[00:00:07] Speaker 00:
Good morning.

[00:00:14] Speaker 03:
May it please the court?

[00:00:16] Speaker 03:
I'm David Branch.

[00:00:18] Speaker 03:
I represent the appellant Larry Haynes.

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A Rule 56F motion requesting additional discovery should be granted almost as a matter of course unless the moving party has not diligently pursued discovery of the evidence.

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This is the

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holding or at least one of the holdings in the case of Convertino v. Department of Justice.

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Next, an employer, if an employer offers a legitimate non-discriminatory reason, then the plaintiff must be afforded a fair opportunity to show that the employer's stated reason was in fact pretext for unlawful discrimination.

[00:01:00] Speaker 02:
But Mr. Branch, the Convertino case provides a roadmap for the type of affidavit that's to be filed, correct?

[00:01:10] Speaker 03:
your honor, it is, it is, I don't want to say if it's a roadmap, but it does provide guidance.

[00:01:17] Speaker 02:
And it says there are three, the affidavit must accomplish three things, right?

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It must, first of all, outline particular facts

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He intends to discover and why those are needed.

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Where in your affidavit does it outline the particular facts that Mr. Haynes needs, your honor, to discover and why he needs those?

[00:01:45] Speaker 02:
I didn't see that.

[00:01:46] Speaker 03:
Your Honor, what we stated in our affidavit is Mr. Haynes needed to discover the information on how this reorganization was conducted.

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He requested electronic messages between the people who were involved in the decision-making process.

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So that should cover that particular request.

[00:02:11] Speaker 02:
If you tell us exactly how the decision... The affidavit describes categories of information, but it doesn't identify particular in facts the intended discovery and why those need it.

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You contrast it to the affidavit that was used in the Convertino case, and there's a vast difference between the two.

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Your honor, we believe... So that's my concern, is that the affidavit here is just not sufficient.

[00:02:38] Speaker 02:
It just says, again, identifies categories of information that could possibly be relevant, but it doesn't have the level of specificity required by Convertino.

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Your honor, we believe that Convertino, basically the first step in the process is

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You're entitled to discovery if it's obvious, if the discovery is needed to respond to legitimate non-discriminatory reasons.

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And this court in Conventino as well as the Chappelle-Johnson case stated that there may be direct evidence and you don't even need to get to the McDonnell-Douglas framework.

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The court is cautioned, you should, discovery rarely should be denied unless there's some reason for a delay.

[00:03:29] Speaker 02:
No, I'm with you on that.

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I'm with you on that.

[00:03:31] Speaker 02:
I think you start with the idea that you're going to get discovery.

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But then again, Convertino gives us a roadmap for what the affidavit looks like.

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And again, that's my concern is that.

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But just doesn't cut it here.

[00:03:44] Speaker 03:
Your honor, the holding in Convertino, as of course Judge Henderson wrote the opinion, the holding in Convertino, well, let me just say that the district court cited the language in Convertino, but the district court did not follow the holding in Convertino.

[00:04:03] Speaker 03:
And that holding was that discovery should be provided if requested, if there's a reasonable basis for it.

[00:04:10] Speaker 01:
And I agree that... You're assuming that a reasonable basis was established.

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Your honor, we believe based on the facts in Chappelle Johnson as well as Conferentino, Mr. Haynes easily establishes the facts to support it.

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His claim is that my position was selected.

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I've worked here 27 years.

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My position was selected to add these additional licensing requirements.

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I was given six months to obtain the licensing requirements.

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And Chappelle Johnson, I believe the facts are similar.

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She essentially alleges that she was at a grade, I think, 11.

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She was downgraded to a nine.

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The agency created a grade 13.

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And she alleged that Caucasians... Was that a case where every apparent comparator who was not African-American was treated better?

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in Chapelle Johnson.

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Your Honor, my reading of Chapelle Johnson was that the agency had a practice, she at least alleged that the agency had a practice that when Caucasian employees did not meet the requirements for the position that the agency would lower the grade of the position so that Caucasian employees would qualify.

[00:05:25] Speaker 03:
Mr. Haynes makes the same type of argument, same type of allegation.

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The agency has a practice of

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permitting Caucasian employees a longer period of time to get whatever necessary licenses are required if there was a reorganization.

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And here he said these employees, his position would normally, his license would normally require about four years to obtain.

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He was given six months.

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Caucasian employees were given 18 months to two years to get the license to remain in their position.

[00:05:58] Speaker 02:
If I can go back to the district court opinion, page 25, Judge Cotoli writes, missing from his declaration is an outline of the particular facts he intends to discover

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and why these yet to be discovered facts are necessary.

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That's exactly my point.

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Can you tell me in what way was the district court abused her discretion in ruling that missing from the declaration was an outline of the particular facts and why these are necessary?

[00:06:32] Speaker 03:
Your Honor, what we said is tell us exactly how you arrived at this conclusion.

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That's what our discovery request, that's what our affidavit

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uh... elicited with the information we provide in the affidavit.

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All it says is you need the following information.

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I'm counsel of record and I need this information to respond to the motion for summary judgment.

[00:06:58] Speaker 03:
No, that's not all we state.

[00:07:00] Speaker 02:
Then you identify eleven categories of information, but I don't see where you provide an outline of the facts you intend to discover and why they are necessary for your case.

[00:07:11] Speaker 03:
Your Honor, so once again, I think the first step is if the discovery is self-evident, and the court noted this in the Acasse case, then no direct... Was that before or after Convertino?

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I have to get the exact...

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I mean, it seems to me Convertino tells us what we're supposed to do.

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It's almost a check the box sort of thing.

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You need to have an affidavit that shows the facts that you need to discover, just like was done in the Convertino case, and why you need them.

[00:07:44] Speaker 03:
Your Honor, I don't think that's the whole thing, of course.

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So, of course, I'd have to defer to the court what was actually meant by Conferentino, but I don't think that the court intended to have a strict adherence to you have to do X, Y, and Z, and this has to be included in the declaration.

[00:08:06] Speaker 03:
The facts differ from case to case.

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The courts have made that clear.

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And if you're saying start the process by telling me exactly what the

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happened here with the how michael how mister hangs was selected to be uh... terminated and required to you know i'm just looking for an outline of the facts you intend to discover and why these are necessary your honor we believe that we've included that in the affidavit and that information at that info have we been permitted to conduct discovery on that information it would have told us we would have learned for example if someone sent an email saying

[00:08:45] Speaker 03:
you know, we want to get rid of the older African-American employees or employees who can't, you know, have difficulty reading or as Mr. Haynes.

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So we believe that we satisfy the requirements of Convertino and particularly the holding of Chapelle Johnson as well as Convertino with the affidavit that was submitted to the court.

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And we believe that, you know,

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If there was direct evidence in the record, we didn't even have to go through the McDonald Douglas analysis to reach this conclusion.

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Your honor, I'd like to reserve at least a minute here before I'm rebuttal.

[00:09:37] Speaker 00:
Good morning.

[00:09:37] Speaker 00:
May I proceed?

[00:09:41] Speaker 00:
I would like to just address a couple of the questions that Judge Griffith posed to Mr. Branch regarding the content of the declaration that was submitted in support of the request for a Rule 56D discovery.

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First, Convertino does provide, as Judge Griffith stated, a roadmap as to what must be contained in the declaration.

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It states you have to set out

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the particulars of the facts that you want to discover, advise as to your prior efforts before filing the motion to gather this information, and also provide information as to whether it is in fact discoverable.

[00:10:28] Speaker 00:
In this particular case, and under Convertino, you do, as Mr. Brandt say, have to look at it on a case-by-case basis.

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And in this particular case,

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Mr. Branch submitted a declaration in support of a 56D relating to Mr. Haynes' claim under Section 1981 for race discrimination.

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That is the starting point for determining whether or not any additional discovery is necessary.

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In this particular case, we, DC Water, presented our legitimate business reason for why Mr. Haynes was terminated.

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He was terminated because there was a job elimination of his original position of an electrical equipment repairer.

[00:11:16] Speaker 00:
It was replaced by a journeyman electrician position.

[00:11:20] Speaker 02:
When you couple the complaint with the 56D affidavit, is there any serious doubt though what Mr. Branch was looking after?

[00:11:32] Speaker 02:
Aren't we perhaps elevating form over substance with your reading of Convertudo?

[00:11:38] Speaker 00:
I don't believe so because DC Water in this particular case, unlike in Chapel Johnson, which the appellant relies on, went beyond just proffering a legitimate business reason.

[00:11:49] Speaker 00:
They also provided additional evidence, including about over 120 pages of documentation that showed not only how the reorganization was implemented, but also its effect.

[00:12:04] Speaker 00:
There was evidence in the record that showed, originally,

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There were seven electrical equipment repairs.

[00:12:12] Speaker 02:
I'm just focusing on the affidavit.

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That's what interests me is whether this affidavit is sufficient because it is an extraordinary thing to cut off discovery, right?

[00:12:20] Speaker 00:
It is extraordinary, but there's a reason why we have Convertino in that standard is because not every case that's filed warrants spending time going through discovery because there may be sufficient evidence readily available to both parties

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so that a motion for summary judgment can be granted early on in the case.

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And in this particular situation, DC Water proffered evidence that went to the legitimate business reason and also as to whether or not in fact it disqualified African Americans from working in the new journeyman electrician position.

[00:13:00] Speaker 00:
We started off with seven incumbents.

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The new licensing requirement was imposed.

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Immediately, two African Americans qualified to continue in the position.

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The other five individuals were provided training by DC Water.

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This is all in the record.

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At the completion

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of the initial period of training, one African American and one Caucasian employee qualified.

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That left three African Americans who did not qualify and were both given additional time.

[00:13:33] Speaker 02:
That's almost a merits inquiry.

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It's like taking a peek at the merits and saying, you know, it doesn't look so far like he's got a very good case there, whereas Confrontino is asking something more limited, isn't it?

[00:13:48] Speaker 00:
provides an outline for the declaration if plaintiff believes that they need additional discovery in the case.

[00:13:55] Speaker 02:
And it also provides an outline or informs the court as to whether or not... But it seems to me you're saying he didn't need additional discovery because he really doesn't have a case because the case that the district brought forward is so compelling.

[00:14:07] Speaker 02:
But that's not the inquiry, is it?

[00:14:09] Speaker 02:
The inquiry is whether he can show that there's information he needs to support his case that he hasn't yet had access to.

[00:14:20] Speaker 00:
My position is not that

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there's no need for discovery, but he does have to make an effort before filing the Rule 5060 to gather information to prove that the proper legitimate business reason is pre-tax.

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And in this particular case, what was in the record was the fact that African Americans were not excluded from this position.

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It was then the burden was on appellant to outline in the 5060 declaration the specific categories

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of areas he needed to explore in order to prove that it was pretextual.

[00:14:57] Speaker 02:
In point six, he asked for all documents and electronic communications reflecting context with the division regarding electrician's duties.

[00:15:06] Speaker 02:
That's broader than just his department, right?

[00:15:11] Speaker 00:
I'm not quite sure what appellant intended by that category.

[00:15:16] Speaker 00:
My interpretation would be these were the only electricians impacted by this reorganization, so it would be just limited to the department.

[00:15:26] Speaker 02:
That's what the discover... There were not electricians in other departments at the water authority?

[00:15:31] Speaker 00:
There may have been, but the electricians that were impacted by the reorganization were just in this department.

[00:15:37] Speaker 02:
Well, that's what he wants to know.

[00:15:38] Speaker 02:
I mean, that's what he wants to know.

[00:15:40] Speaker 02:
It was this broader than just his department, right?

[00:15:44] Speaker 00:
He needs to be, we all in the record demonstrated that this particular reorganization impacted a particular group of employees.

[00:15:53] Speaker 02:
There's no evidence that... He wants to find out if it impacted more, right?

[00:15:57] Speaker 02:
That's his point.

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His point is that you're looking too narrowly, that the intentional discrimination was potentially broader than just his particular group of workers.

[00:16:10] Speaker 02:
Isn't that his theory?

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And why shouldn't he be allowed to take discovery to see if that's the case?

[00:16:17] Speaker 00:
Mr. Haynes, who worked for DC Water for 27 years, was in the position to provide information to his council as to whether or not there were electricians outside of his department who likewise were required to have this new licenser.

[00:16:33] Speaker 00:
And therefore, that would have been specified in the declaration as an area they would want to explore.

[00:16:39] Speaker 02:
So you're saying he would have enough information to know who the victims of her discrimination were?

[00:16:45] Speaker 00:
he would have enough information to know whether or not there were other electricians at DC Water.

[00:16:52] Speaker 00:
And then the next question would be, what efforts were made to identify who those electricians were and why was Appellant unable to gather that information?

[00:17:25] Speaker 01:
Is there anything in the record on the extent of which the, it's the, for the exact job description, the group that he wants to bring in as comparatives, the utility system operators, the extent of which any or all of them do the job of an electrician?

[00:17:55] Speaker 00:
There was evidence in the record we submitted a declaration from a manager who was responsible for the reorganization, which stated that the utility systems operators was a different position from the equipment.

[00:18:08] Speaker 01:
Well, we know that.

[00:18:11] Speaker 01:
I mean, I'm looking at the essential functions list on page 181, and it does not seem to mention the work of an electrician.

[00:18:23] Speaker 01:
On the other hand, it's conceivable that within that description, which is in some ways general, there could be electrical work.

[00:18:32] Speaker 00:
For the utility systems operator?

[00:18:34] Speaker 00:
Yes.

[00:18:35] Speaker 00:
The evidence in the record is the testimony from a supervisor who is responsible for the utility systems operator that states that they were not electricians.

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They did not provide or perform those types of responsibilities.

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And there also is in the record the memorandum of understanding

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a memorandum of agreement between the union and DC Water regarding the reorganization and the need for recertifications for certain positions.

[00:19:02] Speaker 00:
And it clearly differentiates between the utility systems operators and the electrical equipment repairers.

[00:19:25] Speaker 00:
Unless the panel would like to hear argument on the other issues they're up for appeal, I will sit down.

[00:19:46] Speaker 01:
utility system operators did electrical work.

[00:19:52] Speaker 03:
Your honor, there is not enough evidence in the record to, we don't have that information in the record yet.

[00:20:01] Speaker 01:
All we have is, Mr. As you emphasize, Payne's was there 27 years.

[00:20:09] Speaker 01:
presumably working side by side or at least in concert to some degree with people in this other classification, he would have an opportunity to notice doing electrical work.

[00:20:22] Speaker 03:
He alleged in the complaint that the other people that he compared himself to had a longer period of time to get whatever license that was required.

[00:20:31] Speaker 01:
Yes, but does he produce evidence that

[00:20:36] Speaker 01:
Either all of them or some subset of them did electrical work equivalent to what he was doing.

[00:20:42] Speaker 03:
Your Honor, he does not present evidence of that.

[00:20:46] Speaker 03:
But one of the issues in the case, and this is Mr. Haynes, we've mentioned this, Mr. Haynes has difficulty reading, and he is very difficult for him to understand things.

[00:21:01] Speaker 01:
Yeah, but I don't think we're talking about reading.

[00:21:04] Speaker 01:
We're talking about observing.

[00:21:06] Speaker 01:
what fellow workers are doing in the workplace.

[00:21:10] Speaker 03:
Yes.

[00:21:10] Speaker 03:
What he alleged in the complaint and what he reported to us when we filed the complaint was these folks actually needed the electrical license.

[00:21:19] Speaker 03:
Your Honor, one additional quote from Convertino, which I think addresses some of Judge Griffin's questions, is district court should invoke this rule, and that's rule 56F, now 56D, generously holding parties to the spirit rather than to the letter of the law.

[00:21:36] Speaker 03:
And that did not happen here.

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In fact, the argument made by opposing counsel

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it seems to support that position.

[00:21:46] Speaker 03:
They're basically saying the defendant has the right, they hold all the evidence, we can assert a legitimate non-discriminatory reason, and if you can't respond to it, you know, some cases just should not go forward.

[00:22:00] Speaker 01:
And that's just fundamentally unfair to... But that doesn't completely suggest that the Rule 56 request has got to give some indication

[00:22:13] Speaker 01:
that there's some probability of finding something there.

[00:22:18] Speaker 01:
If you take, it seems to be just a blunderbuss,

[00:22:22] Speaker 01:
That truly doesn't qualify.

[00:22:26] Speaker 03:
Your Honor, and that's why we specifically request it in the declaration, information about the electricians.

[00:22:32] Speaker 03:
Tell us how you arrived at, we need the facts on how you arrived at this decision.

[00:22:38] Speaker 01:
Yeah, but that takes you to another category, and that is showing inability to find it on your own.

[00:22:46] Speaker 01:
Well, it does seem to me that 27 years in the same workplace would expose one to information about what the people in the other category were doing.

[00:22:57] Speaker 03:
Expose him to that information, correct, but actually for documentation to support it, no, he does not, he would not have access to, I'm sorry?

[00:23:09] Speaker 01:
We don't even have an assertion by him, an undocumented assertion by him that they were doing electrical work of the same type, right?

[00:23:24] Speaker 03:
Well, Your Honor, I guess that would be responding to the motion for summary judgment, not in a declaration requesting additional discovery.

[00:23:34] Speaker 01:
You know, it asks the affiant to say why it is that he needs discovery.

[00:23:42] Speaker 01:
And I can imagine a request saying we know that from

[00:23:50] Speaker 01:
Mr. Haynes' affidavit that a lot of these people were doing electrical work of the same type.

[00:23:56] Speaker 01:
We know that, but we want to document it properly, and so we want papers from you on that subject.

[00:24:06] Speaker 03:
Your Honor, we believed in submitting the declaration from counsel, we were essentially saying, we have these allegations in the complaint, this is what we need to prove the allegations in the complaint.

[00:24:19] Speaker 03:
We need to know how you arrived at this decision, we need to know.

[00:24:23] Speaker 01:
I think that skips a step that Conpratino specifies.

[00:24:30] Speaker 03:
Your Honor, thank you.