[00:00:02] Speaker 00:
Case number 17-7071, Rhonda L. Davis at L, Stephanie L. Alston at L, Appellants versus District of Columbia.

[00:00:12] Speaker 00:
Ms.

[00:00:12] Speaker 00:
Smith for the Appellants, Ms.

[00:00:13] Speaker 00:
Johnson for the Athlete, District of Columbia.

[00:01:46] Speaker 04:
Thank you and may it please the court, Rachel Smith for plaintiffs.

[00:01:49] Speaker 04:
I'd like to reserve three minutes for rebuttal.

[00:01:54] Speaker 04:
In 2010, defendant fired 115 workers, primarily low paid African American social service workers.

[00:02:05] Speaker 04:
Defendant then replaced many of these workers' jobs with a new position that was substantively the same but required a bachelor's degree, preventing many of them from reapplying to get their old jobs back.

[00:02:18] Speaker 04:
The district court must be reversed because it made multiple clear errors of law.

[00:02:23] Speaker 04:
I would like to address two today, the riff and the degree requirement.

[00:02:28] Speaker 04:
First, with regard to the RIF, the district court should have found that the plaintiffs made out their prima facie case because courts have established that in a Title VII context, a RIF is a particular employment practice, and plaintiffs have offered more than sufficient evidence showing that the RIF had a disparate impact on African Americans.

[00:02:48] Speaker 01:
A RIF is just a group of terminations, right?

[00:02:52] Speaker 01:
Yes, a RIF is.

[00:02:53] Speaker 01:
What would be left of the specific practice requirement if we said a group of terminations is a specific employment practice?

[00:03:03] Speaker 04:
So the Seventh Circuit's decision in Council 31 v. Ward is very helpful here because here CFSA was forced to terminate a number of employees as a result of a severe budgetary shortfall.

[00:03:17] Speaker 04:
Decided to target positions that had.

[00:03:21] Speaker 04:
Council three.

[00:03:26] Speaker 04:
And then in ward.

[00:03:27] Speaker 04:
The Illinois unemployment agency similarly was facing.

[00:03:35] Speaker 04:
budgetary cuts and closed a number of offices and terminated employees in those offices.

[00:03:41] Speaker 04:
And those offices were predominantly in the Chicago area, which meant that those closures had a disproportionate impact on African Americans.

[00:03:49] Speaker 04:
And the Seventh Circuit held

[00:03:51] Speaker 04:
that that single layoff decision was a particular employment practice?

[00:03:56] Speaker 01:
I thought they held not that the riff was the employment practice, but the decision to concentrate the layoffs in offices that were disproportionately African-American.

[00:04:15] Speaker 04:
That's close, but not exactly.

[00:04:17] Speaker 04:
The Seventh Circuit held that the layoff decision was the particular employment practice.

[00:04:26] Speaker 04:
And similarly here, the court could conclude for several reasons that the RIF was a particular employment practice.

[00:04:34] Speaker 05:
Let me back up.

[00:04:35] Speaker 05:
Just define to me what you mean by

[00:04:37] Speaker 05:
Imagine there's a memo that says, uh-oh, that comes from the mayor to the head of this agency and says, uh-oh, budget problems.

[00:04:49] Speaker 05:
You, like every other agency in the city, must reduce staff by 5% through a RIF.

[00:04:57] Speaker 05:
Is that an employment practice that could have a disparate impact?

[00:05:00] Speaker 05:
Yes, the layoff itself.

[00:05:03] Speaker 05:
That doesn't lay any individual off.

[00:05:06] Speaker 05:
That just says 5% have to go.

[00:05:09] Speaker 05:
Nobody knows who those 5% are going to be.

[00:05:12] Speaker 05:
Is that what you're saying is a disparate impact?

[00:05:15] Speaker 05:
Or it seems to me what naturally happens is someone then goes, well, how are we going to pick those 5%?

[00:05:22] Speaker 05:
And they come up with a rule, a variety of rules, a plan of some sort.

[00:05:28] Speaker 05:
And that's the employment practice that may or may not have a disparate impact.

[00:05:32] Speaker 05:
Am I right?

[00:05:34] Speaker 05:
Yes, the layout.

[00:05:34] Speaker 05:
So the riff isn't the problem.

[00:05:36] Speaker 05:
It's the factor that's used to decide.

[00:05:38] Speaker 05:
It's the element or elements that are used to decide who is going to be on the chopping block for the riff.

[00:05:45] Speaker 04:
So following the Supreme Court's decision... I don't want to start a case law yet.

[00:05:50] Speaker 05:
Just tell me, am I right about that, in my understanding?

[00:05:53] Speaker 05:
You're right that the decision to lay off employees... No, not the decision to lay off.

[00:05:58] Speaker 05:
The decision as to which employees get laid off.

[00:06:02] Speaker 05:
That's what I'm asking.

[00:06:03] Speaker 05:
It seems to me that's what can cause a disparate impact.

[00:06:08] Speaker 04:
That is true, although Title VII to identify a practice as the particular employment practice, which is distinguishable, of course.

[00:06:19] Speaker 05:
Well, it has to be the practice that causes the harm.

[00:06:21] Speaker 05:
And the only practice that can cause the harm, in my view, would seem to be the decisional factor that says, who gets laid off?

[00:06:29] Speaker 05:
Now, sometimes a RIF could say, could include, we need to cut by 5%, get rid of all the new hires.

[00:06:38] Speaker 05:
And so then the RIF would include the standard for whose jobs are going to get cut.

[00:06:44] Speaker 05:
And so then you would attack that standard that's included in the RIF itself.

[00:06:48] Speaker 05:
But it's got to be that differentiating standard that says who loses their job that is the relevant employment practice.

[00:06:55] Speaker 04:
Isn't that right?

[00:06:57] Speaker 04:
That is right, although Title VII does allow plaintiffs following Watson to identify a practice because the decision-making underlying that practice may be undisciplined and subjective.

[00:07:11] Speaker 03:
Is that your position that

[00:07:18] Speaker 03:
the way this RIF was implemented was through a group of essentially subjective practices?

[00:07:24] Speaker 04:
Yes, the evidence does show that the decisions as to whom to terminate were made by the director in consultation with other managers, but ultimately the director subjectively made the decisions as to whom to terminate.

[00:07:40] Speaker 04:
And in fact,

[00:07:41] Speaker 04:
The Deputy Director for Administration explained that, quote, no single uniform criteria test or requirement was used in determining whom to lay off.

[00:07:51] Speaker 01:
So before us, you're trying to fit this case within Watson, I assume.

[00:07:55] Speaker 04:
Yes, there are genuine issues of material fact.

[00:07:59] Speaker 01:
But it seems like you took the opposite position below, where you said the RIF was not the result of subjective decision-making.

[00:08:12] Speaker 04:
So that section of the opposition to the motion for summary judgment was explaining that two cases that the defendant had cited, Pickwick and Combs, both of which were ADEA cases in which plaintiffs were laid off on their merits.

[00:08:33] Speaker 04:
Defendant had decided to fire them because they were not performing adequately or they'd become obsolete.

[00:08:40] Speaker 04:
So plaintiffs were attempting to explain that those cases don't apply here, because the plaintiffs were in fact told that the RIF did not reflect on their performance.

[00:08:53] Speaker 04:
It was simply carried out due to the budgetary shortfall.

[00:09:00] Speaker 03:
And I had a question about the way that the plaintiffs framed the claim here, and it's puzzled me.

[00:09:09] Speaker 03:
It seems like the practice here was effectively the combination of terminating 70 odd employees and then at the same time bringing on

[00:09:25] Speaker 03:
40-odd employees.

[00:09:27] Speaker 03:
So there's this notion that, well, we have to cut.

[00:09:30] Speaker 03:
But really, it's a cull and just kind of a shift in the composition of the workforce through the imposition of the college degree requirement.

[00:09:43] Speaker 03:
And I was curious why or whether that is part of why it isn't or if it is.

[00:09:52] Speaker 03:
So what is the target of your?

[00:09:55] Speaker 03:
of your challenge?

[00:09:57] Speaker 04:
The target is the layoff decision, because that was what proximally caused the plaintiffs to lose their jobs.

[00:10:08] Speaker 03:
And defendant originally emphasized- And then separately, you have another claim challenging the college degree requirement in the hiring.

[00:10:17] Speaker 04:
Exactly.

[00:10:21] Speaker 04:
So because plaintiffs have met their prima facie duty to identify the RIF as a particular employment practice.

[00:10:33] Speaker 05:
Just to be clear, I want to make sure we all know what that means, because you're just calling it the RIF doesn't help me for what it's worth.

[00:10:39] Speaker 05:
It may help the others, but not me.

[00:10:42] Speaker 05:
Is your position that what you have shown is that there was a decision to adopt a subjective

[00:10:49] Speaker 05:
ad hoc decision-making process as to how they were going to implement this job reduction, needed job reduction, and is that decision to adopt and allow a subjective ad hoc decision-making process that is the practice you are challenging in this case?

[00:11:06] Speaker 04:
The practice that plaintiffs are challenging is the layoff decision in the way that in Watson, the plaintiffs challenged the promotion.

[00:11:15] Speaker 05:
In that case, you have to decide the practice

[00:11:19] Speaker 05:
that has the disparate impact.

[00:11:22] Speaker 05:
And you're saying just the decision to get rid of 15% or 10% or whatever employees, that is the factor?

[00:11:33] Speaker 05:
So it's an objective factor or is it a subjective factor as to how they said we're gonna meet that target?

[00:11:40] Speaker 05:
You seem to be going back and forth and I really need to understand which one you're relying on.

[00:11:47] Speaker 04:
So because of the nature of the record, because defendants have both explained that they laid the plaintiffs off due to a severe budgetary shortfall, and that they subjectively decided which positions to terminate,

[00:12:05] Speaker 04:
Plaintiffs have two explanations, both of which courts have relied on in Title VII cases, showing that regardless of whether a reasonable jury found that this was simply a facially neutral practice or whether it was an undisciplined and subjective practice, that this does meet the Title VII requirements.

[00:12:27] Speaker 03:
Well, it can be both.

[00:12:29] Speaker 03:
It can be both, right?

[00:12:31] Speaker 03:
It's a facially neutral practice in the sense of we're going to eliminate whatever 5% of positions, and then the criteria that we're going to use in culling those people is a set of subjective decisions.

[00:12:41] Speaker 03:
Yes, it can be both, but a reasonable... And isn't that what you're arguing here?

[00:12:47] Speaker 03:
That it is those two things.

[00:12:49] Speaker 03:
The riff is we're going to laugh up a lot of people.

[00:12:53] Speaker 03:
And rather than saying we're going to do that by reverse seniority, or we're going to do that explicitly by who does and doesn't have a college degree, instead we're going to do it in some sort of hidden amalgam of subjective case-by-case decisions.

[00:13:09] Speaker 03:
I thought that was your position.

[00:13:10] Speaker 04:
Yes, and both fit within

[00:13:18] Speaker 04:
prior precedent that establishes that regardless of how a reasonable jury interpreted the evidence, the riff does meet Title VII.

[00:13:28] Speaker 05:
I don't understand your answer.

[00:13:29] Speaker 05:
The decision to terminate people is a practice with disparate impact.

[00:13:34] Speaker 05:
So what about a company says, we need to hire 10 people.

[00:13:41] Speaker 05:
Can that be disparate impact?

[00:13:42] Speaker 05:
Can you challenge that as having disparate impact?

[00:13:44] Speaker 05:
Or do you have to look at the

[00:13:46] Speaker 05:
the deciding factor they used in deciding whom to hire to challenge the disparate impact.

[00:13:53] Speaker 05:
Is your question... If I said, I'm putting an ad in the Washington Post that says, we plan to hire 10 people, please apply.

[00:14:05] Speaker 05:
Could that ever have a disparate impact?

[00:14:06] Speaker 05:
Just that, just that decision to hire.

[00:14:10] Speaker 05:
No, I don't believe so.

[00:14:11] Speaker 05:
Then how can the decision justify it?

[00:14:13] Speaker 05:
We need to get rid of

[00:14:15] Speaker 05:
How can that have a disparate impact?

[00:14:19] Speaker 04:
Because Title VII exists to prevent employers from

[00:14:28] Speaker 04:
firing or otherwise taking adverse employment actions.

[00:14:33] Speaker 05:
It applies to hiring decisions.

[00:14:35] Speaker 05:
You can't differentiate hiring.

[00:14:37] Speaker 05:
Sure, it definitely applies to hiring decisions, just as much as firing decisions.

[00:14:41] Speaker 04:
Of course, and if the employer used some sort of criteria in the hiring that had an adverse... Bingo, bingo.

[00:14:48] Speaker 05:
And so that seems to me like it's not the decision just, we got to cut somebody.

[00:14:54] Speaker 05:
It is, do they use some criterion or practice?

[00:14:57] Speaker 05:
And that

[00:14:59] Speaker 05:
As I understood it from your argument here, at least, is the subjective ad hoc approach.

[00:15:04] Speaker 05:
That's the target of the disparate impact analysis here.

[00:15:08] Speaker 04:
Yes, that's correct.

[00:15:09] Speaker 04:
As the plaintiffs in Watson did, we were challenging a practice that was carried out in an undisciplined and subjective way.

[00:15:21] Speaker 04:
And moreover, this practice had a clearly disparate impact on African Americans.

[00:15:27] Speaker 04:
The agency fired 18.2% of its African American employees, but just 4% of its white employees.

[00:15:37] Speaker 05:
Now the statistics looked at, treated all positions in this agency as equally subject to termination, but I take it from your brief that you didn't dispute that in fact that was inaccurate because there were certain positions that were never going to be on the chopping block, some that couldn't be as a matter of law as a result of court order or legislative requirement.

[00:15:56] Speaker 05:
Do you dispute that?

[00:16:02] Speaker 04:
Yes.

[00:16:04] Speaker 05:
Your position is everything was equally vulnerable.

[00:16:07] Speaker 04:
Plaintiff's expert did take into account that the 30 employees in the financial division could not be terminated.

[00:16:14] Speaker 04:
More of a defendant.

[00:16:16] Speaker 01:
Are those the ones subject to the consent decree?

[00:16:20] Speaker 04:
The SPAT declaration counted them, but the Davidson declaration later clarified that they were not actually

[00:16:28] Speaker 04:
under the CFSA control.

[00:16:32] Speaker 01:
My understanding is your statistics did not account for the consent decree.

[00:16:38] Speaker 01:
Is that mistaken?

[00:16:40] Speaker 04:
I see that my time has run out.

[00:16:41] Speaker 04:
You can keep going.

[00:16:43] Speaker 04:
So defendant explained that the social workers were effectively precluded from being included in the RIF.

[00:16:56] Speaker 04:
Although Lashon didn't actually prevent social workers from being fired, it did have requirements that social workers not have over a certain number of active investigations.

[00:17:14] Speaker 04:
And it set out a number of timeliness and adequacy requirements for the agency to meet.

[00:17:19] Speaker 05:
So there has to be a number out there of how many investigations on average

[00:17:26] Speaker 05:
DC has each year, so you can compute from that order that there has to be a certain number of social workers.

[00:17:34] Speaker 05:
So it's not really quite right to say that the order does not require a certain number of social workers be in place.

[00:17:43] Speaker 04:
But defendants' explanations... Right?

[00:17:46] Speaker 05:
Right.

[00:17:46] Speaker 05:
The order, unless DC is going to say, we've got no cases this year, there's going to have to be a certain number of social workers that can't be fired.

[00:17:55] Speaker 04:
Yes, although defendant's explanation that social workers couldn't be fired seems to work against it here because the social service assistants and social work assistants who were fired were employees who had been helping the agency meet its timeliness and adequacy goals by... No, but I think the point remains that there were a certain number, that when they said, all right,

[00:18:25] Speaker 05:
Who can be cut?

[00:18:25] Speaker 05:
They had to go, wait a minute.

[00:18:28] Speaker 05:
We have to set aside X number of people.

[00:18:31] Speaker 05:
They can't be touched.

[00:18:33] Speaker 05:
Now let's look at who's left.

[00:18:36] Speaker 04:
Although the question here is that looking at who was fired, the agency targeted almost mainly people in grades seven and eight, which were predominantly African-American.

[00:18:49] Speaker 04:
White employees are predominantly in grade 11 and above.

[00:18:53] Speaker 04:
The question here is why?

[00:18:55] Speaker 05:
So that sounds like the type of practice you could challenge was this was targeting grades 7 and 8.

[00:19:00] Speaker 05:
I didn't understand your brief or at any point for you to be arguing or for your statistics to have shown that the problem here was 7 and 8 was the real standard.

[00:19:13] Speaker 05:
Let's get rid of people in those categories.

[00:19:16] Speaker 05:
for reasons you're suggesting has a racial disparity impact.

[00:19:19] Speaker 05:
But the question here is why.

[00:19:21] Speaker 05:
Have you argued that before?

[00:19:25] Speaker 04:
Plaintiffs, no.

[00:19:26] Speaker 04:
Plaintiffs expert did lay out the statistics as to grades targeted.

[00:19:32] Speaker 04:
The question here is why CFSA fired mainly social service assistants who were helping

[00:19:41] Speaker 04:
on a day-to-day basis going out into the field to meet the Lashon mandates instead of perhaps targeting management or other higher paid positions that were not so integral to meeting Lashon's mandates.

[00:19:58] Speaker 05:
The question in this case is not justifications or rationales.

[00:20:01] Speaker 05:
As I understand it, the case has been divided and we're only talking about whether the showing of disparate impact has been made in the first

[00:20:09] Speaker 05:
instance.

[00:20:10] Speaker 05:
That's correct.

[00:20:11] Speaker 05:
So if your statistical analysis did not take account of positions that were not, how did you meet that burden?

[00:20:20] Speaker 04:
Plaintiffs did actually account for that because as defendant's expert, Dr. Bronars conceded on page

[00:20:32] Speaker 04:
820 of the JA, on some level all positions were considered for the RIF.

[00:20:38] Speaker 04:
Dr. Brunner's later went on to say it was not inappropriate to consider that at some point all positions were considered for the RIF.

[00:20:47] Speaker 04:
The question here is ultimately why CFSA chose to lay off.

[00:20:53] Speaker 03:
So it strikes me that the rationales that Dr. Brunner relies on in

[00:21:02] Speaker 03:
parsing the layoffs into different subgroups goes to the potential justification of the district, which is the second step into which no discovery has been had.

[00:21:16] Speaker 03:
Did you ever object in the district court to the

[00:21:23] Speaker 03:
reaching issues that as to which plaintiffs have yet to have discovery.

[00:21:28] Speaker 03:
Was there any objection?

[00:21:29] Speaker 03:
I mean, I realize it wasn't you actually in the district court, but did counsel for the class in the district court ever make an objection?

[00:21:37] Speaker 03:
You can't decide those questions because

[00:21:42] Speaker 03:
those really go to the way that the employer says it has to structure its workforce, and that's the business justification part of the analysis.

[00:21:51] Speaker 03:
We haven't reached that.

[00:21:55] Speaker 04:
Plaintiffs mainly relied on their own expert, Dr. Monroe's testimony and statements in her reports that it was the only logical approach to

[00:22:12] Speaker 04:
look at the disparate impact that the layoffs had agency-wide.

[00:22:17] Speaker 04:
And it is correct that Dr. Bronar's analysis puts the cart before the horse because it assumes that certain positions had to be laid off and just considers the disparate impact within those positions when the question here is why CFSA laid off those positions.

[00:22:39] Speaker 03:
We haven't talked about the disparate treatment claim, and I know we've kept you up beyond your time.

[00:22:46] Speaker 03:
Judge Muller, I won't give you extra time for rebuttal.

[00:22:48] Speaker 03:
What evidence is there in the record that the bachelor degree requirement had a disparate impact?

[00:22:56] Speaker 03:
And again, I know you've received this case after the record was already built, but there is a problem, isn't there, in terms of whether there's record evidence to support the degree requirement, the challenge to the degree requirement?

[00:23:09] Speaker 04:
Yes, so plaintiffs are relying entirely on statistical evidence and of course this court reviews the grant of summary judgment de novo and thus may take notice of census data and census data here shows that the degree requirement had

[00:23:30] Speaker 04:
a large disparate impact on African Americans because in this area African Americans are over three times less likely to have a bachelor's degree.

[00:23:43] Speaker 04:
The Supreme Court in Griggs held that a high school degree requirement had a disparate impact where African Americans were also three times less likely to have a bachelor's degree.

[00:23:55] Speaker 04:
high school degree.

[00:23:56] Speaker 01:
So there were no statistics put in into the district court record on this point?

[00:24:03] Speaker 04:
No, the census data was introduced.

[00:24:06] Speaker 01:
You're asking us to notice it on appeal?

[00:24:09] Speaker 04:
Yes.

[00:24:11] Speaker 04:
Which federal rule of evidence 201 does make clear this court may do.

[00:24:17] Speaker 03:
You said you're relying only on the statistics for the disparate treatment claim.

[00:24:20] Speaker 03:
Again, why?

[00:24:23] Speaker 04:
So both the Supreme Court and circuits have made clear that in hiring cases, census data is inappropriate.

[00:24:36] Speaker 03:
I see your effort to bolster the claim.

[00:24:38] Speaker 03:
I'm wondering whether, I mean, it seems to me, just looking at this, that the district court, it was really quite an obvious error for the district court to rule on the evidentiary sufficiency of

[00:24:52] Speaker 03:
a disparate treatment claim without ever having permitted discovery on

[00:25:01] Speaker 03:
anything but the threshold showing that there wasn't any discovery allowed on intent, was there?

[00:25:07] Speaker 03:
The only discovery was on the statistics.

[00:25:10] Speaker 04:
That's correct.

[00:25:12] Speaker 05:
Did you ask for more discovery before summary judgment?

[00:25:16] Speaker 05:
Or your predecessor?

[00:25:17] Speaker 05:
Did the clients ask for more discovery before summary judgment, or were they ready to go forward with summary judgment?

[00:25:23] Speaker 04:
This case was referred to the Howard Civil Rights Clinic after the close of discovery.

[00:25:30] Speaker 05:
I just want to know whether the clients ask the district court for more discovery or not before going to some judgment.

[00:25:37] Speaker 05:
Not to my knowledge.

[00:25:38] Speaker 01:
On the treatment claim, were you raising exclusively a pattern and practice claim under Teamsters or were you also trying to raise individual actions?

[00:25:53] Speaker 04:
No, this is a pattern or practice case under teamsters in which the disparate treatment may be inferred from the statistics.

[00:26:05] Speaker 04:
Because plaintiffs have shown that the degree requirement had

[00:26:12] Speaker 04:
a significantly disparate impact on African Americans who might have wished to apply for the FSW position, but for the discriminatory degree requirement they have made out their prima facie claim.

[00:26:29] Speaker 04:
Thank you.

[00:26:43] Speaker 06:
Morning.

[00:26:44] Speaker 06:
May it please the court, Holly Johnson for the District of Columbia.

[00:26:49] Speaker 06:
Isolating a particular employment practice is essential to causation because, as the Supreme Court has repeatedly informed us, it's the only way to establish that the employment practice caused a racial imbalance rather than a myriad of other innocent factors that could cause a racial imbalance.

[00:27:07] Speaker 06:
And indeed, the

[00:27:09] Speaker 06:
Dr. Monroe's analysis was not at all based on the decision to abolish certain positions.

[00:27:17] Speaker 06:
Her analysis was based entirely on the termination rate, the ratio of African Americans separated versus the ratio of Caucasians separated.

[00:27:27] Speaker 06:
So, there is no prima facie case as to the decision to cut the conductor riff.

[00:27:33] Speaker 05:
Now, in this particular riff, why isn't that relevant that African Americans were getting fired at quite a faster clip than Caucasians?

[00:27:47] Speaker 05:
In this case, why isn't that pretty powerful evidence?

[00:27:50] Speaker 05:
If you've got a riff that's agency-wide and

[00:27:53] Speaker 05:
that twice as many African Americans are fired as Caucasians.

[00:27:57] Speaker 05:
Why isn't that relevant evidence?

[00:27:59] Speaker 05:
It might be contested and debated and fought about.

[00:28:01] Speaker 06:
I would never suggest that it's not relevant.

[00:28:03] Speaker 06:
I would suggest that it's not probative because it's not statistically significant.

[00:28:07] Speaker 06:
And so it's hard to separate out sometimes.

[00:28:10] Speaker 06:
the particular employment practice issue and the statistics issue.

[00:28:15] Speaker 06:
But I think it's helpful in these complicated cases to do so.

[00:28:18] Speaker 06:
You've got to.

[00:28:19] Speaker 06:
It's not just helpful.

[00:28:20] Speaker 06:
Otherwise, you can't show causation.

[00:28:22] Speaker 06:
Exactly.

[00:28:23] Speaker 06:
Yes, it's essential.

[00:28:23] Speaker 06:
That's where I was going with that, that it's essential to do that.

[00:28:27] Speaker 05:
But the problem here for them was, you've got to admit, DC was all over the place on what it was that they did for this group.

[00:28:34] Speaker 05:
Well, it was budgets.

[00:28:35] Speaker 05:
Well, it was some realignment.

[00:28:36] Speaker 05:
Well, it was ad hoc.

[00:28:37] Speaker 05:
Well, it was us looking one at a time.

[00:28:39] Speaker 06:
What are they supposed to do?

[00:28:40] Speaker 06:
I have to protest that strenuously.

[00:28:43] Speaker 06:
The record, it was the plaintiff's burden to establish a record.

[00:28:47] Speaker 06:
It was the plaintiff's burden to find out the reasons underlying the riff.

[00:28:50] Speaker 06:
There is nothing in the record suggesting that this was subjective, suggesting that it was undisciplined.

[00:28:56] Speaker 06:
What the record shows is a department was faced with a, I believe, $1.3 million cut it had to make in its personnel budget, and it then

[00:29:05] Speaker 06:
met with all of these different leaders within the agency and they made many different decisions as to how those cuts could be made.

[00:29:13] Speaker 06:
Now, the fact that in the affidavit that was presented by the district at summary judgment doesn't go into grand detail about all of those different decisions that were made, it simply lays out the three service models, does not mean that it's undisciplined.

[00:29:28] Speaker 05:
So I'm on J820.

[00:29:30] Speaker 05:
And this is the answer from DC on, you know, what was it that led to the RIF?

[00:29:37] Speaker 05:
And it was, well, it was based on financial concerns, the reorganization concerns, the realignment of goals, different kinds of service models or the general points that I understand were the factors taken into account.

[00:29:50] Speaker 05:
And that seems to be when you look at the RIF itself, it's got, on GA 330, it's got,

[00:30:00] Speaker 05:
Reengineering of functions, lack of funding and consolidation of positions.

[00:30:07] Speaker 05:
And then we're being told, well, I just pushed it down and people did it individually.

[00:30:10] Speaker 05:
I just don't know how they're looking at this.

[00:30:14] Speaker 05:
fairly significant disparity in termination rates.

[00:30:22] Speaker 05:
But DC's kind of a moving target as to the basis for its decisions.

[00:30:26] Speaker 05:
So what are plaintiffs supposed to do in a case like that?

[00:30:28] Speaker 06:
The plaintiffs are supposed to actually look into the documentation underlying the RIF.

[00:30:32] Speaker 06:
There's no evidence that they did that.

[00:30:34] Speaker 06:
They're supposed to conduct... I'm just telling you what the documents were that I saw.

[00:30:37] Speaker 06:
You got better documents.

[00:30:38] Speaker 06:
Oh, no, no, no.

[00:30:39] Speaker 06:
That document, you're referring to the memorandum requesting authorization to conduct the RIF.

[00:30:43] Speaker 06:
Now, we know that they had to do it to resolve the budget concerns.

[00:30:49] Speaker 06:
And what they decided to do in order to continue to satisfy their court-ordered requirements.

[00:30:54] Speaker 05:
It's not just budget concerns.

[00:30:56] Speaker 05:
It's budgets and internal re-engineering and consolidation of positions.

[00:31:00] Speaker 06:
I apologize.

[00:31:01] Speaker 06:
I didn't mean to interrupt.

[00:31:02] Speaker 06:
The internal re-engineering is part of that process.

[00:31:06] Speaker 06:
What an agency does when an agency is faced with a budget cut, especially an agency like CFSA that has

[00:31:11] Speaker 06:
court-ordered requirements and statutory requirements is they have to decide how are we still going to get the work done.

[00:31:17] Speaker 05:
So what evidence did you put in the record of how many court-ordered and statutorily required positions there were that were just

[00:31:26] Speaker 05:
non-negotiable for purposes of the employment.

[00:31:28] Speaker 05:
I know there's references to it, but I haven't heard, and this could be my fault, I haven't heard what that number is.

[00:31:35] Speaker 06:
The evidence is in the record in the form of the organization chart in conjunction with the Lashon documentation.

[00:31:43] Speaker 06:
So we know, and there's, I introduced... Can you tell me what the number is?

[00:31:48] Speaker 06:
What the number is?

[00:31:49] Speaker 06:
I know, I put the numbers in my brief.

[00:31:51] Speaker 06:
It's 30% of the workforce, and my brief lists the number of case carrying social workers that existed in the agency at the time, and the number of case carrying social worker supervisors.

[00:32:01] Speaker 06:
Those were the ones subject to the Lashon order.

[00:32:04] Speaker 06:
It comes out to 30% of the workforce.

[00:32:06] Speaker 06:
I went through the organization card... That's the Lashon order?

[00:32:08] Speaker 05:
You also said that there were things required by legislation.

[00:32:11] Speaker 06:
Of course.

[00:32:11] Speaker 06:
I mean, the CFSA has functions that it has to perform.

[00:32:18] Speaker 05:
I'm just trying to know what the total number, you can add Lashawn and whatever your legislative requirements are, where in the record is that number of how many employees could not even be considered for termination?

[00:32:28] Speaker 06:
I think where I'm struggling is with the question is that there's sort of an underlying assumption that it was the district's burden of proof to do that.

[00:32:36] Speaker 05:
The district didn't introduce any- You're the ones who keep saying, look, that their statistics were wrong because there were all these positions.

[00:32:44] Speaker 05:
You're attacking their statistics.

[00:32:46] Speaker 05:
This is your argument.

[00:32:47] Speaker 05:
I'm not making it up.

[00:32:48] Speaker 05:
Yes.

[00:32:48] Speaker 05:
That their statistics were wrong because there was X number of positions that were just never susceptible to the layoff.

[00:32:56] Speaker 05:
fairly characterizing your argument on that point?

[00:32:59] Speaker 06:
As for the ones that were absolutely off limits, those are the case carrying social workers and we have provided those numbers.

[00:33:05] Speaker 06:
Otherwise, what we showed was that there were different decisions, different

[00:33:10] Speaker 06:
concrete decisions that went into the decision as to which positions to separate.

[00:33:15] Speaker 05:
That's a different matter.

[00:33:16] Speaker 06:
There are no other positions that were completed.

[00:33:18] Speaker 05:
You said by law and by court order.

[00:33:21] Speaker 05:
So in fact, there's nothing.

[00:33:22] Speaker 05:
The only thing that was taken anything off the table was the Lashon order.

[00:33:26] Speaker 06:
As far as a specific position,

[00:33:28] Speaker 06:
Yes, as far as functions that needed to be performed, and that's in the agency mission statement in the record, it refers to all the functions that needed to be performed.

[00:33:39] Speaker 06:
Now, I don't know that there was any one position that was specifically off limits because of that, and we've never argued that a specific position is.

[00:33:46] Speaker 06:
I'm just going to figure what you said by law and by court order.

[00:33:49] Speaker 06:
By court order, I mean positions.

[00:33:52] Speaker 06:
By law, I mean functions.

[00:33:54] Speaker 06:
I hope that clarifies it because I did not mean to be unclear on that.

[00:33:57] Speaker 05:
The point is that... Most people say we function better if we have less bosses in the way, so how come bosses don't seem to have been on the chopping block here?

[00:34:06] Speaker 05:
Low-level folks.

[00:34:07] Speaker 06:
The case hasn't reached that point and frankly the discovery needed to be conducted by the plaintiffs.

[00:34:12] Speaker 06:
There was no 30b6 deposition that was conducted.

[00:34:15] Speaker 06:
The problem is that the plaintiffs introduced an expert that simply assumed that all the jobs were equal and ignored the evidence that the district did provide that there were different decisions that went into the ultimate decision as to which positions to abolish.

[00:34:32] Speaker 05:
But that just seems to be saying that when they make out their disparate impact case, they have to accept your definition of the practice that caused the disparate impact rather than their own.

[00:34:42] Speaker 06:
Well, they have to conduct discovery and then refer to the decisions that the court that it was undisciplined and subjective when they didn't look into the decisions that were made.

[00:34:51] Speaker 06:
They did not ask how these decisions were made.

[00:34:55] Speaker 06:
They did not ask

[00:34:57] Speaker 06:
who made the decisions and which decisions were made by which managers and how were certain positions put on the block.

[00:35:03] Speaker 06:
And that is critically important to determining what the employment practices were.

[00:35:08] Speaker 06:
And that is the employee's burden.

[00:35:10] Speaker 06:
That is what the Supreme Court has specifically held.

[00:35:12] Speaker 06:
It specifically says, I know this is a heavy burden.

[00:35:15] Speaker 06:
We know that this is a burden on the employees.

[00:35:17] Speaker 06:
but we don't think it's fair to require the employer to come forth and try to explain the racial disparity when it could be based on all of these different factors.

[00:35:27] Speaker 06:
So what I've introduced in the court in my brief is the different things that could have caused the racial disparity that the employees didn't factor in.

[00:35:37] Speaker 03:
But Mr. Johnson, I thought that's where we started about 10 minutes ago with

[00:35:42] Speaker 03:
the answer to Dr. Bronar's, who presumably was using the information that the district provided to structure his rebuttal to Dr. Monroe's testimony, and the answer to the question of what factors would determine whether or not you were being subject to losing the job.

[00:36:03] Speaker 03:
And there were myriad factors given there.

[00:36:09] Speaker 03:
in that answer.

[00:36:11] Speaker 03:
So they did ask what the bases were, the plaintiffs.

[00:36:17] Speaker 06:
No, the only thing that exists in the record as to the bases are the declarations of Portia Usher and the declaration of Davidson that lays out the different decision-making factors that were calculated in.

[00:36:30] Speaker 05:
Why doesn't the deposition we're reading from count as part of that evidence?

[00:36:34] Speaker 06:
The deposition of Dr. Bronar's?

[00:36:37] Speaker 06:
Yes.

[00:36:38] Speaker 06:
Dr. Bronars was an expert testifying on statistics.

[00:36:42] Speaker 06:
He was not a district official, and he did not have personal knowledge of the information.

[00:36:46] Speaker 06:
Well, he's expacing the basis for his statistical analysis.

[00:36:50] Speaker 06:
So someone had to tell him.

[00:36:51] Speaker 06:
He was also basing it on Davidson's declaration.

[00:36:54] Speaker 06:
And I will concede that with Dr. Bronars' analysis, there is some cart before the horse on that.

[00:37:00] Speaker 06:
But that's not the point.

[00:37:00] Speaker 06:
The point is that the employees have to produce statistical evidence of a disparity.

[00:37:04] Speaker 06:
It's not the district's burden to disprove it.

[00:37:07] Speaker 05:
Do you recognize in them that Dr. Bronner's statistics are not particularly helpful?

[00:37:12] Speaker 06:
I think that his testimony or his analysis was very helpful in pointing out the flaws in Dr. Monroe's analysis, but I do not think that he factored in the new service models

[00:37:25] Speaker 06:
or the Lashon factors either.

[00:37:28] Speaker 06:
I would agree with that.

[00:37:29] Speaker 06:
The district is not relying on Dr. Bronar's statistical analysis to establish its right to summary judgment.

[00:37:36] Speaker 06:
It didn't need to introduce any expert testimony at all.

[00:37:39] Speaker 06:
All that matters in this case is that Dr. Monroe conceded that her study's validity rested on her assumption that all jobs were equally at risk.

[00:37:49] Speaker 06:
She conceded that, and all jobs were not equally at risk.

[00:37:52] Speaker 03:
But why, I mean, I asked this question of Ms.

[00:37:55] Speaker 03:
Smith, but maybe it's really more appropriately directed at you.

[00:37:58] Speaker 03:
The district judge bifurcated consideration in the case and wasn't going to go into the question of the district's potential

[00:38:09] Speaker 03:
justifications for any disparate impact.

[00:38:14] Speaker 03:
But it does seem to me that the way Dr. Bronner's is challenging Dr. Monroe's statistics is by saying, well, there were these various job-related reasons why the risk of discharge

[00:38:28] Speaker 03:
were, risks of discharge were different when different subcomponents of the agency.

[00:38:34] Speaker 03:
But that's something that the judge had predominated, I thought, till later.

[00:38:38] Speaker 03:
So there's a way that that's sort of, as you say, getting the car before the horse now.

[00:38:43] Speaker 06:
Both of the experts went on at length.

[00:38:45] Speaker 06:
Well, indeed, I'd say more so Dr. Monroe about her skepticism about the reasons for doing the things the district did.

[00:38:53] Speaker 06:
None of that evidence was

[00:38:55] Speaker 06:
cited or referred to or argued in the briefs, and that's what the attorneys decide to bring forward.

[00:39:04] Speaker 06:
Yes, there was discussion among the experts regarding the justification for the actions, but that's not really been litigated yet.

[00:39:12] Speaker 03:
Well, but the very notion that the fault or the flaw in plaintiff's expert's approach was that it should have been divided up in the way that the district's expert did.

[00:39:25] Speaker 03:
But my point is just that that division itself seems to be a division premised on

[00:39:31] Speaker 03:
various ideas that the district had a legitimate employment-related basis for treating different offices as differently subject to the riff.

[00:39:42] Speaker 03:
And so it just brings forward that territory that the district judge had tried to leave untouched for later.

[00:39:49] Speaker 06:
Yes, I agree.

[00:39:51] Speaker 06:
I agree that it muddied the waters a little bit, but I will note that the attorneys, at least the district's attorneys in arguing this case, were very careful not to step beyond those bounds.

[00:40:00] Speaker 06:
And there's a big difference between isolating a particular employment practice, which is the adoption of these service models, which everyone concedes took place and affected the decision as to which

[00:40:14] Speaker 06:
positions to abolish.

[00:40:15] Speaker 06:
Nobody disputes that.

[00:40:17] Speaker 06:
The employees dispute whether it was necessary, whether it was a good idea, but you can isolate the fact of these decisions and the fact that these realignments affected which positions were abolished, which

[00:40:32] Speaker 06:
in turn, affected the racial composition of the RIF.

[00:40:35] Speaker 06:
You can separate that from the business justification, which the district has never introduced.

[00:40:41] Speaker 06:
The district has not gone into its reasoning.

[00:40:44] Speaker 06:
It has not sought discovery yet on the reasons.

[00:40:48] Speaker 06:
It has not produced discovery yet on the reasons.

[00:40:51] Speaker 03:
If we disagree with the district court that plaintiffs have failed to identify

[00:40:58] Speaker 03:
a practice susceptible of analysis under Title VII, whether because the RIF and the various decision-making criteria through which it was implemented are a specific practice, or because whatever practice the District had was not capable of further separation under the 1991 Civil Rights Act.

[00:41:19] Speaker 03:
If we believe that the District Court was in error in saying

[00:41:24] Speaker 03:
there's not recognizable practice here, then we don't really need to address the question about the statistics.

[00:41:30] Speaker 03:
We would send it back to the district court to do that.

[00:41:32] Speaker 06:
Oh, absolutely not.

[00:41:34] Speaker 06:
I believe that there's two factors here, because that was fully briefed.

[00:41:37] Speaker 06:
The district court didn't reach the question of the validity of the statistics, but that's not a discretionary question at this stage.

[00:41:44] Speaker 06:
It's summary judgment.

[00:41:45] Speaker 06:
It's de novo.

[00:41:46] Speaker 06:
It was fully briefed.

[00:41:47] Speaker 06:
If this court finds that the overall selection of positions for abolishment is a sufficient single employment practice and can be analyzed as such, then it needs to look at Dr. Monroe's analysis and see if it is possible for that to have probative value.

[00:42:02] Speaker 06:
And the Supreme Court and this court have repeatedly held that this is something that can be considered and should be considered at summary judgment.

[00:42:11] Speaker 06:
In Garcia, in 2006, this court held that statistics to be probative, to even satisfy the prime evasion burden, must incorporate key relevant variables.

[00:42:23] Speaker 06:
Those Lashon factors, taking 30% of the workforce out of the equation, that's a key relevant variable.

[00:42:29] Speaker 06:
Her statistical analysis has no validity because she did not consider that factor.

[00:42:35] Speaker 06:
And that's something this court can decide de novo and should consider de novo.

[00:42:39] Speaker 06:
also her failure to consider the retention standing of the employees.

[00:42:43] Speaker 06:
The difference in the disparity, the racial disparity may well have been because once they decided the positions that could have been abolished, the African Americans tended to have a lower retention standing.

[00:42:57] Speaker 06:
That's not something that was within the control of the agency.

[00:43:00] Speaker 06:
That was a legal

[00:43:02] Speaker 06:
requirement that the agency had to comply with.

[00:43:05] Speaker 06:
I have concerns that Dr. Monroe keeps referring to managers as selecting employees for termination.

[00:43:13] Speaker 06:
That's not what happened.

[00:43:14] Speaker 06:
The agency selected positions to abolish and then there's a whole regulatory process that determines which employees will actually be separated.

[00:43:25] Speaker 06:
So the failure to account for those factors

[00:43:29] Speaker 06:
in itself just invalidates her study.

[00:43:32] Speaker 06:
And I think that there are times where it could be a battle of the experts, but this isn't one of them.

[00:43:37] Speaker 06:
Dr. Monroe admitted that her study relied on her assumption that all positions were equally at risk, and the evidence is undisputed that positions were not equally at risk.

[00:43:47] Speaker 06:
And because it's such a large percentage, it takes all probative value out of her statistics.

[00:43:53] Speaker 03:
So this court, how can we factor in the plans?

[00:44:00] Speaker 03:
How can we tell how much that does or doesn't discount the statistics that Dr. Monroe relied on the new service models?

[00:44:12] Speaker 06:
There is some that can be done with the raw numbers that are in the record.

[00:44:16] Speaker 06:
But the point is that the court can't.

[00:44:18] Speaker 06:
It's the plaintiff's job to produce that through an expert analysis, through multiple regression.

[00:44:23] Speaker 06:
And the raw data alone is not going to create a statistically significant number.

[00:44:28] Speaker 06:
And it's the plaintiff's burden to establish that.

[00:44:31] Speaker 05:
You said your brief here mentioned

[00:44:34] Speaker 05:
the 30% social worker positions that had to be retained because of Lashon?

[00:44:40] Speaker 05:
Yes.

[00:44:40] Speaker 05:
Was that in the district court, that number too?

[00:44:43] Speaker 05:
The 30%?

[00:44:43] Speaker 06:
The number is not in the district court, but, you know, Portia publicly referred to the need to comply with Lashon, and Lashon... No, but that's new evidence, so we can't really... You can take judicial notice of what the court orders in Lashon say, and that's... I'm referring to court orders in Lashon, and that's what I'm citing too.

[00:44:59] Speaker 05:
But... Just to be clear, the record doesn't show whether

[00:45:03] Speaker 05:
the failure to factor in the Lashawne decision resulted in a statistically significant error in Dr. Monroe's analysis.

[00:45:12] Speaker 05:
If you don't have the number, you can't show that it may have gone down some, but it has to go down a lot to get past the Forfeits Rule.

[00:45:21] Speaker 06:
If this Court chooses not to take judicial notes, if we're looking just at the record, all we know is that Portia Usher said that that was part of the decision-making process.

[00:45:31] Speaker 06:
No, the numbers are not in the district court.

[00:45:33] Speaker 05:
There needs to be a showing that whatever she omitted was statistically significant.

[00:45:39] Speaker 05:
And if that wasn't established, I mean, the argument is she didn't cover, she made this assumption and in doing so swept in X number of positions that were never on the chopping block.

[00:45:51] Speaker 05:
But if no one ever filled in that blank and said how many positions there were,

[00:45:56] Speaker 05:
and that that number rendered statistically insignificant the disparity she had shown, then it seems to me her statistics taking the evidence in the light most favorable to the plaintiffs would still stand, would it not?

[00:46:09] Speaker 06:
No, I don't think it would, because it's the plaintiff's burden to show that the evidence is statistically significant.

[00:46:15] Speaker 06:
And she herself, Dr. Monroe herself,

[00:46:19] Speaker 06:
acknowledged that she had not taken this into consideration.

[00:46:22] Speaker 05:
I get that, but you could imagine that this someone hadn't taken into consideration was two positions.

[00:46:28] Speaker 05:
Just imagine.

[00:46:29] Speaker 05:
I know that's not true here, but it was two positions out of 800.

[00:46:33] Speaker 05:
Then you go, okay, oops, I didn't take that into account.

[00:46:36] Speaker 05:
It would not take away the statistical significance of the study, correct?

[00:46:42] Speaker 06:
Correct?

[00:46:42] Speaker 06:
I think that's correct.

[00:46:43] Speaker 05:
Although every little error doesn't take away.

[00:46:46] Speaker 05:
I apologize.

[00:46:48] Speaker 05:
I know you're eager to say it.

[00:46:49] Speaker 05:
I know, I apologize.

[00:46:50] Speaker 05:
No, no, no.

[00:46:52] Speaker 05:
We're having a great exchange.

[00:46:53] Speaker 05:
So what's critical then is there had to be some, to take the evidentiary value out of her study, there had to be some showing that what she wrongly included was a statistically significant error.

[00:47:10] Speaker 06:
Well, the district courts, I mean, I agree with you that it's not in the actual, we introduced exhibits.

[00:47:15] Speaker 06:
But we referred to Lashon in our briefing.

[00:47:17] Speaker 06:
We cited Lashon in our briefing.

[00:47:19] Speaker 06:
The district court cited Lashon by docket number.

[00:47:22] Speaker 06:
No, I get that everyone said Lashon, but if we don't know what the number is, I don't know what that tells us.

[00:47:25] Speaker 06:
But the number can be derived from, and that is in the record.

[00:47:29] Speaker 06:
I mean, the number can be derived from the organizational chart.

[00:47:31] Speaker 05:
But it wasn't.

[00:47:31] Speaker 05:
And so taking the fact, taking the fact from the light most favorable to the plaintiffs, how can we assume

[00:47:38] Speaker 05:
that if that math had been done and then we had rerun the statistics, it would be, it would take away, take it out of statistical significant area.

[00:47:46] Speaker 06:
Well, I guess where I push back is on the idea that this specific 30% number needed to be in versus looking at just, if you just look at the Office of Agency Programs.

[00:47:54] Speaker 06:
I mean, that's where this comes out of.

[00:47:55] Speaker 06:
That is the, I keep trying to, struggling to remember the word, the front-running office that provides the front burner services, the Office of Agency Programs, and it is almost entirely consistent

[00:48:06] Speaker 06:
of case carrying social workers and that is plain from the record.

[00:48:10] Speaker 06:
That is in the record.

[00:48:11] Speaker 06:
So, but even if this court struggles with Lashon, then let's look at the numbers that are in the record.

[00:48:18] Speaker 06:
Because there are numbers in the record that are about specific employment decisions that Dr. Monroe acknowledged existed.

[00:48:26] Speaker 06:
but did not calculate into her findings.

[00:48:28] Speaker 06:
She acknowledged that the assistance and associate positions, the ones that were completely eliminated, were 100% likely to be separated.

[00:48:39] Speaker 06:
But she didn't calculate that into her decision.

[00:48:41] Speaker 06:
She thought they were too homogeneous for her to get a statistically significant outcome from that.

[00:48:46] Speaker 06:
And so she didn't calculate that into her decision.

[00:48:47] Speaker 06:
We have those numbers in the record.

[00:48:49] Speaker 06:
We know that those abolishments alone made up for

[00:48:53] Speaker 06:
three quarters, two thirds or three quarters, I forget it, at least two thirds, and we have the numbers in the record, of the people separated.

[00:49:00] Speaker 06:
Two thirds, at least two thirds of the people separated were separated based on an employment decision that is not the same decision as the other decisions regarding abolishment.

[00:49:10] Speaker 06:
The reason why the courts have focused so hard on isolating a particular employment practice and Title VII, even in its amendment, focuses on the plaintiff's ability to look at the elements of the decision-making process.

[00:49:23] Speaker 06:
The reason why is so that an employer is not up here in court trying to defend all of these different things that may be innocent.

[00:49:32] Speaker 06:
The courts have repeatedly- Ms.

[00:49:32] Speaker 03:
Johnson, can I ask you, just shifting gears,

[00:49:35] Speaker 03:
Slightly.

[00:49:37] Speaker 03:
You don't dispute to you that it was error under the Supreme Court's decision in Connecticut v. Steele for the district court to hold that the college degree requirement could not have any disparate impact because of the bottom line racial composition of the people hired.

[00:49:55] Speaker 06:
My dispute is whether that was really what his holding was.

[00:49:59] Speaker 06:
I don't dispute that had that been the holding, that would be error.

[00:50:02] Speaker 06:
Let me make that clear.

[00:50:03] Speaker 06:
Absolutely correct, you cannot do that kind of bottom line reasoning.

[00:50:06] Speaker 06:
But his holding was that the plaintiffs failed to show any statistical disparity.

[00:50:11] Speaker 06:
The plaintiffs in their brief

[00:50:13] Speaker 06:
had two sentences devoted to this issue.

[00:50:15] Speaker 06:
And their entire argument was only a certain number, only 18 of the 150 separated assistants and associates were rehired.

[00:50:24] Speaker 06:
That was their analysis.

[00:50:26] Speaker 06:
So the court said, well, you've offered no evidence of a statistical disparity.

[00:50:30] Speaker 06:
And on top of that, there's no possibility of a racial disparity from what you have introduced

[00:50:35] Speaker 06:
because they were all African-American.

[00:50:37] Speaker 06:
So yes, Judge Pillard, I completely agree that if that was just a straight-up holding, that would be error, but his holding was that there was no statistical analysis, and there was no statistical analysis, and I know my time is up, but I do want to address that because I think it's really important.

[00:50:51] Speaker 06:
I will be brief.

[00:50:52] Speaker 06:
This court held in Seeger that statistics on hiring practices must account for the minimum objective qualifications for the job.

[00:51:02] Speaker 06:
And aside from the degree requirement, the new family support worker position that was created required specialized knowledge in social work and in how child welfare agencies work.

[00:51:13] Speaker 06:
This was so important that if you weren't from within CFSA, you had to have a bachelor's degree in social work.

[00:51:20] Speaker 06:
There is no evidence

[00:51:22] Speaker 06:
even if we accept the census data coming up on appeal for the first time, there's no evidence that the qualified labor pool had a racial disparity between those with a college degree and those without.

[00:51:34] Speaker 03:
What about the people who were actually fired?

[00:51:37] Speaker 03:
I mean, this is the same question that I asked Ms.

[00:51:39] Speaker 03:
Smith.

[00:51:40] Speaker 03:
It strikes me that the district, if you take

[00:51:43] Speaker 03:
as one practice, the laying off of a lot of people as they're bringing up other people on, that one might say that it was a call using a college degree requirement, in which case the relevant pool would be the people who are already working there.

[00:52:02] Speaker 06:
I don't think that that's appropriate in large part because the

[00:52:08] Speaker 06:
College degree requirement is not the same thing as this new position.

[00:52:13] Speaker 06:
The employees are the ones that have decided that the new position is entirely based on the college degree requirement.

[00:52:18] Speaker 06:
That's one of the requirements.

[00:52:20] Speaker 06:
But they were going to create this new position.

[00:52:23] Speaker 06:
the evidence shows that this new position was created based on a new teaming model.

[00:52:27] Speaker 06:
It was a new model of service.

[00:52:28] Speaker 03:
But the evidence also shows that there's a virtually complete overlap between the requirements, the abilities required for the new position and the abilities required for the incumbent employees.

[00:52:41] Speaker 06:
So I want to make sure I'm understanding your question correctly, because this isn't one I think that's come up yet in the briefing.

[00:52:46] Speaker 03:
You're asking what was in the briefing.

[00:52:48] Speaker 03:
Just comparing what you needed to do for the

[00:52:52] Speaker 03:
eliminated position and what you needed to do for the new FWS, I think it was, position.

[00:53:00] Speaker 03:
There was a virtually 100% overlap between the things one needed to be able to do, the functions of those jobs.

[00:53:07] Speaker 06:
That I don't think is in evidence yet.

[00:53:10] Speaker 06:
Oh, yeah.

[00:53:10] Speaker 06:
No, no, no.

[00:53:11] Speaker 06:
The position descriptions are in evidence.

[00:53:13] Speaker 00:
Yes.

[00:53:13] Speaker 06:
And Dr. Monroe's opinion, which should have been saved for phase two of discovery, is also in evidence.

[00:53:19] Speaker 06:
But the reason why the district created the new position, the reason why they thought it was necessary, what the teaming model was, why they did the college degree, that all falls into the necessity side.

[00:53:29] Speaker 06:
The first thing that had to be done was to establish that the creation of that position, replacing a certain number of employees in these two positions with this new position had a disparate racial impact.

[00:53:42] Speaker 06:
I will also note, because I think that this more

[00:53:45] Speaker 06:
quickly answers your question, although I think it's not necessary to answer your question, that if the qualified labor pool was just the people who were already working as assistants and associates, I believe that that's the group that was so homogeneous as to be entirely or almost entirely African American.

[00:54:02] Speaker 06:
So there's no way that there could be within that pool a disparity between those with college degrees, those without college degrees based on race.

[00:54:11] Speaker 06:
And that is essential for statistical analysis.

[00:54:14] Speaker 05:
All right, thank you.

[00:54:15] Speaker 05:
Thank you.

[00:54:20] Speaker 05:
Miss Smith will give you two minutes.

[00:54:23] Speaker 04:
Thank you.

[00:54:29] Speaker 04:
This court is correct that defendants offered many different justifications for the riff.

[00:54:35] Speaker 04:
And there is no evidence that any positions were categorically off limits in a way that would render Dr. Monroe's analysis less probative.

[00:54:51] Speaker 04:
This case is highly analogous to the DDC's decision in McReynolds v. Sodexo, where Sodexo argued that certain objective factors bound managers' hands in deciding whom to promote.

[00:55:08] Speaker 04:
But the evidence showed that, in fact, managers made those decisions entirely subjectively.

[00:55:17] Speaker 04:
And thus, because those decisions were made subjectively, that decision making process was incapable for separation, for analysis, and thus could be considered as one employment practice.

[00:55:31] Speaker 04:
Moreover, to switch gears and address the degree requirement,

[00:55:37] Speaker 04:
My colleague cites Seeger, but that is a promotion case.

[00:55:42] Speaker 04:
And in hiring cases, the Supreme Court has made clear that census data can show a disparate impact.

[00:55:49] Speaker 04:
And in fact, in Hazelwood in footnote 13, the Supreme Court made clear that where a job has requirements that simply are

[00:56:04] Speaker 04:
possessed by many people or fairly readily acquired, the general population is the relevant pool for comparison.

[00:56:13] Speaker 04:
Thus, plaintiffs have shown that the Rift had an overwhelming

[00:56:19] Speaker 04:
impact on low-paid African-American workers and have presented sufficient evidence, both with respect to the RIF and the degree requirement, to make out a prima facie case.

[00:56:31] Speaker 04:
Thus, this case must be reversed and remanded.

[00:56:34] Speaker 04:
Thank you.

[00:56:35] Speaker 04:
Thank you.

[00:56:36] Speaker 04:
The case is submitted.