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Case number 16-5313, Marcus L. McDaniel, Appellant, versus Sonny Perdue, U.S.

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Secretary of Agriculture.

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Ms.

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Renard for the Appellant, Ms.

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Lyons for the Appellee.

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Ms.

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Renard, good morning.

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Good morning, Your Honors.

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Ellen Rayno for the Appellant, Marcus McDaniel.

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Your Honors, in this case, we have... Can you put that microphone a little closer?

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Oh, sorry.

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There.

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I'm not usually quiet.

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I'll try to speak up.

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Mr. McDaniel, in this case, has brought forth evidence not only of discriminatory statements by the decision-maker, but also ample evidence of pretext.

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The discriminatory statement, you're not white, stop acting white.

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A jury couldn't find that the reason that the supervisor made that statement was because she didn't think that he, as a black man, should be behaving the way he was behaving.

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That is race discrimination.

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A jury could also dismiss it as a stray remark.

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But, Your Honors, that is for the jury to decide.

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When was the remark made?

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The remark was made in the context of a performance discussion.

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She did not like that he hand-delivered a document to her instead of emailing it.

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When was that in relation to the job action that gives rise to this?

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Well, it's all within the same period.

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He did not even finish his... How long of a period is it?

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I do not know.

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Well, he was only employed for 11 months.

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Yes.

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And I thought in his deposition, he made it clear that it wasn't anywhere near the summertime.

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In other words, he was let go in July.

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And he was pretty vague about when the remark was made.

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But it was not made in June or May, or at least the record doesn't show it.

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No, it wasn't made right before.

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But, Your Honors, that's part of the weight of the evidence.

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If it had been made.

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So what happened if it connected

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Why is this evidence that he was terminated or his job was not made permanent for racially related reasons?

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He was terminated, Your Honor.

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It doesn't need to be connected directly to the employment decision, because we're not asking for the court to view it as direct evidence.

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Well, for you to win this litigation, there has to be a finding that the termination was based on an impermissible reason to win this race.

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Yes, there has to be a finding.

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How is that remark connected to the termination?

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It is, we are going under the McDonnell Douglas framework.

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Our strongest evidence is evidence of pretext.

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We don't need any racial remarks even to get to a jury on this type of case.

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You need to prove that there is a co-connection between his race and determination.

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And we can do that through circumstantial evidence.

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And this statement is- The only evidence that I've heard reference to is that one remark

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some undefined period before the termination.

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And Your Honor, that is just part of the circumstantial evidence.

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We don't need any racial stigma.

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What is the other part?

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I understand the McDonnell framework, and we've gotten past the fact that he's a member of a group that's discriminated against.

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We're not dealing with the circumstance in which we have to find somebody else who's hired that isn't in the race.

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Okay, I can tell you the other.

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If you have the tender of an unprejudiced reason, a business reason, then the burden shifts back to you, does it not, to establish that there is a firing for an unlawful reason, right?

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Yes, and we've got pretext evidence.

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Now, you have to offer evidence.

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You have to offer evidence from which the trier of fact can reasonably find that.

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to be tender.

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Is that one remark some months before?

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No, is that what?

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What is the other?

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No, there's there's actually four types of evidence that we're offering.

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One is the statement and the fact that she falsely denied making the statement, which shows a guilty mind.

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The second is, in the beginning she said she had problems with his performance.

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She told the HR person that it was his work that she was concerned about.

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Then when it became apparent that she wasn't going to be able to back up that statement because he had gotten a good performance evaluation, that's when she switched to conduct.

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There's also the fact that the evidence of his misconduct is not specific at all.

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She can't say what he did.

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specifically that led her to fear him.

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A loud voice and rolling his eyes.

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Because Judge Sullivan went into great detail about he raises voice, he used threatening body language, and he had a lot of details.

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I'm sorry, body language is, this court has found to be a very vague

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The witnesses, the supervisor who terminated him could not say specifically what he had done, what was his misconduct.

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The court has held that you can find such vague accusations unworthy of credence because there's no specifics.

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The only specifics that were given were that he rolled his eyes, he sighed, and he had a loud voice.

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You don't get fired.

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Well, I think people in meetings can roll their eyes and sigh.

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There you go.

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I'm not afraid you're going to come get me.

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I think if I were doing that right now, you would think I was being disrespectful to your argument.

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Disrespectful, yes, but not afraid for violence.

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And also, what I think is important is what the jury thinks of that.

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And finally, a very important fact is that

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The supervisor lied in her affidavit and said she did not make the decision.

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There's no nuance to this.

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She specifically wrote, I did not make the decision to terminate Marcus McDaniel.

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Leticia Toomer made the decision.

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She said that in her affidavit.

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That's not true.

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And this court has held in Evans v. Sebelius that

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Even just controversy over who made the decision is enough to get your claim to a jury.

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Well, that's one.

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That was one factor that court used.

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Just one.

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Right.

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And here we have it as one factor as well.

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Let me take you back to what I was talking about.

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Judge Sullivan says one incident was so disturbing that agency employees discussed whether they should call security.

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Several female staff members testified that they felt afraid of Mr. McDaniel, particularly because they believed he was allowed to carry a gun for his duties.

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I mean, Judge Sullivan... That wasn't true, though.

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He wasn't carrying a gun.

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They don't have to be right.

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You understand this is not a board of review for personnel actions?

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Yes.

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As long as they're acting for reasons that are not prejudicial actions.

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But when you have somebody making a comment about someone's race, like stop acting white, you're not white, and you have her lying about making the decision, why would she say she didn't make the decision?

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She was the supervisor.

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She has no reason to say she didn't make the decision other than the fact she didn't want to be tagged with it because she had an unlawful reason for making that decision.

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I see my time is up because I need to reserve for a bottle.

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I'm happy to answer anything further.

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We'll give you the remainder of your time in reply.

[00:08:24] Speaker 03:
Okay, thank you.

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Ms.

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Lyons?

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Good morning.

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May it please the Court, Jane Lyons from the U.S.

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Attorney's Office on behalf of the Secretary of Agriculture.

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USDA ended Appalach's probationary employment because some of his co-workers and supervisors, at times, perceived his conduct as disrespectful or less than professional.

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The district court privately entered summary judgment after discovery because the undisputed evidence in the record supports the nondiscriminatory reasons for the agency's action and does not permit a reasonable fact-finder to infer an unlawful one.

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I'd like to start with a simple proposition, perhaps,

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Ms.

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Renaud argued that the denial of the responsibility for the termination by Ms.

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Spate somehow prevented summary judgment here, and that is not the case.

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That she denied the statement in an affidavit she explained in her deposition at fairly considerable length.

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What she meant there was, I didn't have the authority in my position at the time to sign the termination letter.

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And so I, Tish Toomer signed it because she had the authority, but she accepts responsibility for being the person who

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chaired the meeting, gave input at the meeting, and then made the decision.

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She agrees with being the principal person.

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She says she's the final decider.

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She says it's a collaborative decision insofar as she had feedback from other people.

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But she accepts full responsibility for the decision to terminate Mr. McDaniel.

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And providing more detailed information once the litigation begins does not create a genuine issue of material fact in the record.

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And that's the Hairston case.

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In terms of the issue of the conduct, there's quite a bit of unrebutted information in the record about his conduct at this meeting.

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It was a performance standards meeting as sort of the highlight.

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And Mr. McDaniel's account of that meeting is on page 60 of the Joint Appendix.

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And he doesn't refute any of the language that his coworkers reported, that he sat with his arms crossed, he made inappropriate comments,

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which Ms.

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Spate described as smart alecky during her deposition.

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Another employee described him, again, as sitting with his arms crossed and having a sharp stare.

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And Ms.

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Detter, who sat directly across from him, said he threw himself back in his chair, he rolled his eyes, he sighed, and she described that conduct as disrespectful and negative and argumentative.

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taking together all of that under-budded evidence when you're a probationary employee is enough to cause you some problems.

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And I think it's interesting that Mr. McDaniel's own comments about his supervisor and his relationship with Ms.

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Spight reinforce these notions.

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Could I just be clear?

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You said to cause him some problems, including termination.

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Yes, particularly when you're a probationary employee, Your Honor.

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As McKenna versus Weinberger made clear back in 1984, the same standards don't apply when you're probationary.

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That's why I wondered why you qualified your statement.

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I highlight it a bit, because there is a difference.

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If this were a case where he was a permanently tenured employee, it might be a slightly different picture.

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I don't think it would come out differently, but it is due to a different standard.

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I thought your phrase was enough to cause him some problems.

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I thought that was qualified enough to get him fired.

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It's perhaps not the best choice of words.

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It is enough to have him not be converted to permanent employment.

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It's more precise.

[00:12:09] Speaker 04:
How do you distinguish what was said in Ayisi Eto versus Fannie Mae?

[00:12:16] Speaker 00:
Oh, well, that is quite the case.

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First of all,

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Well, the court did say that the statement, quote, for a young black man smart like you, we are happy to have your expertise.

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I think I'm already paying you a lot of money.

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And our court concluded that that was sufficient direct evidence to go to the jury.

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Yes, Your Honor, and that's because it's directly tied to the decision that is under review.

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It's a person who is seeking a promotion, and that is what he is told basically is the reason he's not getting it.

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So it's directly tied.

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It's direct evidence of animus, for one thing.

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For a young black man, under the Supreme Court's decision, Ash versus Tyson Foods, the young black man is particularly problematic.

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And there's also evidence in that Aise Atoe case that the pejorative word had been used by another employee.

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So with those two facts, that's a very, very different case than what we have here, which is at most an ambiguous comment made by a decision maker, but unrelated to the decisional process.

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If it's ambiguous, does that mean it's for the jury to decide?

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No, Your Honor, because in light of all of the evidence on this record, it wouldn't be a reasonable inference that there was an animus that infected the decisional process.

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And some of the other evidence that makes that unreasonable is that Ms.

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Spake recommended the termination of a white employee for very similar conduct.

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That is, how he conducted himself at meetings with management.

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And she is also an African-American.

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That doesn't prevent, of course, an inference, but it makes it a much, much less reasonable inference on this record.

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How poor was it who said, I can get rid of you any time I want?

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Was that spate?

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That is also alleged to have been misbate.

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Yes, Your Honor.

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But that is, again, not in the course of, it's in the course of dealing with him as a supervisor on some things.

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Perhaps the sort of remark that is designed to try to help him, let him know that she's having difficulty with him.

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And he describes having difficulties with communication with her.

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in interesting ways.

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So it's Miss Spade he has that with, and then there's another time he describes a meeting with Miss Toomer where he said he openly told her, those are his words, that he wasn't trying to be coy or smart with her.

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So there are a couple of other occasions where he's having difficulty communicating and he knows he's being perceived.

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But doesn't that last statement, he gets the benefit of the reasonable inference that he, at this point,

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I'm sorry, Your Honor, which is the last statement?

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What he said, he wasn't trying to be cute or

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cute or coy with her.

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He gets the benefit of reasonable inferences based on the record, but it's hard to draw any reasonable inference from that remark out of his mouth other than.

[00:15:10] Speaker 05:
Well, you put it in the context that he was having difficulty communicating with people.

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But he, at least in that case, tried to indicate he wasn't trying to be coy or a smart aleck.

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Right.

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Yes, on that occasion, he's saying he's not trying to be.

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But it does betray an awareness that he might be.

[00:15:29] Speaker 05:
He might be perceived that way.

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Correct.

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He might be perceived that way.

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But the perception that he is being smart alecky or coy or... So I thought if you were a probationary employee, you could be fired for any reason.

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You could be fired for any reason or no reason at all.

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Could I finish?

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I'm sorry.

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that you could be fired for any reason so long as it's not unconstitutional or a violation of Title VII.

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And maybe there's some other statutory provisions.

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Of course, like the Age Discrimination Act, for example.

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Yes, as long as there isn't an unlawful reason, you can be terminated as a probationary employee for any reason or really no reason at all.

[00:16:12] Speaker 05:
So in the case that Judge Henderson asked you about,

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You distinguished that on the ground.

[00:16:20] Speaker 05:
Well, tell me how you distinguished it.

[00:16:22] Speaker 00:
I tried to distinguish it because the statement on its face, for a young black man smart like you, we are happy to have your expertise.

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I think I'm already paying you a lot of money, is directly connected to the decision not to pay him more money, not to promote him.

[00:16:39] Speaker 00:
And it is direct evidence of animus, particularly because of the use of the term young black man.

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Whereas in this case, we just have an ambiguous remark about race.

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And Title VII doesn't prohibit mention of race in the workplace.

[00:16:52] Speaker 05:
So do we know in that other case what the timing was?

[00:16:57] Speaker 00:
It's connected with the explanation he's given for why he's not getting a promotion or it's in the meeting.

[00:17:02] Speaker 00:
I can't quite remember, but it's very close in time.

[00:17:05] Speaker 00:
No, that's not.

[00:17:05] Speaker 00:
It's connected to the decisional process.

[00:17:08] Speaker 05:
No, you misunderstand my question.

[00:17:10] Speaker 00:
Oh, I'm sorry.

[00:17:11] Speaker 05:
Judge Sentel was asking Appellants' Council about timing.

[00:17:15] Speaker 05:
Correct.

[00:17:17] Speaker 05:
And as Judge Henderson pointed out, he'd only been working there 11 months.

[00:17:22] Speaker 05:
So I was wondering, in the other case, what was the timing?

[00:17:26] Speaker 05:
Not, as you responded, in terms of, was it connected?

[00:17:31] Speaker 05:
But when did it occur?

[00:17:33] Speaker 00:
I don't know how far into his employment.

[00:17:38] Speaker 05:
That's my point.

[00:17:39] Speaker 00:
Yeah, I don't know how far into his employment he sought the promotion.

[00:17:42] Speaker 00:
I can't recall that.

[00:17:44] Speaker 00:
Much less.

[00:17:44] Speaker 00:
That's even mentioned in the record.

[00:17:46] Speaker 00:
That's right.

[00:17:47] Speaker 00:
I'm sorry, I can't answer that with certainty, much like I can't answer with certainty on this record when the remark was made.

[00:17:53] Speaker 05:
So I thought the point of the Supreme Court case in that case was it's almost like an environmental issue.

[00:18:01] Speaker 05:
This is how the supervisor is viewing the employee.

[00:18:07] Speaker 05:
And then when the employee comes up for promotion, he doesn't get it.

[00:18:12] Speaker 05:
And that was enough to say summary judgment is inappropriate.

[00:18:17] Speaker 05:
I'm asking you whether you view the cases that way or not.

[00:18:21] Speaker 05:
I just want to be clear about that.

[00:18:23] Speaker 00:
I view the cases as requiring a direct, when there's direct evidence of animus, like I think you're talking about there, it's direct evidence of an unlawful bias.

[00:18:34] Speaker 00:
Then I think you're in the category of cases where summary judgment is not allowed.

[00:18:38] Speaker 05:
And it almost doesn't matter.

[00:18:41] Speaker 05:
in terms of the timing of it?

[00:18:45] Speaker 00:
Yes.

[00:18:46] Speaker 00:
If there's direct evidence by a decision maker, I think that's an important clarification.

[00:18:50] Speaker 00:
A stray remark by a coworker who has nothing to do with the decision does not take you out of summary judgment.

[00:18:57] Speaker 00:
But that is very different from what we have in this case, which is at most an ambiguous comment.

[00:19:04] Speaker 00:
by a decision maker, but unrelated to the decisional process that led to the fire.

[00:19:09] Speaker 05:
And that statement is what?

[00:19:11] Speaker 00:
The statement in this case.

[00:19:12] Speaker 05:
The ambiguous statement that's unrelated?

[00:19:14] Speaker 00:
Yes.

[00:19:16] Speaker 05:
Which you're identifying as what?

[00:19:18] Speaker 00:
The statement in this case is you aren't white.

[00:19:21] Speaker 05:
Stop acting white.

[00:19:22] Speaker 00:
Stop acting white.

[00:19:23] Speaker 00:
Stop acting white.

[00:19:24] Speaker 05:
OK.

[00:19:25] Speaker 00:
Yes.

[00:19:27] Speaker 00:
See, my time has expired.

[00:19:28] Speaker 00:
If there are no further questions, respectfully ask that this decision be affirmed.

[00:19:32] Speaker 00:
All right.

[00:19:32] Speaker 00:
Thank you.

[00:19:35] Speaker 04:
Okay.

[00:19:38] Speaker 03:
Your honor, I think it's very important that you have to look at the totality of the evidence.

[00:19:43] Speaker 03:
The statement that we're offering, we acknowledge it is not direct evidence because it is not, I fired him because he was trying to act white.

[00:19:52] Speaker 03:
But this court has held

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at least in two recent cases, that a racially biased statement does not need to be directly connected.

[00:20:02] Speaker 03:
The first case was Calavera v.

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4 in 2011.

[00:20:06] Speaker 03:
A non-promotion was at issue, and the biased statement was about men bonding in the office over serving in the military.

[00:20:16] Speaker 03:
It had nothing to do with a non-promotion.

[00:20:18] Speaker 03:
The second case, Morris v. McCarthy, just last year in 2016, it was decided that the statement about another employee that a white woman won't give him a promotion, therefore I'm going to give him a promotion, that that statement was part of the quantum of evidence that needed to be considered because it was the decision maker who said it, just as it is here.

[00:20:44] Speaker 03:
So you don't really get

[00:20:48] Speaker 03:
employers, decision makers saying, I'm going to suspend somebody because they're white or I'm going to do this because he tries to act white.

[00:20:56] Speaker 03:
But here you have, she made this statement to him in private that gives you a window into her mind.

[00:21:01] Speaker 05:
But what is the evidence that just had to do with his delivering something as opposed to emailing?

[00:21:08] Speaker 03:
Well, we don't know why she said it, but Mr. McDaniel... I didn't ask why.

[00:21:13] Speaker 03:
Okay.

[00:21:13] Speaker 05:
We're trying to get the context in which she said it.

[00:21:17] Speaker 03:
Yes, that is the context in which she said it.

[00:21:20] Speaker 05:
And what could a reasonable jury think that statement meant in that context?

[00:21:26] Speaker 03:
That the way he behaved was too proper.

[00:21:28] Speaker 03:
for a black person, and she didn't appreciate... I mean, that was the impression that he had, that she didn't appreciate that he... His acting properly?

[00:21:37] Speaker 03:
Yes, that he was behaving business-like and handing her a formal document instead of sending an email.

[00:21:45] Speaker 03:
That's the inference that I draw.

[00:21:47] Speaker 03:
A jury can draw a different inference.

[00:21:49] Speaker 05:
The point is she's saying he doesn't... What I'm getting at is the argument that's made, not the argument, the position is he's fired or he's terminated.

[00:21:58] Speaker 05:
as a probationary employee because of his conduct.

[00:22:01] Speaker 05:
And the statement on which you're relying is where she's saying he is acting too properly, too respectfully.

[00:22:10] Speaker 05:
So I'm trying to understand how you're connecting that to racial discrimination.

[00:22:16] Speaker 03:
You know, I would trust the jury to sort that out.

[00:22:19] Speaker 05:
I understand, but juries have to be reasonable.

[00:22:21] Speaker 05:
And we have to understand that a reasonable jury could.

[00:22:23] Speaker 05:
And that's why I was asking what your theory was.

[00:22:26] Speaker 03:
You could go with another theory that she thinks because he speaks loudly and rolls his eyes that that's acting white.

[00:22:35] Speaker 03:
I don't know.

[00:22:37] Speaker 05:
No, I'm just focusing on the evidence.

[00:22:39] Speaker 05:
And you've got a trial court decision here where we have to be able for you to prevail to find those findings were clearly erroneous.

[00:22:50] Speaker 05:
I'm sorry?

[00:22:51] Speaker 03:
No, it's a de novo review.

[00:22:53] Speaker 03:
So what I'm asking is that this evidence be considered in the context of the other evidence, the shifting from performance to conduct.

[00:23:01] Speaker 03:
Right.

[00:23:02] Speaker 05:
That's my mistake.

[00:23:03] Speaker 05:
But I still don't understand the connection between the statement and the race being terminated because of his race for that statement.

[00:23:15] Speaker 05:
I understand the disrespectful conduct.

[00:23:18] Speaker 03:
That's all I'm getting at.

[00:23:20] Speaker 03:
The reasonable inference to be drawn, and it's not the only one, would be stop acting white means whatever he's doing.

[00:23:28] Speaker 03:
I don't know which thing she thinks is the equivalent of acting white.

[00:23:32] Speaker 03:
She's saying, she's making a racial statement that you're not acting the way that black people should act.

[00:23:38] Speaker 03:
And you remember, she's African-American also.

[00:23:41] Speaker 03:
So she is telling him.

[00:23:42] Speaker 03:
But this is summary judgment, right?

[00:23:44] Speaker 05:
So you had a burden here, didn't you?

[00:23:49] Speaker 03:
We have the burden to show an issue of fact.

[00:23:53] Speaker 03:
Right.

[00:23:53] Speaker 03:
And here we have, in addition to evidence of pretext, we have evidence of racially, I mean, it's obviously based on race because she says stop acting white.

[00:24:07] Speaker 03:
If he was white, she couldn't say that to him.

[00:24:09] Speaker 03:
It would be just fine to her.

[00:24:11] Speaker 05:
So the inference is she's saying what?

[00:24:16] Speaker 05:
that because he's black, he would be lazy and he'd just rely on email as opposed to delivering the document personally?

[00:24:23] Speaker 03:
That could be an inference.

[00:24:25] Speaker 05:
I have to tell you, I wasn't sure what was intended here.

[00:24:30] Speaker 03:
Your Honor, I'm not sure either, but I do trust the jury to figure out why she would make such a statement.

[00:24:38] Speaker 03:
She denies making it, so that's another fact that goes in our favor.

[00:24:43] Speaker 05:
But your client hasn't offered any explanation of it either.

[00:24:48] Speaker 03:
Well, because he's not in her mind.

[00:24:49] Speaker 03:
All he knows is that... But how he perceived it.

[00:24:53] Speaker 03:
Okay.

[00:24:53] Speaker 03:
I think you have to... If you analogize it to the gender situation and you had a woman who was... You're acting too much like a female.

[00:25:03] Speaker 05:
You ought to act more like a man.

[00:25:04] Speaker 03:
Or you're acting too masculine.

[00:25:07] Speaker 03:
You're acting too manly.

[00:25:09] Speaker 03:
you should wear nicer dresses or something.

[00:25:11] Speaker 03:
You don't fit my image of how a black person should be at work.

[00:25:17] Speaker 03:
And I don't know what her image is, but it wasn't Mr. McDaniel.

[00:25:23] Speaker 03:
and that is a racial, she was thinking about race when she was thinking about the way he acted in the workplace.

[00:25:34] Speaker 03:
And then she shifts reasons, she denies that she made the decision, and yes, she may have an explanation, but the jury gets to decide whether they believe her explanation.

[00:25:46] Speaker 03:
Okay, all right, your time's up, thank you.

[00:25:48] Speaker 03:
Okay, thank you.