for performance goals.

[00:45:15] Speaker 03:
point six five seven whatever for competencies and they say total zero how is it that you add up one point nine two and point six five and get to zero actually if you add those numbers up he gets to two point a little over two point five which gets him into achieved expectations so is there something about and maybe you don't know

[00:45:36] Speaker 00:
Of course, this is in discussions with the agency.

[00:45:39] Speaker 00:
I can tell the court that that particular performance evaluation has been rescinded and taken out of this performance file because of errors.

[00:45:49] Speaker 00:
I don't know if that was one of the errors that was made.

[00:45:51] Speaker 03:
It should be.

[00:45:51] Speaker 03:
It's pretty much math there.

[00:45:52] Speaker 00:
Perhaps it was.

[00:45:54] Speaker 00:
But the bottom line is I am not familiar and I'm not diverse with how calculations happen.

[00:45:59] Speaker 00:
But ultimately, this performance appraisal has been withdrawn.

[00:46:03] Speaker 00:
I've been told it's not part of his current.

[00:46:05] Speaker 02:
Thank you.

[00:46:06] Speaker 02:
All right.

[00:46:06] Speaker 02:
Counsel, give you a couple of minutes.

[00:46:10] Speaker 06:
Just very briefly, just a couple of things.

[00:46:13] Speaker 06:
One, just the thing with the appraisal.

[00:46:15] Speaker 06:
I mean, I think part of this claim would be whatever damage that caused him until it was taken out of his appraisal.

[00:46:22] Speaker 06:
Right.

[00:46:23] Speaker 06:
So that's one.

[00:46:25] Speaker 06:
And just very, very briefly.

[00:46:26] Speaker 02:
For you to say this court's

[00:46:28] Speaker 02:
Not needless to say, but this Court of the President is not very favorable to just claims based on performance evaluations.

[00:46:35] Speaker 06:
I understand.

[00:46:36] Speaker 02:
All right.

[00:46:36] Speaker 02:
So what are your other points?

[00:46:38] Speaker 06:
Just the last point.

[00:46:39] Speaker 06:
I think the Court has really understood this case that notice in law is a big deal throughout the thing.

[00:46:47] Speaker 06:
I think this case just has a lot of precedential value going forward.

[00:46:51] Speaker 02:
Harmless error?

[00:46:53] Speaker 06:
I don't think it's right.

[00:46:54] Speaker 02:
Since he responded and said, I'm working on this, and I'll get back to you.

[00:46:59] Speaker 06:
Well, that I'm not quite sure.

[00:47:01] Speaker 02:
I'm just asking.

[00:47:02] Speaker 06:
Yeah, that I'm not quite sure what happened after that.

[00:47:05] Speaker 06:
But I think that at the end of the day, I just think it's a notice issue.

[00:47:11] Speaker 02:
But there is harmless error associated with notice requirements.

[00:47:17] Speaker 06:
In that what?

[00:47:18] Speaker 02:
Well, he got an email, and if you have any questions, call me.

[00:47:22] Speaker 02:
And he responds saying, I'm working on my complaint.

[00:47:25] Speaker 06:
But he still doesn't have what?

[00:47:28] Speaker 02:
The magic words.

[00:47:30] Speaker 06:
Yeah, what's the consequence?

[00:47:31] Speaker 06:
Someone gets a summons.

[00:47:32] Speaker 06:
Notice, I'm getting sued.

[00:47:35] Speaker 06:
And it says, put on the summons.

[00:47:36] Speaker 06:
If you don't respond in 20 days, you're in trouble.

[00:47:39] Speaker 06:
So that's what this case ultimately is.

[00:47:42] Speaker 02:
Thank you.

[00:47:43] Speaker 02:
We will take the case under advisement.