[00:00:01] Speaker 00: Case number 16-7082, Samia Ashraf Hassan versus Embassy of France and the United States Appellant. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: Lopez for the Appellant, Ms. [00:00:11] Speaker 00: Atkinson for the Appellee. [00:00:12] Speaker 00: Ms. [00:00:13] Speaker 00: Lopez. [00:00:16] Speaker 02: Thank you, Your Honor. [00:00:17] Speaker 02: May it please the Court, I would like to reserve three minutes of my time for rebuttal. [00:00:21] Speaker 02: We asked this Court to reverse the judgment against the Embassy of France, and I'll address the 2002 pregnancy incident in a bit. [00:00:28] Speaker 02: But to begin, I'd like to emphasize a few essential big-picture points. [00:00:32] Speaker 02: As we explained in our briefs, there's insufficient evidence that Ms. [00:00:36] Speaker 02: Manis, Ms. [00:00:37] Speaker 02: Ashraf's first supervisor, held any sort of discriminatory animus against Ms. [00:00:41] Speaker 02: Ashraf based on national origin, race, or religion. [00:00:45] Speaker 02: The evidence showed only Ashraf's subjective beliefs that she assumed or understood Ms. [00:00:52] Speaker 02: Manus to be referring to her or quote her people as terrorists. [00:00:57] Speaker 02: Under well-established case law, subjective evidence is simply not enough. [00:01:02] Speaker 02: Also, with regard to the supposed comparators, the other pregnant employees who were not Muslim and who were not fired, they are not, as a matter of law, similarly situated. [00:01:14] Speaker 02: That is, there was no evidence that those employees had committed any sort of dishonesty offense in the same way that Ms. [00:01:22] Speaker 02: Ashraf had. [00:01:23] Speaker 02: Now, without those key pieces of evidence, there is nothing supporting the trial court's finding that Mrs. Mannes' conduct was motivated by national origin race, religious discrimination. [00:01:36] Speaker 05: And if you agree with us that there's insufficient evidence regarding Mrs. Mannes' motives... I just ask once, the dishonesty was that she didn't tell them when she was hired that she was pregnant? [00:01:47] Speaker 02: To put a finer point on it, the dishonesty was... Seems like a pretty fine point. [00:01:52] Speaker 05: Is that what we're talking about? [00:01:54] Speaker 02: It is, but there's a nuance to it, so if you don't mind if I explain the nuance. [00:01:59] Speaker 02: Mrs. Maness, according to Mrs. Maness, on April 16, 2002, [00:02:05] Speaker 02: Mrs. Ashraf reported her pregnancy for the first time. [00:02:08] Speaker 02: And then Ms. [00:02:10] Speaker 02: Ashraf said, actually, no, I told you in March, mid-March. [00:02:13] Speaker 02: And Ms. [00:02:13] Speaker 02: Maness said, I don't have any recollection of you telling me earlier about this. [00:02:17] Speaker 02: So, you know. [00:02:18] Speaker 05: And that was material because the embassy would not have hired a pregnant woman? [00:02:21] Speaker 05: Is that what you're saying? [00:02:22] Speaker 02: No. [00:02:23] Speaker 02: That's not what I'm saying. [00:02:23] Speaker 02: And why was it material? [00:02:24] Speaker 02: It was material because, in Mrs. Maness' view, she had lied. [00:02:27] Speaker 05: Yes, I appreciate that. [00:02:29] Speaker 05: But why is the lie material? [00:02:30] Speaker 05: In what way was it? [00:02:32] Speaker 05: I mean, the way you put it, it sounds like the embassy's position is it doesn't hire pregnant women. [00:02:36] Speaker 05: That can't possibly be a position. [00:02:38] Speaker 05: So then why does it matter whether, why was it material whether she, even if it were true, why does it matter that she didn't say the date when her pregnancy occurred? [00:02:51] Speaker 02: There were two reasons why it was important to Ms. [00:02:54] Speaker 02: Maness to understand when her employees were pregnant. [00:02:57] Speaker 02: Number one, there was a very generous maternity leave. [00:03:01] Speaker 02: And I believe the policy at the time was report your pregnancy within the first three months, and then we can plan for your being gone. [00:03:08] Speaker 02: And so if you tell us during those first three months, you can take advantage of the very generous maternity leave. [00:03:15] Speaker 02: The second reason was just practical. [00:03:17] Speaker 02: Mrs. Mannes already had two people who were pregnant at the time, and she had to shuffle them around and deal with their being absent. [00:03:25] Speaker 02: And so when Ms. [00:03:27] Speaker 02: Ashraf reported her pregnancy, she felt like she was caught flat-footed. [00:03:32] Speaker 02: Oh my gosh, I have to now plan for a third person. [00:03:34] Speaker 02: Had you told me, it would have been a whole lot easier to plan this. [00:03:38] Speaker 02: earlier, because now we're up against a time problem. [00:03:42] Speaker 04: She was still only like three months pregnant under your facts, or even two months pregnant. [00:03:47] Speaker 04: Correct. [00:03:48] Speaker 04: So what time crunch is she up against? [00:03:50] Speaker 02: Well, according to Ms. [00:03:51] Speaker 02: Mannes, she was told after the three-month mark. [00:03:55] Speaker 02: And again, Ms. [00:03:56] Speaker 02: Mannes was operating under what she understood to be the policy. [00:04:02] Speaker 02: So if you agree with us that there's insufficient evidence regarding Mrs. Maness's motives regarding national origin race discrimination, then all of the conduct, including the conduct we just discussed, falls away as inadequately linked under Baird versus Gottbaum. [00:04:17] Speaker 02: Assuming you disagree with us on that, I'll go back and talk a little bit more in depth about this much disputed incident in 2002 to, again, reemphasize why we think it's so important. [00:04:32] Speaker 02: First, Ms. [00:04:33] Speaker 02: Ashraf testified at trial that she first reported her pregnancy. [00:04:36] Speaker 05: Wait, can we just pause for that? [00:04:37] Speaker 05: So I took it from your briefs that if we don't agree with you, then it is sufficiently linked. [00:04:45] Speaker 02: Sufficiently linked. [00:04:46] Speaker 02: If you find that there was adequate evidence that Mrs. Manis' conduct was motivated by racial discrimination, national origin, then yes, it's linked. [00:04:58] Speaker 02: So at trial, she testified March 15, 2002, she first reported her pregnancy. [00:05:03] Speaker 02: Mrs. Maness lectured her the next day, which would have been a Saturday, March 16, and that she supposedly – that is, Ashraf wrote a fax reporting all of this to the secretary-general immediately thereafter, but she didn't send that letter to the secretary-general until April 16 when she was officially told by Ms. [00:05:22] Speaker 02: Maness that she would be terminated. [00:05:26] Speaker 02: That timeline we now know simply can't be true. [00:05:28] Speaker 02: Mrs. Maness was in Paris on March 15 and March 16 and was not back in Washington, D.C. [00:05:35] Speaker 02: until late March. [00:05:37] Speaker 02: That is, the story that Mrs. Ashraf told at trial is an impossibility. [00:05:41] Speaker 02: Add to that fact that for the two years leading up to the trial and in her pretrial statement, she insisted that all of these events took place on April 16, 2002. [00:05:53] Speaker 02: This is therefore not a case where you have two permissible views of the evidence and you should just defer to the fact finder who found one version more credible. [00:06:01] Speaker 04: Rather, in our view, you have one permissible view of the evidence. [00:06:09] Speaker 04: zero or one, on or off, the district court, after hearing lengthy argument and briefing, etc., made findings and explained his view of how the evidence could be harmonized, so to speak. [00:06:32] Speaker 04: How are we to find clear error of those findings? [00:06:36] Speaker 02: Well, we think that one of the errors was where the district court was acting as a super personnel department. [00:06:43] Speaker 02: It did attempt to harmonize the inconsistencies. [00:06:46] Speaker 02: But what it did in doing so was it basically accepted a timeline that would have been impossible based on our objective evidence. [00:06:54] Speaker 02: It also found that the response that Mrs. Maness had chosen, firing, was too harsh. [00:07:01] Speaker 02: And that's the reason that the judge said... [00:07:06] Speaker 04: When I was on the district court, I used in these Title VII cases a portion of the model jury instructions from the Third Circuit because we don't have model instructions in our circuit. [00:07:18] Speaker 04: One of those instructions says that if, for example, you have a policy against stealing office supplies, [00:07:29] Speaker 04: And if a woman is found to have taken the pencils home from work and is fired, and there's no question that she did it, but men also take pencils home from work and aren't fired, then you can infer that the stealing of the pencils wasn't the real reason. [00:07:54] Speaker 04: And it seems to me that what the district court was doing here was doing the same thing, was saying that this wasn't the real reason because it really doesn't seem to make sense. [00:08:10] Speaker 04: And that's not acting as a super personnel department under our case law, that's just finding that there's pretext. [00:08:17] Speaker 02: I understand, and certainly that was what the district court found. [00:08:20] Speaker 02: In our view, that is error. [00:08:22] Speaker 02: We think that the district court second-guessed the disciplinary measure that Mrs. Mannes chose based on its own opinion, essentially. [00:08:32] Speaker 02: In other words, the comparators' evidence, we think, should go out the window, because they weren't comparators as a matter of law. [00:08:39] Speaker 02: So you can't necessarily use the there were men and there were women in the pencils argument, because we don't think there are comparators here. [00:08:45] Speaker 04: There was nobody else. [00:08:47] Speaker 02: They were indeed, but they did not commit. [00:08:50] Speaker 02: There's no record evidence that they committed any sort of dishonesty offense, which the district court accepted that there had been a dishonesty offense. [00:08:57] Speaker 02: I see I'm running through my time, so I'll reserve the rest for rebuttal. [00:09:03] Speaker 05: Ms. [00:09:03] Speaker 05: Atkinson. [00:09:15] Speaker 01: May it seize the court. [00:09:16] Speaker 01: Katherine Atkinson on behalf of Saima Ashraf Hassan, the plaintiff of Pelley here. [00:09:24] Speaker 01: Your Honor, the embassy failed to note all of the other evidence that the district court considered when it found that Manas's firing of Ashraf Hassan was motivated by discrimination. [00:09:35] Speaker 01: In particular, the district court relied on Manas's prior comments to Ashraf Hassan that had occurred a couple of months earlier. [00:09:43] Speaker 01: in which Ms. [00:09:45] Speaker 01: Manas waved a newspaper and said, your people have done it again, and what are – why are your people doing this? [00:09:51] Speaker 01: Nita, I remind you of the time period. [00:09:53] Speaker 01: This was December of 2001. [00:09:54] Speaker 01: The newspapers were filled with articles about Pakistani and Muslim terrorist attacks. [00:10:00] Speaker 01: The district court considered that. [00:10:03] Speaker 01: Ms. [00:10:03] Speaker 01: Manes was not asked about it at all at trial. [00:10:06] Speaker 01: And the district court found Ashraf Hassan credible with regard to her testimony about it. [00:10:10] Speaker 01: The district court then looked at the facts surrounding the 2002 termination. [00:10:16] Speaker 01: and held that this was a disproportionate response, even if Ashraf Hassan had lied, which the district court did not conclude. [00:10:24] Speaker 01: But it said that even if she had, this did not make sense. [00:10:27] Speaker 01: This did not seem to hold water, I use Judge Boesberg's words, that someone would fire a woman upon announcing she was pregnant. [00:10:36] Speaker 01: To be clear, she was, as the court noted, she was only two months pregnant. [00:10:40] Speaker 01: Manas, at times, [00:10:41] Speaker 01: claimed that this was beyond the three-month period that was required, but it was not. [00:10:47] Speaker 01: Ashraf Hassan's medical records noting her last menstrual period are a part of the record at Supplemental Appendix 23 and she became pregnant in the middle of February. [00:10:58] Speaker 03: What do we know about why she was reinstated? [00:11:03] Speaker 01: When she left, she sent the letter to the secretary general that is in the appendix, and she sent a letter to the ambassador, which we don't have a copy of. [00:11:11] Speaker 01: It's not in the record. [00:11:12] Speaker 01: The ambassador called her back. [00:11:14] Speaker 01: Actually, well, she was at an attorney's office and asked her to come back to work. [00:11:19] Speaker 01: And the ambassador told her that he was bringing her back to work, that this was not appropriate. [00:11:24] Speaker 03: Well, what I was asking was, is there anything in the record about any investigation that the higher-ups did? [00:11:31] Speaker 01: There's nothing in the record about any investigation, and Ashraf Hassan reported discrimination throughout the subsequent years of her employment, such as in 2006, and the embassy never investigated it, and in fact has maintained throughout that Ashraf Hassan never reported discrimination, although we have the emails in the record in which she uses the word discrimination, and I'm being targeted because of my national origin on several occasions. [00:11:57] Speaker 01: Throughout this litigation, [00:12:00] Speaker 01: The embassy has maintained that Ashraf Hassan's accounting of events is untrue. [00:12:05] Speaker 01: They say she lied. [00:12:06] Speaker 01: The district court had this case before it for five years. [00:12:10] Speaker 01: It listened to three days of trial. [00:12:12] Speaker 01: Ashraf Hassan was impeached on cross-examination by the embassy for every single day of that three-day trial. [00:12:19] Speaker 01: She was on the stand for hours. [00:12:21] Speaker 01: And the court considered her testimony, her demeanor, Manas's testimony, Manas's demeanor, as well as [00:12:27] Speaker 01: the abundant documentary evidence that corroborated Ashraf Hassan's version of events in finding, in making its factual findings and credibility determinations that this constituted a hostile work environment. [00:12:41] Speaker 05: Questions from the back? [00:12:44] Speaker 05: Thank you. [00:12:44] Speaker 01: Thank you. [00:12:49] Speaker 05: Ms. [00:12:49] Speaker 05: Lopez has time, correct? [00:12:55] Speaker 02: Just a few points for the record. [00:12:58] Speaker 02: Mrs. Ashraf testified that she didn't even know which newspaper it was that Ms. [00:13:02] Speaker 02: Manus was waving, The Washington Post, The New York Times, so – and she was 25 feet away. [00:13:07] Speaker 02: Also, Ms. [00:13:08] Speaker 02: Manus, there's record evidence that she denied referring to Ashraf as a terrorist and denied saying negative things about Muslims in general. [00:13:17] Speaker 05: And finally, as to – I'm sorry, what did the judge find on this? [00:13:21] Speaker 02: The judge accepted Mrs. Mannes' inferences that she was referring to her as a terrorist. [00:13:27] Speaker 05: So we have to say that no reasonable fact finder could have made that determination, right? [00:13:33] Speaker 02: Correct, because we think it was all subjective. [00:13:35] Speaker 05: But your evidence is you have testimony by one person and testimony by the other person. [00:13:41] Speaker 05: It's a little hard for us to say that no reasonable person could have concluded this person rather than that person. [00:13:47] Speaker 05: That's the reason we have a judge or a fact-finder in here. [00:13:51] Speaker 02: I understand. [00:13:51] Speaker 02: I'm saying her evidence is insufficient. [00:13:54] Speaker 02: And finally, as to Your Honor's question about the reinstatement, Mrs. Mannes testified that the ambassador said, you know what, we just don't have enough proof that there was a lie. [00:14:04] Speaker 02: So as far as an investigation, it's a he – it's a she said versus a she said. [00:14:09] Speaker 02: And so the ambassador said essentially we have to bring her back. [00:14:12] Speaker 05: Thank you, Your Honors.