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case number 17-7062.

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Kathleen Ranowski, appellant versus National Railroad Passenger Corporation, agent of Amtrak and L. Ms.

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Brown for the appellant, Mr. Sharbaugh for the appellees.

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May it please the court, we are here today asking that Ms.

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Ranowski's case be remanded back for trial.

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We're asking the court reverse the district court's grant of summary judgment against Kathy Ranowski

[00:00:32] Speaker 05:
We believe the court, um, ignored Mr Rynowski's evidence made impermissible credit.

[00:00:37] Speaker 02:
What do you say he ignored?

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You use that same person in your brief.

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What do you say he ignored?

[00:00:47] Speaker 05:
Well, um, he ignored one her excellent performance evaluations.

[00:00:52] Speaker 02:
Um, and heard any mention that

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Well, what the court said in its opinion, if I may back up, is they relied on the fact that the court believed that Tom Howard consistently said that he was removing Ms.

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Rynowski because of her performance.

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But in fact... But that doesn't say that he ignored evidence.

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I mean, it is true.

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Well, he doesn't discuss the fact that just six weeks prior to her termination, he signed off on, not signed, I think we had an error in our brief, but signed off on Ms.

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Rynowski's excellent performance evaluation, and he didn't make any mention of any loss of credibility with respect to her.

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In fact, he signed her 2013 performance evaluation.

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And notably, there was a meeting of Mr. Howard, Ms.

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Risch, and Mr. Warren that they attended to discuss Ms.

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Rynowski's performance evaluation and her performance shortly before her termination.

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And Terry Gilmore could not recall any criticisms that there were of Kathy Rynowski.

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The court did not discuss those items with respect to Ms.

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Rynowski's termination or his position.

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In addition, the court ignored

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uh... column carriers testimony regarding the sernozky's performance regarding the fact that she'd been recommended for a band increase he knew that she was significantly better qualified individuals who replaced her in track refused to consider older applicants for the position

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In fact, if the court may recall, Frank Mazarek is the 35-year-old male who was selected for that position.

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He came out of the NASA IG office.

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His supervisor, Frank LaRocca, also applied for that position, and he wasn't even considered for an interview.

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That is combined with Terry Gilmore repeatedly asking Ms.

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Rynowski when she would retire.

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There was an OIG internal assessment saying that OIG near retirement may not welcome changes.

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That wasn't heavily considered by the court.

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You'll find that in the joint appendix at 735.

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In addition, the court did mention succession planning.

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However, there was succession planning and while we understand from the Vancouver case that

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that alone may not be sufficient to prove age discrimination, but combined with asking an applicant when they are going to retire, combined with the OIG assessment, combined with the replacement of two individuals, 25 and 35, and we have succession planning, then that is certainly evidence the court should have considered with respect to the age discrimination.

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In addition, it wasn't sufficient.

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Can I just pause?

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The succession planning, was that

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the person who actually fired her.

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Was he engaged in that?

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The succession planning, yes, he would have been engaged in that.

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The succession planning would have been over the entire organization, but it's really Terry Gilmore who was the, I guess, architect, institutor of that, and he is one of the defendants who's named.

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And we have a number of positions that we're considering this morning before the court.

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One of them, and I would point the court back to the email.

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Let me back up for just one second.

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On the claims against Howard, who I understand is the one who actually fired her, is that right?

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He is the one who actually terminated her.

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Right.

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Was he involved in the succession planning?

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I thought that occurred before he even got there.

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Well, Terry Gilmore testified that they were actually in the process of completing the succession planning during that particular period.

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As the head IG, yes, he would have been a participant in that succession planning process.

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But they also had a third party.

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So everybody would have been involved in that, including us.

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Is there evidence that he was involved, other than that he would have been involved?

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Is there evidence?

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Do you just think it's likely?

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Well, I believe the OIG assessment, the 735, also discussed this conversation with Mr. Howard at that time period.

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And the last thing I'd like to mention, the court asked me what else the trial court ignored.

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So significant, we're looking at multiple positions here, not just the elimination of Ms.

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Rynosky out of her position, but also the non-selection of her as to the two positions that she applied for subsequently.

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And at Joint Appendix 1033, that to remind the Court is the email where Mr. Gilmore and Mr. Winters are discussing the position description and say we've made changes to the position description in light of the litigation from the previous applicant.

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That wasn't fully discussed in the Court's opinion.

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And more importantly, the request of Kathy Wynowski as to when she would retire combined with that email as to the position, it's clear it's direct evidence.

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I'm not sure why asking somebody when they plan to retire.

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are and planning is evidence of discrimination.

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Isn't that part of management to know all you can about what the future needs and your agents are going to be?

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Why is that evidence of discrimination?

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Asking someone when they're going to retire indicates that you have that person's age on your mind, and it is direct evidence.

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Do you not have it on your mind?

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I'm asking why it's evidence of discrimination.

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It seems to be evidence of planning.

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If you have people who are eligible for retirement on your staff, wouldn't it be irresponsible not to find out if they're planning to retire so you can do some successful things?

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Well, I think the cases, including Van Korr, tell us that that question alone may not be enough, but combined with everything else, a question as to when someone's going to retire and then they're terminated and replaced with a 25 and a 35-year-old certainly would indicate that they had that person's age on them.

[00:06:31] Speaker 02:
The 25 was a temporary stopgap, right?

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Well, she remains at the company.

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She didn't remain in that position, did she?

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She was ultimately, Frank Masaryk was selected for the permanent position.

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That's correct, Your Honor.

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But they also, I mean, Amtrak pointed to Bailey as a replacement for Rynowski in defending the sex discrimination claims.

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So, I mean, functionally, they understand that she was a replacement immediately, functionally, for Rynowski, no?

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She was just a temporary replacement.

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She wasn't the long-term replacement for Mr. Rynowski.

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Right, just supporting what you were saying, that she was put in the position to do the work in the immediate wake of Rynowski's departure.

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She was.

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And that's what Amtrak argued as well.

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That is what Amtrak argued, but now one of the more significant pieces of testimony in this case is the affidavit of Renee Lee combined with that email that I've mentioned before, the joint appendix at 1033.

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See, one of the things that we know is we have several different definitions from the defendants or several different attempted justifications to say why they believe Ms.

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Wynowski was terminated.

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Can you just tell me again what the J.A.'

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's side for the affidavit for Ms.

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Lee is?

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You will find Ms.

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Lee's affidavit, I believe it starts at 682 or 681 and goes through 685.

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That would be Ms.

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Lee's affidavit.

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So as we know that the defendants were trying to cover their tracks, and we've talked about who was moved into the positions, ultimately, I would remind the court, Ms.

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Lee was not selected for the position.

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She's not a former employee.

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She voluntarily submitted a declaration in this case.

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And what she told us is that at the time that she was offered the position, it was significantly under what she would have expected.

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She believed at the time that she found Terry Gilmore's behavior odd and suspected that they had preselected a less qualified candidate.

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Those were her thoughts as set on Joint Appendix page 682.

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And in fact, they did hire Frank Mazurek at the same salary that was offered to Renee Lee.

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It was a $35,000 pay increase for him.

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Now, when we combine her voluntary declaration in this case about the oddities as to her

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selection combined with the email, Joint Appendix 1033, saying they were altering the position description in light of the previous applicant's litigation.

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What about when they came back to her for another 10,000?

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Ms.

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Lee?

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Well, actually what they did with Ms.

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Lee is when she asked about benefits and other items, they asked her to withdraw her application.

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That's what she found so odd.

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If they weren't going to select- No, I understand that.

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But then on paragraph 10,

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He raised the offer to $165,000.

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Tell me.

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Right, which is just $10,000 more than what they offered to Frank Mazurk, who had eight years of experience, whereas Ms.

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Lee had 30 and was already in a position far more significant than his.

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Do we know how much Amtrak is able to offer?

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general counsel.

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We do.

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How much is that?

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We know that from the joint appendix 1033 where they discuss what the range of the position would be and you'll find in that two sentence email they discuss 120-180- but I'm sorry 120-150-180 that's what they were willing to offer at the time.

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And what are the three numbers why are there I didn't quite understand the dash dash dash?

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Well

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I'm not sure it's significant other than knowing that 120 was the bottom of the range and that 180 was the top.

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Correct, Your Honor.

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And I would just like to mention as well.

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I'm sorry, how much was she making in her current job, Ms.

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Lee?

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I have to tell you, Your Honor, I'm not 100% sure exactly what her pay scale would have been, but inevitably what she said is that at $155, she viewed that as significantly under market, so under market that that would indicate to her that they had preselected another candidate.

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I understand that point.

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I'm trying to focus on what happens after she's offered the extra money.

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Does she say that that's also under market?

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Yes, and she declines the position.

[00:10:38] Speaker 05:
I'm sorry, yes, she says that it was, but then they actually go back to her and they ask her, would she withdraw her application?

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I believe that's 682.

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And she mentions it at page 8, that they asked her to send an e- I'm sorry, this is 682 paragraph 8.

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They've asked her to send an email saying, please send me your intention to withdraw from consideration of the position.

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She said, this email appeared to support my suspicion that Amtrak OIG had already preselected a less qualified candidate and therefore was trying to force me to withdraw myself from consideration.

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So ultimately she didn't receive, ultimately she didn't go forward with the position.

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Ms.

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Brown, what's your position on the relationship between the decision makers?

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Because Amtrak makes quite a bit of emphasis on the fact that although Mr. Howard was the decision maker in the termination, that I believe it's Mr. Winters is then the person who takes the lead on hiring the replacement and hires Mazurek.

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And is there evidence of

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communications or is it your position that Mr. Howard influenced Mr. Winters?

[00:11:54] Speaker 05:
Yes, he did influence Mr. Winters.

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One, we know from that email again, 1033, that Mr. Winters is having a conversation with Terry Gilmore about the previous applicant and their selection and then

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I would say, Your Honor, this is classic cat's paw, but if we look at the appendix at 1016, that's a voluntary separation document.

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It's the one that changed Ms.

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Ranowski from reduction in force to early retirement.

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And in that, she's marked as ineligible for rehire.

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So the reason that she's not rehired for the second position is because of the discriminatory removal and marking effort.

[00:12:31] Speaker 03:
I understood Amtrak to be, in your view, maybe a dispute, but I understood them to be saying, well, we were first trying to do a reduction in force so she'd be eligible for severance when she decided not to take that, and I gather that includes a waiver of any claims, right, the severance.

[00:12:51] Speaker 03:
that then she was eligible for a different benefits package, which is an early retirement benefits package, and one way or the other, if you're gonna get those benefits, don't you have to be coded in a way that matches them?

[00:13:04] Speaker 03:
So it seems like there's sort of two different strata that are going on.

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One is the reasons, the actual reasons, and the other is treatment in terms of

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any kind of additional compensation at the end of her work with Amtrak.

[00:13:18] Speaker 03:
Those two things don't necessarily go to the same issue.

[00:13:22] Speaker 05:
I would say that they do.

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There's no testimony in this case that Ms.

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Rynowski had to be marked as a reduction in force in order to receive a severance.

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In fact, what we do know is while we have at least four shifting reasons why Ms.

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Rynowski was removed, it's our belief that the reduction in force was removed from this case, even though, by the way, the district court contended that Tom Gilmore had consistently said that he lost confidence in Ms.

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Rynowski.

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I would point the court back to the joint appendix.

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I want to back it quickly.

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I thought it was in the record that she got additional benefits if it went down as reduction in force rather than a forecall.

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Is what he says is a reduction in force kind of thing.

[00:14:02] Speaker 05:
There's nothing that says that she had to be labeled as a reduction in force in order to receive those benefits.

[00:14:09] Speaker 02:
If she were removed for cause, she didn't get the same benefits as reduction in force.

[00:14:13] Speaker 02:
I thought that was in the record.

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Am I wrong about that?

[00:14:16] Speaker 05:
Well, she wouldn't have been removed for cost even if she'd been taken out to go in a different direction.

[00:14:21] Speaker 05:
Even if you believe what they had proffered against her, there's no evidence that that would have been cause that would have precluded her from severance.

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And I realize my time is almost up.

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I would just like to say again, there were shifting definitions or justifications for Ms.

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Rynowski.

[00:14:36] Speaker 05:
Let me ask you.

[00:14:37] Speaker 03:
I think we'll give you a little time for about a minute.

[00:14:39] Speaker 03:
Let me just ask you about the discovery issue.

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you know, the discovery that the rule does say that if the other side doesn't want to show up, they have to move for a protective order.

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On the other hand, there was this outstanding question of the quite substantial overbreath of the 36 notice.

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What in, you know, had the two sides conferred and really focused on what

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council for Mr. and ask you really needed what would that 30 v 6 deposition have have focused on that really could have been the you know things that have not already been asked of others and not overbroadened the policies of Amtrak OIG the policies of Amtrak

[00:15:25] Speaker 03:
What policies, not all policies?

[00:15:26] Speaker 05:
The policies relating to termination, the policies relating to severance, the policy relating to how Ms.

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Rynowski's termination should have been requested and handled between Amtrak and the OIG, a highly significant issue in this case.

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Of course, the point of having policies is to prevent one single decision-maker's animus or discrimination against an employee from being carried out without checks and balances.

[00:15:50] Speaker 05:
We would have asked about the policies, the policies between the two of them, the terminations between the two of them, the documents required to remove Kathy Wynowski if there was a loss of confidence.

[00:16:01] Speaker 03:
Documents- So between the two of them, you mean the Office of the Inspector General and the Counsel's Office?

[00:16:06] Speaker 05:
The Amtrak, Mother Amtrak, and then the Office of the Inspector General.

[00:16:10] Speaker 05:
Yes, I'm sorry, those are the two of them, including if there was going to be a removal of Kathy Renowski, whether loss of confidence constitutes cause under their policies, whether additional... But she was an at-will employee, right?

[00:16:23] Speaker 05:
Well, she was an at-will employee, but there are...

[00:16:25] Speaker 05:
Policies that regulate how employees are to be removed.

[00:16:28] Speaker 03:
So yes classically at will and you didn't have Documents and from document requests about what the policy the implement policies are employee handbook

[00:16:38] Speaker 05:
We had some policies, but we did move to compel before this court and we did receive those after a lot of the depositions had already been taken.

[00:16:45] Speaker 05:
But there were severance policies that we did not have.

[00:16:48] Speaker 05:
There were a number of policies that we didn't have and frankly that we would have wanted to ask questions on.

[00:16:53] Speaker 05:
And I'll just say very quickly, there's a question as to Terry Gilmore says that

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He classified her as a reduction in force in order to allow her to get severance.

[00:17:02] Speaker 05:
How the documents as far as her justification were handled between Amtrak and OIG, how that was to be requested, what the checks and balances were.

[00:17:10] Speaker 03:
That last point, could you just recap how it was handled between OIG and Amtrak?

[00:17:17] Speaker 05:
She had a termination letter prepared and then also a severance document.

[00:17:21] Speaker 05:
And so the question would be as far as having Amtrak oversee those, what were the policies as far as who should have prepared those and what justification should have been listed in that termination letter and in the severance agreement and what was required.

[00:17:37] Speaker 05:
So that's just a highlight of some of the items that we would have handled in the 30B6.

[00:17:41] Speaker 05:
And I would just say it's not uncommon to get objections in a 30 v.

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6.

[00:17:46] Speaker 05:
It doesn't mean that the 30 v.

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6 doesn't appear.

[00:17:49] Speaker 05:
Lots of things can be worked out between the parties even during testimony, so.

[00:17:52] Speaker 03:
Although I'm in track's position was that they didn't even know, it was so broad, and it was rather broad in several of the items.

[00:17:59] Speaker 03:
It was so broad that they weren't really sure who they could produce that would be responsive and how to prepare that individual as counsel's required to prepare a 30 v.

[00:18:10] Speaker 03:
6 deponent.

[00:18:11] Speaker 05:
I understand that argument.

[00:18:12] Speaker 05:
I would just say then they argue against themselves and say that they believe that individuals who already testified in this case could give that same testimony that we had asked for or that the individual fact witnesses had already testified with the corporate designee would testify to.

[00:18:26] Speaker 05:
So I don't think it's as unclear as they make it out to be to advance that particular point.

[00:18:32] Speaker 03:
And what about when Judge Harvey says are there any outstanding discovery concerns and nobody says that there were any?

[00:18:38] Speaker 05:
Well, actually, in the transcript I asked, I said if I had another issue, for example, if we had an issue that we thought might be emotion and lemonade, something that we were already discussing at that point, would I raise it with you or would that be raised with Judge Leon?

[00:18:50] Speaker 05:
And in the transcript, he says that would not be raised with me, that would be raised with Judge Leon, and we did.

[00:18:55] Speaker 05:
We filed shortly after that on that exact issue.

[00:18:57] Speaker 05:
So I don't agree that we didn't say anything at that time or didn't indicate that that motion was coming.

[00:19:02] Speaker 05:
It's the only motion in Lemonay that we have filed in this case.

[00:19:05] Speaker 05:
It's the only thing that we were thinking about at that particular time.

[00:19:08] Speaker 05:
And I would just note that Judge Harvey has a policy that the parties are to meet and confer on discovery issues prior to that time.

[00:19:14] Speaker 05:
So he had made it very clear what he wanted to hear and what he did not.

[00:19:17] Speaker 05:
I literally asked that just to preserve that question and to see if it would come back to him.

[00:19:22] Speaker 05:
So I don't agree that we didn't raise it at that particular time.

[00:19:33] Speaker 00:
Good morning.

[00:19:34] Speaker 00:
May I please support Matthew Sharbaugh on behalf of Apple Use.

[00:19:38] Speaker 00:
Your honors, the district court in this case appropriately held that no reasonable jury could find that appellant was the victim of intentional discrimination based on her age or based on her gender.

[00:19:49] Speaker 00:
To start with the discrimination claim, there are several key undisputed facts in the record that render that theory not viable.

[00:19:57] Speaker 00:
To start, there's no dispute that on the same day Ms.

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Rynowski was terminated by Inspector General Howard, he also terminated her male supervisor.

[00:20:06] Speaker 00:
That fact alone stands diametrically at odds with the notion that she was singled out based on her gender.

[00:20:12] Speaker 00:
Further, after Mr. Howard terminated both Ms.

[00:20:15] Speaker 00:
Rynowski and her male supervisor, he temporarily detailed a female Inspector General employee to assume some of the legal responsibilities in the Office of Counsel.

[00:20:26] Speaker 00:
And when Amtrak OIG went to permanently fill the Deputy Counsel position several months later, it's undisputed that they offered the position to a woman who declined the job.

[00:20:37] Speaker 00:
Confronted with these undisputed facts, no reasonable jury could find that Ms.

[00:20:41] Speaker 00:
Rynowski was the victim of intentional gender discrimination.

[00:20:45] Speaker 00:
The same is true with the age claim.

[00:20:46] Speaker 00:
There are several key undisputed facts in the record that render that theory illogical.

[00:20:51] Speaker 00:
It's undisputed that Mr. Howard, the sole decision maker, is the same age as Ms.

[00:20:57] Speaker 00:
Rynowski.

[00:20:58] Speaker 02:
And the law right- He doesn't necessarily follow that he couldn't have been discriminatory just because he's the same age.

[00:21:06] Speaker 02:
possibility that a person in that age might say, I really like to surround myself with young people.

[00:21:12] Speaker 02:
It could be just as discriminatory as the person who was the young person.

[00:21:17] Speaker 00:
You're correct, Judge Sentel.

[00:21:18] Speaker 00:
It's not a dispositive factor, certainly, but the law recognizes that it creates a very strong inference because most 62 year olds don't discriminate against other 62 year olds simply based on their age.

[00:21:29] Speaker 00:
And you add to that that the sole hiring decision that Mr. Howard made into the office of council after terminating both Ms.

[00:21:37] Speaker 00:
Frenowski and her supervisor was to hire Kevin Winters, who now occupies the general counsel role in the office, and he was 61 years old at the time.

[00:21:47] Speaker 00:
So again, it's the wise logic to suggest that someone who's out to purge the office of 60 year olds would then turn around and fill one of those vacancies with a 61 year old.

[00:21:57] Speaker 00:
Instead, the evidence showed that Mr. Howard terminated Ms.

[00:22:01] Speaker 00:
Rynowski for the explanation he provided at the time and the explanation set forth today.

[00:22:06] Speaker 03:
So just to recap what you just said, your information undisputed evidence on why there was no age discrimination is that he hired Kevin Winters, who was 61, and

[00:22:19] Speaker 00:
and that Mr. Howard himself is the same age as the appellant in the case, Judge Pillard.

[00:22:24] Speaker 00:
And to be clear, those aren't the only facts in the record, but those are sort of the key facts that I think have to be the starting point when we ask what a reasonable jury would look at here, and those are powerful.

[00:22:37] Speaker 00:
You're right, Judge Santel, exactly.

[00:22:39] Speaker 00:
And when you contrast that with what's been put forward in the record in this case, there's just nothing from which a reasonable jury could find.

[00:22:46] Speaker 06:
Why couldn't a reasonable jury have concluded from Ms.

[00:22:48] Speaker 06:
Lee's affidavit that the offer to her was not a real offer, but rather intended to allow you to make the argument you're making now with respect to gender discrimination?

[00:22:59] Speaker 00:
Chief Judge Garland, the record just doesn't bear that out.

[00:23:02] Speaker 00:
And even Ms.

[00:23:03] Speaker 00:
Lee's affidavit itself, we talked about it before.

[00:23:05] Speaker 00:
It's a Joint Appendix 681 to 85.

[00:23:08] Speaker 00:
She says in there that she was offered the position.

[00:23:11] Speaker 00:
She turned down the position that was offered to her by Mr. Winters.

[00:23:15] Speaker 00:
So we extended the offer to her once.

[00:23:17] Speaker 00:
We went back.

[00:23:18] Speaker 00:
We offered her more money, offered the job again, and she declined it.

[00:23:21] Speaker 00:
The offer, the second offer, by the way, is more money than Mr. Masurik was offered when he came.

[00:23:26] Speaker 06:
He was less, he had less experience.

[00:23:29] Speaker 00:
He hadn't been an attorney as long, certainly, but he'd been working in the Office of Counsel for the NASA Inspector General, essentially doing the same job elsewhere.

[00:23:38] Speaker 03:
Although the announcement, I mean, in the government, when you advertise for someone with 10 years experience, you can't hire someone with only 9 years of relevant experience.

[00:23:46] Speaker 03:
And he was someone who didn't formally meet the advertised qualifications, isn't that right?

[00:23:51] Speaker 00:
I don't think we would agree with that, Judge Pillard.

[00:23:53] Speaker 00:
He'd worked in the office of counsel for the NASA IG for a decade.

[00:23:57] Speaker 00:
And he had the experience.

[00:23:58] Speaker 03:
But wasn't there something in the record about his experience being not quite what was advertised?

[00:24:04] Speaker 00:
There's an argument that he didn't have the 10 years as an attorney in the office.

[00:24:08] Speaker 00:
He did work in the office of counsel for that period of time.

[00:24:11] Speaker 00:
But this court has recognized that employers don't walk through a mechanistic checklist of the job application in all circumstances.

[00:24:19] Speaker 00:
can you quibble over whether he was a little bit less qualified than her?

[00:24:23] Speaker 00:
Perhaps, but at the end of the day, the standard is was Ms.

[00:24:27] Speaker 00:
Rynowski's superiorly qualified so that it's inherently indicative of discrimination, and this record just doesn't support that inference.

[00:24:35] Speaker 00:
But again, we also have to come back to the fact that this is a discrimination case, and she's gotta be able to put forward some evidence of age discrimination against these compelling facts in the record, which stand at odds with that notion.

[00:24:46] Speaker 03:
And the main, for you really, the main and most compelling argument is that the decision maker and the individual who was brought in, Mr. Winters, were 60 or over, very close in age to Ms.

[00:25:00] Speaker 03:
Rynowski.

[00:25:02] Speaker 00:
Those are two of the most compelling facts that I think a jury would have to look at.

[00:25:05] Speaker 00:
There's other evidence in the record.

[00:25:07] Speaker 00:
But again, to Judge Santel's point, at that juncture, it then turns to Ms.

[00:25:11] Speaker 00:
Rynowski to put forward a genuine dispute of material fact that would allow a finding of age discrimination on this record.

[00:25:18] Speaker 03:
No, we don't, though, require direct evidence in every discrimination case.

[00:25:23] Speaker 03:
You don't have to have evidence of discrimination in the sense that it leaps off the page.

[00:25:29] Speaker 03:
Circumstantial evidence suffices.

[00:25:32] Speaker 03:
What about the performance evaluation?

[00:25:37] Speaker 03:
I found it really striking that she had gotten an exceeds expectation performance evaluation so recently before and is there anything in the record?

[00:25:48] Speaker 03:
suggesting that anybody had counseled Ms.

[00:25:51] Speaker 03:
Wronowski to improve her communication or her attitude or helpfulness, anything?

[00:25:57] Speaker 00:
So you're correct that direct evidence is not required, certainly.

[00:26:00] Speaker 00:
Yeah, I've asked you three questions.

[00:26:01] Speaker 00:
Circumstantial evidence suffices.

[00:26:03] Speaker 00:
I'm gonna try to take them in order.

[00:26:04] Speaker 00:
As to your second point, you're correct that there is evidence in the record that Mr. Howard would have signed off on her performance evaluation.

[00:26:13] Speaker 00:
That's all we have.

[00:26:14] Speaker 03:
Well, even more than that, she was given this very positive feedback

[00:26:17] Speaker 00:
By a different person who was her supervisor, Mr. Carrier, who Mr. Howard terminated on the same day based on a loss of performance.

[00:26:25] Speaker 03:
He might have gotten a wrong deal too, but by her employer, I mean, what this woman is hearing is everything's going great.

[00:26:34] Speaker 03:
So that takes me to my next question.

[00:26:36] Speaker 03:
Is there anything in the record where anybody said,

[00:26:40] Speaker 03:
Hey, you know, we're under a whole kind of reorganization.

[00:26:42] Speaker 03:
We're rethinking things.

[00:26:44] Speaker 03:
And among the things we think we need to do is have a more candid attitude.

[00:26:49] Speaker 03:
And there's been some question about that with you.

[00:26:53] Speaker 03:
Anything at all?

[00:26:53] Speaker 00:
There is evidence in the record that she had issues before this decision came to pass.

[00:27:01] Speaker 00:
Dave Warren, who was the Assistant Inspector General for Audits at the time, his testimony is in the record at Joint Appendix 376 to 78 and probably some of the surrounding pages.

[00:27:12] Speaker 00:
But he had issues with Ms.

[00:27:13] Speaker 00:
Renowski.

[00:27:14] Speaker 00:
He approached her prior supervisor about it.

[00:27:16] Speaker 00:
She was counseled about those issues.

[00:27:18] Speaker 00:
But again, at the end of the day, that was Mr. Carrier's evaluation, not Mr. Howard's.

[00:27:22] Speaker 00:
And Mr. Howard, as a new Inspector General, came in and was entitled to his own assessment.

[00:27:27] Speaker 00:
And when you look at the other documentary evidence in the record from Mr. Howard,

[00:27:31] Speaker 00:
There are issues shown in the record.

[00:27:33] Speaker 00:
There's an email in the record at Joint Appendix 924.

[00:27:39] Speaker 00:
This is an exchange about a redaction issue, I believe, for a report that was going over to Congress.

[00:27:45] Speaker 00:
Ms.

[00:27:45] Speaker 00:
Wronowski referred to the Inspector General's question as foolish in the email, and he forwarded it on to the Assistant Inspector General for Investigations, Ms.

[00:27:54] Speaker 00:
Risch, and said, please handle this.

[00:27:56] Speaker 00:
I can't deal with this useless dialogue.

[00:27:59] Speaker 00:
anymore.

[00:27:59] Speaker 00:
So so there's there is other evidence in the record.

[00:28:02] Speaker 00:
And on top of that, you don't just have to take Mr Howard's word for it because the other top officials in the office, Mr Warren and Miss Rich share concerns with him at the time, and they echoed those concerns and discovery in this case.

[00:28:16] Speaker 06:
And those deposition pages are in the record, which is the page where you say Mr Warren said that she was counseled.

[00:28:24] Speaker 00:
Yeah, I was also looking for that.

[00:28:25] Speaker 00:
He told a prior

[00:28:27] Speaker 00:
Mr. Warren's testimony – I can get the exact page.

[00:28:31] Speaker 00:
It should be near Joint Appendix 376 to 78.

[00:28:33] Speaker 06:
But he talks – What is it – what is it he said about the counseling?

[00:28:37] Speaker 00:
That's what I was – He approached Ms.

[00:28:41] Speaker 00:
Rynowski's prior boss, Mr. Carrier, with a concern about the way she'd been interacting with him.

[00:28:45] Speaker 00:
And the testimony, I believe – I don't have it in front of me – is that he understood that Mr. Carrier spoke with Ms.

[00:28:51] Speaker 00:
Rynowski about that issue.

[00:28:53] Speaker 00:
But again, we have to remember that Mr. Howard is coming into this as a new inspector general.

[00:28:58] Speaker 00:
He's entitled to his own assessment.

[00:29:00] Speaker 00:
He's now the boss of the office.

[00:29:02] Speaker 00:
And I think the other thing that's important when we think about this case is that we're not talking about someone who makes widgets, who's supposed to make 10 widgets a day, and they are only making five.

[00:29:12] Speaker 00:
And let's performance manage this person back to square one.

[00:29:15] Speaker 00:
This is a very sensitive position in a very sensitive office that was created by Congress, and it's incumbent on someone in that position to demonstrate confidence and sound judgment in the eyes of the leader of that office.

[00:29:26] Speaker 03:
I understand that for sure, Mr. Sharp, and I don't think anybody would question, anybody would question Amtrak's prerogative to have in place legal counsel in whom it has utmost confidence.

[00:29:40] Speaker 03:
It is also, however, common and has been for decades that one of the ways that discrimination occurs is that somebody, you know, the young African American attorney, the woman, the woman in her mid-career is

[00:29:55] Speaker 03:
told everything's going great great great and to the extent that people are unhappy they're not engaging they're not supervising they're working around that person and then they say to that person one fine day thank you we no longer need your services or thank you we don't expect you to make a partner without any kind of feedback or opportunity to fix it and part of that is somehow the assumption that this person

[00:30:20] Speaker 03:
is unable to fix it, is unable to meet the demands of the office.

[00:30:26] Speaker 03:
So that itself is actually a very common piece of evidence of discrimination, is the kind of, you know, everybody's sailing full sails according to the employee, and then the next day the door is shut in her face.

[00:30:40] Speaker 03:
And so, you know, I understand your position is, well, it may look like a raw deal, but it's not discrimination.

[00:30:47] Speaker 03:
I'm just asking.

[00:30:48] Speaker 00:
That's exactly right, though, Judge.

[00:30:50] Speaker 00:
I mean, well, I don't agree that it's a raw deal.

[00:30:52] Speaker 00:
I think that the record in the case bears out that there were issues, that Mr. Howard's concern was legitimate and held in good faith, and that's the standard here, right?

[00:31:00] Speaker 00:
What decision-makers think?

[00:31:01] Speaker 03:
But were they communicated to Ms.

[00:31:02] Speaker 03:
Rynowski, and was she given an opportunity to step up and respond?

[00:31:10] Speaker 03:
That's the question I have, and I think that's why we were both looking in the deposition and trying to find evidence that she was counseled.

[00:31:18] Speaker 03:
And it may be that it's in some of the deposition pages that were not provided to us, but what we have is various people talking among themselves.

[00:31:27] Speaker 03:
She's kind of cranky, or whatever, I'm characterizing, but people saying, well, I found her a little bit difficult to deal with.

[00:31:33] Speaker 03:
And what I'm looking for is evidence

[00:31:35] Speaker 03:
that anybody went to her and alerted her a to actually

[00:31:44] Speaker 03:
support the notion that people really did take this that seriously, but B, that they acted with her as if she was someone who was able to respond if fairly dealt with.

[00:31:58] Speaker 00:
Judge Pillard, again, the record bears out that at least in one instance that I can think of standing here, Mr. Warren had an interpersonal issue with her and went to her prior boss about it.

[00:32:08] Speaker 00:
At the end of the day, is there an argument that she could have been provided with more counseling?

[00:32:13] Speaker 00:
Perhaps.

[00:32:14] Speaker 00:
Any counseling.

[00:32:14] Speaker 00:
However.

[00:32:15] Speaker 00:
Any counseling.

[00:32:17] Speaker 00:
But this is not a situation where we're second guessing, you know, did Amtrak make the wisest decision?

[00:32:22] Speaker 00:
Is this a case of intentional discrimination?

[00:32:24] Speaker 02:
That would be the follow-up question I would have.

[00:32:27] Speaker 02:
This is a discrimination case.

[00:32:29] Speaker 02:
Is there any evidence that she was treated any differently with regard to further counseling than any other employee of any age?

[00:32:35] Speaker 00:
No, Judge Santel, there's not.

[00:32:36] Speaker 00:
And in fact, her male supervisor was terminated on the same day as her.

[00:32:41] Speaker 00:
And no evidence that he had counseling either.

[00:32:43] Speaker 00:
That's exactly right, Judge.

[00:32:45] Speaker 00:
I do want to touch briefly on the discovery dispute, because there were some questions about that below and when my counterpart was up here.

[00:32:57] Speaker 00:
You picked up on the point here, which is that this was not some sort of effort to stonewall discovery on the part of my clients in this case.

[00:33:04] Speaker 06:
Well, I'm interested in the question of why no protective order.

[00:33:07] Speaker 06:
So the local rule says seven days notice.

[00:33:10] Speaker 06:
There was seven days notice.

[00:33:12] Speaker 06:
They noticed the last day.

[00:33:13] Speaker 06:
I've been in this situation.

[00:33:16] Speaker 06:
That's a bad thing.

[00:33:17] Speaker 06:
I would immediately go to the judge or the magistrate and ask for a protective order, and they would immediately grant it.

[00:33:22] Speaker 06:
Somebody waits to the very last day, OK.

[00:33:24] Speaker 06:
But you didn't do that.

[00:33:26] Speaker 00:
We cooperatively worked, and really in good faith, tried to find some narrow topics on which we could produce someone.

[00:33:33] Speaker 00:
And I hope that the record bears that out.

[00:33:35] Speaker 00:
I was the one who engaged in both of those efforts.

[00:33:38] Speaker 00:
Frankly, Judge Stentel, we were before Judge Harvey for a discovery hearing, as was already discussed.

[00:33:43] Speaker 00:
He asked if there were any other issues, and she said that it wasn't brought up at the time.

[00:33:48] Speaker 00:
So I frankly thought that the issue was dead at that point.

[00:33:51] Speaker 03:
Except for the motion to eliminate, and she said that was the only eliminate issue pending between

[00:33:56] Speaker 03:
the parties.

[00:33:56] Speaker 00:
Nothing was pending at that point, Judge Pillard.

[00:33:58] Speaker 03:
The only outstanding issue.

[00:33:59] Speaker 00:
If there were some ambiguity about what he meant, a quick question would surely clarify.

[00:34:04] Speaker 03:
Because at that point, the burden's on you under Rule 37.

[00:34:07] Speaker 03:
If there's a deposition notice, you have to show up.

[00:34:11] Speaker 03:
And if you have a problem with the scope of it or the nature of it or some privilege that you think it's going to inquire into, burden's on you.

[00:34:16] Speaker 03:
So I think under the rules,

[00:34:18] Speaker 03:
Maybe she was playing hardball, but presumably you or whoever was handling this below has done employment cases before and knows one of the standard things that someone would want in an employment case is to question somebody knowledgeable at Amtrak about documents that, as she says,

[00:34:35] Speaker 03:
They didn't receive until after the other deponents had already been deposed.

[00:34:39] Speaker 03:
I mean, this question about progressive discipline, about what kind of notice, what kind of counseling is ordinarily given, about how other people who have been fired have been treated, that's pretty critical if you are a plaintiff and have the burden of proof in an employment case, is it not?

[00:34:52] Speaker 00:
Judge Pillard, appellant had the opportunity to develop all that evidence.

[00:34:57] Speaker 00:
They took 11 depositions.

[00:34:58] Speaker 00:
They deposed everyone in the Amtrak IG Council's office.

[00:35:02] Speaker 00:
They had the people and they asked the questions and they had the opportunity to do it.

[00:35:05] Speaker 00:
That's one of the problems with the notice.

[00:35:08] Speaker 03:
Provided according to Ms Brown.

[00:35:09] Speaker 00:
I guess the broader issue here is, you know, if we were here on a review of a motion to, you know, compel or something, then I think these arguments would be potentially a little bit more meritorious.

[00:35:20] Speaker 00:
But we're standing here on a denial of a motion for sanctions that sought evidence preclusion that would have prevented our clients from effectively testifying on their defense.

[00:35:28] Speaker 06:
But there's no reasoning provided by the judge.

[00:35:31] Speaker 06:
I mean, if that were the ground that the judge said, look, Dave, I take it your argument is,

[00:35:38] Speaker 06:
The judge could have said no because the only sanction they sought was all this preclusion.

[00:35:43] Speaker 06:
Of course, there are other sanctions available, but that was the only one they thought.

[00:35:46] Speaker 06:
But the judge didn't say that was the reason.

[00:35:48] Speaker 06:
We don't know what the reason was.

[00:35:50] Speaker 00:
I think you're right, that is the point, that this was this sort of, they went right to the maximum dial sanction here, when this court's case law clearly says that that's not warranted unless other sanctions weren't.

[00:36:01] Speaker 06:
What the judge didn't say, that was the reason.

[00:36:03] Speaker 00:
This court has said that in cases where the reasoning is evident from the record, the case is part of Cronemann versus Donovan, that you don't need to rely on a fulsome explication from the district judge.

[00:36:16] Speaker 00:
And I think here, that fact.

[00:36:17] Speaker 06:
The difference between fulsome and nosome.

[00:36:20] Speaker 06:
In this case, it's no sum.

[00:36:22] Speaker 00:
Judge Garland, our position is that given the nature of the sanctions sought and the way that this was approached by appellant below and the fully developed record that the court was well within its discretion to deny the motion for sanctions.

[00:36:34] Speaker 06:
Further questions?

[00:36:35] Speaker 00:
Thank you.

[00:36:36] Speaker 00:
We request that the court affirm the district court.

[00:36:38] Speaker 06:
Thank you.

[00:36:39] Speaker 06:
Is there a time left?

[00:36:41] Speaker 06:
I think we've indicated we'll give you another minute or two.

[00:36:50] Speaker 05:
Your Honor, I would just like to come back briefly to Renee Lee's declaration.

[00:36:55] Speaker 05:
That's Joint Appendix 685, paragraph 14.

[00:36:59] Speaker 05:
In there, Ms.

[00:37:00] Speaker 05:
Lee says that she was never given a formal offer.

[00:37:03] Speaker 05:
And in her view, they could have simply offered the job to another candidate without it being necessary for her to withdraw herself.

[00:37:10] Speaker 05:
But she says there that she did not get a higher salary.

[00:37:12] Speaker 05:
She knew higher salaries were available.

[00:37:15] Speaker 05:
And this, combined with the shifting justifications that we've received.

[00:37:19] Speaker 02:
No, no, I thought she was offered that.

[00:37:20] Speaker 05:
She says I have never been given a formal offer.

[00:37:23] Speaker 05:
What she discusses in here is that there was money, there was discussion about benefits.

[00:37:27] Speaker 05:
Mr. Winters told her that the benefits weren't going to be as good as what she currently had.

[00:37:31] Speaker 05:
She said she wanted to make that decision, but no formal offer.

[00:37:36] Speaker 03:
Without a formal offer, if somebody says it's not really worth going down that road because the money's not enough, that's not irregular to say, well, OK, let's not spend further time on this.

[00:37:48] Speaker 06:
I thought the reference to the formal offer was before the offer of 165.

[00:37:53] Speaker 05:
In paragraph 15, she said, withdraw myself from consideration when I had never been given a formal offer.

[00:37:59] Speaker 06:
Right.

[00:37:59] Speaker 06:
Wasn't the withdraw myself from consideration asked after she turned down the 155?

[00:38:05] Speaker 05:
I believe you may be correct, Your Honor, yes, that it was with a 155.

[00:38:08] Speaker 05:
I would just note, Your Honor, as to paragraph 12, she says she had lots of reasons for accepting an offer, including that her office was moving, the location, lots of other considerations for her beyond just the amount.

[00:38:20] Speaker 05:
That, combined with the shifting designations,

[00:38:22] Speaker 05:
And then keeping in mind, it was Tom Howard himself who filed an answer in this court saying Ms.

[00:38:26] Speaker 05:
Rynowski was eliminated as part of a rip.

[00:38:29] Speaker 05:
It certainly shows that there was an attempt to cover up or hide behavior.

[00:38:33] Speaker 05:
And Reeves versus Sanderson Plumbing tells us that's indicative of discrimination.

[00:38:37] Speaker 05:
There is an inference that hiring a younger employee can be discrimination.

[00:38:41] Speaker 05:
So there's two inferences, one of the older worker, one of hiring the younger workers.

[00:38:47] Speaker 05:
And Mr. Howard never took issue with a 2014 review.

[00:38:51] Speaker 05:
No indication whatsoever, no single document that Mr. Rynowski had any performance issue.

[00:38:56] Speaker 05:
So I would just indicate from that perspective, this case warrants a trial by Mr. Rynowski's peers.

[00:39:03] Speaker 05:
We would ask that the case be remanded for trial and also that the court's decision on the motion and lemonade be reversed.

[00:39:09] Speaker 05:
Thank you, Your Honor.

[00:39:10] Speaker 06:
Thank you both.

[00:39:11] Speaker 06:
We'll take the matter under submission.