[00:00:01] Speaker 00:
Good morning, Your Honors.

[00:00:21] Speaker 04:
May it please the Court, unless Alderman, I represent Mr. Yocha, who is here with us in the audience today.

[00:00:29] Speaker 04:
Your Honors, you hear this all the time, that in this case there was too much evidence for summary judgment to be appropriate.

[00:00:39] Speaker 04:
And you'll hear it again today.

[00:00:41] Speaker 04:
There was too much evidence in this case for summary judgment to be appropriate.

[00:00:46] Speaker 04:
In 2012, we have a res judicata decision that Mr. Ioha was removed as help desk manager by the same two supervisors.

[00:00:54] Speaker 04:
who gave false reasons for removing him, false performance-based reasons for removing him.

[00:01:01] Speaker 04:
Those supervisors continued to make statements and comments derogatory about Mr. Eoa's accent from 2011 all the way up to 2014, the year of the first selection.

[00:01:13] Speaker 04:
In addition to that, in addition to the evidence of discriminatory animus, you also have a selection process that was not fairly administered towards Mr. Yoha.

[00:01:25] Speaker 03:
You have the same two super... Isn't the key decision maker here, Ms.

[00:01:30] Speaker 03:
Clark?

[00:01:31] Speaker 03:
Ms.

[00:01:31] Speaker 03:
Clark is one of the key decision makers.

[00:01:33] Speaker 03:
Let's just focus on her.

[00:01:34] Speaker 03:
What's the evidence of discrimination by Ms.

[00:01:38] Speaker 03:
Clark?

[00:01:39] Speaker 04:
Well, Judge Griffith, it's undisputed that Ms.

[00:01:42] Speaker 04:
Clark was involved with Mr. Wiegman in the planning and the effectuation of the first reorganization that removed Mr. Ioha from his help desk position in 2012.

[00:01:53] Speaker 04:
That's undisputed.

[00:01:56] Speaker 04:
Ms.

[00:01:56] Speaker 03:
Clark also joined in... Does that alone preclude her from ever being engaged?

[00:02:02] Speaker 03:
Was there any remedial action that was taken?

[00:02:04] Speaker 03:
There was no remedial action.

[00:02:05] Speaker 03:
So does that preclude her from being involved in the decision-making process later?

[00:02:10] Speaker 04:
What I think it does is that it makes it foolish for the architect not to implement measures that insulate the decision from her discriminatory animus.

[00:02:20] Speaker 03:
What did she do, just focusing on her, what did she do that displayed discriminatory animus in the later selection process?

[00:02:29] Speaker 04:
Even before the selection occurred, she decided that she would not have even interviewed Mr. Iyoha, despite the fact that he had performed most of the duties of the position and received outstandings, commendations from customers.

[00:02:45] Speaker 04:
She said she wouldn't have even interviewed him, and she told that to Mr. Wiegman

[00:02:50] Speaker 04:
who also was on the panel right around the time of the interviews.

[00:02:55] Speaker 04:
Your Honor, there's one mistake that I need to correct on the factual side of things.

[00:03:01] Speaker 04:
In our brief, we said that Ms.

[00:03:03] Speaker 04:
Clark told Mr. Weidman

[00:03:06] Speaker 04:
during both selections that she would not have interviewed Mr. Iyoha, she thought that during both selections.

[00:03:14] Speaker 04:
She only told Mr. Wiegman that on or around the first selection.

[00:03:19] Speaker 04:
She did not repeat it at the second selection.

[00:03:22] Speaker 02:
When you say she thought that, she testified that she thought that?

[00:03:24] Speaker 04:
Yes, Your Honor.

[00:03:25] Speaker 04:
She said, and for the second selection too, I would not have interviewed him except I was required to do so by architect rules.

[00:03:33] Speaker 02:
What do you think about the

[00:03:36] Speaker 02:
Assumption inherent in the question you were asked, was she the only decision maker here?

[00:03:41] Speaker 04:
She was not the only decision maker.

[00:03:43] Speaker 02:
Why not?

[00:03:43] Speaker 04:
Well, she and Mr. Wiegman, at least during the first selection,

[00:03:49] Speaker 04:
both ran that selection, they both had votes in that selection, and Mr. Weedman and she, according to the other panelists, advised the other panelists on the quality of the technical questions.

[00:04:05] Speaker 04:
So they both were able to influence

[00:04:08] Speaker 04:
Yes, on paper it says Ms.

[00:04:12] Speaker 04:
Clark was the selecting official, but the district court ruled that both, actually not just both, all three, Clark, Wiegman, and Hernandez, should be considered deciding officials in this case.

[00:04:27] Speaker 04:
the architect of the Capitol did not cross-appeal, that is part of the law of the case, is that all three are decision makers.

[00:04:37] Speaker 04:
And all three exhibited animus.

[00:04:39] Speaker 04:
Don't forget that Ms.

[00:04:40] Speaker 04:
Hernandez made fun of Mr.

[00:04:42] Speaker 04:
E.O.'

[00:04:42] Speaker 04:
's accent, said she needed a translator, and he said that that was in 2013 and 2014.

[00:04:49] Speaker 04:
Under Morris,

[00:04:50] Speaker 04:
where evidence of discriminatory animus, even if it's two or three years old, is still relevant and powerful.

[00:05:00] Speaker 04:
Ms.

[00:05:00] Speaker 04:
Hernandez's comments are equally powerful in this case.

[00:05:06] Speaker 03:
So how do you distinguish this case from Porter versus Shaw?

[00:05:10] Speaker 03:
In Porter, we said that the fact that there had been a finding of misconduct did not forever disqualify someone from being involved in the selection process.

[00:05:25] Speaker 03:
And in that case, we thought summary judgment was sufficient.

[00:05:29] Speaker 04:
Your Honor, my reading of Porter v. Shaw and the district court decision in Porter is that there was absolutely no dispute that the influence that the deciding official exercised over the selection, there was nothing inappropriate about it.

[00:05:46] Speaker 04:
There was nothing strange or suspicious about it.

[00:05:50] Speaker 04:
The one piece of evidence that was discussed in the case was that the discriminating official

[00:05:57] Speaker 04:
rearrange the position description.

[00:06:00] Speaker 04:
But all of the evidence said that the rearrangement actually made the position description fit what the incumbent would actually be doing.

[00:06:08] Speaker 04:
So the only evidence

[00:06:11] Speaker 04:
that we can discern from those decisions in Porter was the evidence that these discriminatory officials were also involved in a subsequent selection.

[00:06:22] Speaker 04:
And Your Honor, your question about does that mean that she should forever be ineligible to perform selections, I think that's the tough question.

[00:06:30] Speaker 04:
I think it's a very tough question for employers.

[00:06:34] Speaker 04:
But I think the first step for the employer is when your supervisor is found to have discriminated,

[00:06:41] Speaker 04:
take disciplinary action, send them to training.

[00:06:45] Speaker 04:
At least in that case, the architect would have been able to say, here was a moment.

[00:06:50] Speaker 04:
Yes, they were found to have discriminated against.

[00:06:53] Speaker 04:
But we took action.

[00:06:54] Speaker 04:
She was suspended for two weeks.

[00:06:57] Speaker 04:
She went to training.

[00:06:59] Speaker 04:
There's something that the architect could point to to say, here's something that could change her behavior.

[00:07:05] Speaker 04:
In this case, there's none.

[00:07:06] Speaker 04:
In fact, both Weidman and Clark testified that their boss, Dave Ferguson, who was the chief administrative officer, he wasn't even upset with them.

[00:07:17] Speaker 04:
So not only that, Ms.

[00:07:19] Speaker 04:
Clark gets promoted shortly after the discriminatory reorganization, and there are thousands of dollars paid to both of them in performance awards.

[00:07:30] Speaker 04:
So not only did the architect not take any action against them,

[00:07:34] Speaker 04:
They promoted and paid them thousands and thousands of dollars in bonuses.

[00:07:39] Speaker 04:
So they endorsed the discriminatory action.

[00:07:41] Speaker 03:
So your argument is your case is more like Salazar, right?

[00:07:46] Speaker 03:
But aren't there some significant differences between this case and Salazar?

[00:07:51] Speaker 03:
In Salazar, there was this

[00:07:53] Speaker 03:
fishiness, there was this furtive moving of decision makers, behind the scenes actions.

[00:08:01] Speaker 03:
We don't have any of that here.

[00:08:02] Speaker 03:
We've got these scorers that are objectively, seem to be objectively entered and seem to be pretty consistent and they don't cut in your client's favor.

[00:08:12] Speaker 04:
Well, I would say that there is no substantial difference between Salazar and this case.

[00:08:18] Speaker 04:
I mean, the key thing in Salazar is that someone who discriminated against Salazar in the past

[00:08:24] Speaker 04:
was basically in charge.

[00:08:26] Speaker 03:
Well, it was also that there was a promise that he wouldn't be, and we don't have anything like that.

[00:08:31] Speaker 03:
There was a broken promise, and that was really important in Salazar.

[00:08:35] Speaker 04:
If I were a judge, I wouldn't think that the broken promise was the important thing.

[00:08:39] Speaker 04:
The courts that looked at it thought it was important.

[00:08:42] Speaker 04:
Because that was a fact in the case, and we don't have that fact in this case.

[00:08:46] Speaker 04:
But in terms of suspicious occurrences, in this selection, in both of these selections, you have- I think the technical term is fishy.

[00:08:55] Speaker 04:
Fishy, actually.

[00:08:56] Speaker 04:
Yeah, fishy.

[00:08:57] Speaker 04:
Fishy occurrences.

[00:08:58] Speaker 04:
You have Ms.

[00:08:59] Speaker 04:
Clark, who says she never would have even interviewed him.

[00:09:02] Speaker 04:
She then picks the panel.

[00:09:04] Speaker 04:
On the first selection, three out of the four panelists are people who have made derogatory comments, either about Mr. Yocha specifically or about people with accents.

[00:09:14] Speaker 04:
Then there's the questions.

[00:09:16] Speaker 04:
the interview questions studiously avoid anything about help desk, anything about inventory management.

[00:09:23] Speaker 04:
I mean, how hard would it be to ask the question, what's your help desk experience?

[00:09:28] Speaker 04:
How do you approach managing a help desk when Clark admits that managing the help desk was one of the key functions of this job?

[00:09:35] Speaker 04:
So just like in Salazar.

[00:09:37] Speaker 04:
That's kidding.

[00:09:39] Speaker 03:
That's getting us way into the details of a job interview, and we've been cautious about that unless there's something really a sign of direct evidence of bias.

[00:09:50] Speaker 04:
Your Honor, there is direct evidence of bias.

[00:09:52] Speaker 03:
To simply, to neglect to ask about your help desk experience?

[00:09:57] Speaker 03:
Well, it is the key.

[00:09:58] Speaker 03:
You wasn't interviewing for a help desk job.

[00:10:00] Speaker 04:
Actually, Your Honor, Ms.

[00:10:01] Speaker 04:
Clark testified that managing the help desk, being the second level of fixer, and managing assets and IT inventory were key functions of the job.

[00:10:15] Speaker 04:
And she avoided questions on all three fronts.

[00:10:19] Speaker 04:
Then when you get into the analysis of the scoring, well, first, there's a dispute of fact over whether Clark and Wigman influenced the other panelists.

[00:10:29] Speaker 04:
You have panelists that say that they did.

[00:10:33] Speaker 04:
You have other panelists that say that they didn't.

[00:10:35] Speaker 04:
That's a dispute of fact.

[00:10:37] Speaker 04:
And Mr. Wigman definitely says, someone asked if that was a baloney answer.

[00:10:44] Speaker 04:
And if you take a look at Ms.

[00:10:45] Speaker 04:
Hernandez's score sheet where she tallied everything up,

[00:10:50] Speaker 04:
her response under Mr. Yoha's weakness was, technical answers didn't make sense.

[00:10:56] Speaker 04:
That ties the baloney answer comment to Mr. Wiegman's advice during the interviews.

[00:11:07] Speaker 04:
Other fishiness.

[00:11:08] Speaker 04:
At least when you get to the second selection, this surprise second round of interviews, Mr. Lewis says there was no discussion of a second round of interviews,

[00:11:20] Speaker 04:
It only happened after we identified who the top scorers were.

[00:11:23] Speaker 04:
One of those top scorers was a Hispanic who spoke with an accent.

[00:11:28] Speaker 04:
And there's this mysterious second round of interviews that then pops up.

[00:11:32] Speaker 04:
And there's all kind of fuzzy testimony about this second round of interviews.

[00:11:37] Speaker 04:
Ms.

[00:11:38] Speaker 04:
Clark says she was the sole decision maker, that it really didn't matter who gave the best answers.

[00:11:43] Speaker 04:
She didn't grade anybody's answers, and there was no real discussion about who the best candidate was.

[00:11:47] Speaker 03:
Mr. Whitman, on the other hand... But they ended up hiring people who spoke with that for an access.

[00:11:53] Speaker 04:
That's right.

[00:11:54] Speaker 04:
But look at the big picture.

[00:11:56] Speaker 04:
And again, we have to remember, we have to look at all of the evidence all together.

[00:12:00] Speaker 04:
But the big picture, the ultimate selectee, the one who stayed, was an American guy who spoke with no accent.

[00:12:08] Speaker 04:
That's what happened in the big picture.

[00:12:11] Speaker 04:
Mr. Singh was there for a few months.

[00:12:12] Speaker 03:
So your theory that Singh was just a setup, that was just a cover for mysterious bias, I guess.

[00:12:19] Speaker 04:
Singh was either a plan,

[00:12:23] Speaker 04:
Or it was a situation that they couldn't do anything about because he scored very well on the technical answers that they asked him.

[00:12:30] Speaker 04:
But the important thing with Singh, I think there's two.

[00:12:35] Speaker 04:
One, the weaknesses for which they terminated Singh are documented in their interview score sheets.

[00:12:44] Speaker 04:
I mean, they said they needed a strong manager who could handle problem employees.

[00:12:52] Speaker 04:
And the notes from the interviews say that he's a weak manager.

[00:12:55] Speaker 04:
He doesn't have management experience.

[00:12:58] Speaker 04:
They also said that they needed someone who was an expert in Microsoft technologies.

[00:13:06] Speaker 04:
And Ms.

[00:13:07] Speaker 04:
Hernandez's score sheet at least says weak in management and in Microsoft.

[00:13:13] Speaker 04:
So his weaknesses are actually there from the get-go.

[00:13:17] Speaker 04:
And then Miss Clark misrepresented the facts about his termination.

[00:13:24] Speaker 04:
She said in sworn interrogatories and in her deposition that she did not propose Singh's termination.

[00:13:33] Speaker 04:
But Singh's declaration and the paperwork that Miss Clark submitted clearly contradict that and under Reeves,

[00:13:43] Speaker 04:
That contradiction, a false statement about a material fact in the case, could lead a jury to conclude that the real reason was discrimination.

[00:13:53] Speaker 04:
And Judge Walton

[00:13:56] Speaker 04:
essentially said there's no evidence that she was not being truthful.

[00:14:01] Speaker 04:
Well, Mr. Singh's declaration puts a fine point.

[00:14:06] Speaker 04:
He says, she told me that she proposed my termination.

[00:14:10] Speaker 04:
I checked with human resources.

[00:14:11] Speaker 04:
They told me that the paperwork had been submitted.

[00:14:14] Speaker 04:
And then after I resigned, they told me that the paperwork had been withdrawn.

[00:14:19] Speaker 04:
So she clearly either she proposed the termination formally,

[00:14:25] Speaker 04:
or she was telling a huge half-truth about the termination.

[00:14:30] Speaker 04:
In either way, a jury could conclude that she was trying to hide her discriminatory or retaliatory animus.

[00:14:38] Speaker 04:
And, Your Honors, I think, unfortunately, in the cases, in the decision, the retaliation aspect doesn't get enough attention.

[00:14:46] Speaker 04:
Even if you conclude that saying hurts the discrimination case, it doesn't do anything with the retaliation case.

[00:14:55] Speaker 04:
There's no question that Singh ever participated in protected activity.

[00:15:00] Speaker 04:
There's no question that the ultimate selectee, he never engaged in protected activity.

[00:15:06] Speaker 04:
And Clark's statement, I wouldn't have even interviewed him despite his past good performance doing the key functions of the job.

[00:15:15] Speaker 04:
A jury could easily interpret that as retaliatory animus.

[00:15:19] Speaker 04:
With that, I see I've run out of my time.

[00:15:22] Speaker 02:
You don't have any of what you've described as direct.

[00:15:25] Speaker 02:
Put aside whether it's really direct evidence about retaliation and the way you have about discrimination.

[00:15:32] Speaker 02:
There's no statements about it.

[00:15:36] Speaker 04:
I think there's strong circumstantial evidence of the retaliatory intent.

[00:15:40] Speaker 04:
You know, the question mark that Ms.

[00:15:42] Speaker 04:
Clark puts for his strengths, and she says that was a deliberate choice, the testimony that she would not have even interviewed him despite the fact that he got outstandings when he did this job.

[00:15:52] Speaker 04:
I mean, these a jury could certainly conclude or exhibit retaliatory animus.

[00:15:58] Speaker 04:
then add all the other pretext evidence combined with that.

[00:16:01] Speaker 04:
It's certainly a strong retaliation case, but it's not direct evidence of retaliation, as I believe that we do have the direct evidence of discrimination.

[00:16:12] Speaker 02:
OK, thank you.

[00:16:13] Speaker 02:
Further questions from the bench?

[00:16:15] Speaker 04:
Thank you.

[00:16:15] Speaker 04:
Thank you, honor.

[00:16:28] Speaker 01:
Good morning, and may it please the Court.

[00:16:30] Speaker 01:
My name is Johnny Walker on behalf of the Architect of the Capitol.

[00:16:33] Speaker 01:
Your Honor, to get past summary judgment, Mr. Ioha must present some evidence that national origin or retaliatory bias actually played a role in the specific selections at issue in this case.

[00:16:46] Speaker 03:
It played a role in the 2012 administrative proceeding, right?

[00:16:52] Speaker 01:
That's his position, Your Honor, and to state that position, he relies entirely on this race judicata evidence.

[00:17:00] Speaker 03:
Now there's... Let's just go back to the 2012 proceeding, that the administrative proceeding found that there was bias, right?

[00:17:07] Speaker 01:
A hearing officer in the Architects Office of Compliance did find that Mr. Ioha's reassignment was discriminatory, yes.

[00:17:16] Speaker 02:
Based on national origin.

[00:17:18] Speaker 01:
Based on national origin, yes.

[00:17:20] Speaker 02:
And so did the board on appeal.

[00:17:22] Speaker 01:
The board affirmed that decision.

[00:17:25] Speaker 03:
Now, why shouldn't that affect the way we look at what happens in 2014 and 2015?

[00:17:33] Speaker 01:
Well, your honor brought up Porter versus Shaw, and Porter versus Shaw is directly on point here.

[00:17:37] Speaker 01:
In Porter versus Shaw, this court specifically held that the involvement of an official that's previously found to have been, this was in the retaliation context, that an official who was previously found by a federal jury

[00:17:49] Speaker 01:
to have been guilty of retaliation.

[00:17:52] Speaker 01:
The mere fact that they were involved in a later selection process did not indicate that that selection process... But that's not this case.

[00:17:59] Speaker 03:
We have conduct after 2012 in this case showing a continuing bias, right?

[00:18:07] Speaker 01:
I don't think the conduct does show continuing bias, Your Honor.

[00:18:10] Speaker 03:
I think there are... Making fun of his accent and commenting that Siri could even translate him?

[00:18:17] Speaker 01:
That's not a show of... I don't think that Mr. Wiegman's comment

[00:18:22] Speaker 01:
that his voice recognition software was able to understand Mr. Yoha's accent was at all derogatory towards Mr. Yoha or his national origin.

[00:18:32] Speaker 01:
You don't, you don't.

[00:18:33] Speaker 01:
It's complimentary about the voice recognition software, but I don't think it is derogatory towards Mr. Yoha.

[00:18:40] Speaker 03:
Shouldn't a jury decide that?

[00:18:41] Speaker 01:
I don't think so, Your Honor, because I don't think there's any reasonable question to it.

[00:18:45] Speaker 01:
And even if there is a reasonable... Wait a second.

[00:18:47] Speaker 03:
You're saying there's no reasonable question that when Mr. Wigeland said, wow, Siri can even translate you, you don't think there's any reasonable inference that could be drawn from that, that that showed some continuing bias by a man who had already been adjudicated to have bias in this area?

[00:19:08] Speaker 03:
That's just not reasonable?

[00:19:10] Speaker 01:
I don't believe so, Your Honor, and I don't think the record reflects that Mr. Wigley said it quite that way, but even if it is, Your Honor... How did he say it?

[00:19:16] Speaker 03:
I'm sorry, I didn't mean it in this way.

[00:19:18] Speaker 01:
There's no direct quote in the evidence, but there's an indication that he marveled that his Siri voice recognition software was able to understand Mr. Yoha's speech despite his foreign accent.

[00:19:29] Speaker 03:
And you're saying that the only inference that a jury could draw from that is that he was congratulating Siri for a great technical advancement.

[00:19:37] Speaker 01:
I believe so, Your Honor.

[00:19:38] Speaker 01:
I think that's the only reasonable inference.

[00:19:40] Speaker 01:
But even if you can infer some animus from that statement, which was made several months before the selection process here, the question is,

[00:19:48] Speaker 01:
whether or not that animus entered into the selection processes in 2014 and 2015.

[00:19:53] Speaker 01:
Now, that's established by Morris.

[00:19:56] Speaker 01:
In Morris, you had a number, Morris versus McCarthy, there were a number of statements by officials, far more animus driven than what's here.

[00:20:03] Speaker 03:
I don't understand.

[00:20:04] Speaker 03:
After Salazar, why would any manager at the AOC allow Mr. Wigman to be involved in the selection process?

[00:20:13] Speaker 03:
That just doesn't make any sense to me.

[00:20:15] Speaker 03:
You have somebody who's been adjudicated biased with this problem, national origin discrimination.

[00:20:23] Speaker 03:
Why should he be allowed to be involved in a selection process that involves the very person who he was found to be biased against?

[00:20:32] Speaker 03:
And after Salazar, that suggests there's a taint.

[00:20:35] Speaker 03:
It's not on all fours exactly.

[00:20:39] Speaker 03:
It's a different fact pattern.

[00:20:40] Speaker 03:
But if I'm the attorney,

[00:20:43] Speaker 03:
Counseling my client in the wake of Salazar, I'm not going to let them put someone who's been adjudicated biased involved in the process.

[00:20:52] Speaker 01:
Well, as Your Honor says, Salazar does not explicitly prohibit an official previously found to have been driven by bias and determination from participating in a later selection.

[00:21:03] Speaker 01:
In fact, Porter specifically says that they are not so prohibited, that it does not

[00:21:08] Speaker 01:
entail an automatic inference that that later selection was driven by bias.

[00:21:13] Speaker 01:
There are two important facts about Porter.

[00:21:16] Speaker 01:
The only distinction that Mr. Yohas' counsel was able to draw from Porter is that there was nothing inherently suspicious or fishy about the influence that was supposedly exhibited by the former retaliating officials in that case.

[00:21:31] Speaker 01:
The same thing is true of this case.

[00:21:33] Speaker 01:
There's nothing inherently improper

[00:21:36] Speaker 01:
about Mr. Wiegman's and Ms.

[00:21:37] Speaker 01:
Clark's involvement or participation or the way that they conducted these selections.

[00:21:42] Speaker 01:
They were conducted extremely by the book and there was nothing improper about them.

[00:21:46] Speaker 01:
Other distinctions from Porter, one is that that case involved a jury finding, a federal jury finding.

[00:21:53] Speaker 01:
And that is included to preclusive effect in later litigation.

[00:21:58] Speaker 01:
Mr. Ioha claims that the decision of the hearing officer in this case is entitled to preclusive effect in later litigation.

[00:22:04] Speaker 01:
And there are a number of reasons why the court should not follow that.

[00:22:07] Speaker 02:
Can I ask about that?

[00:22:07] Speaker 02:
Why does that make any difference?

[00:22:09] Speaker 02:
In Scott, we said prior administrative findings made with respect to unemployment discrimination claim may, of course, be admitted as evidence.

[00:22:17] Speaker 02:
at a federal sector trial de novo.

[00:22:20] Speaker 02:
So who cares whether it's race due to CADA because right now we're on the question of summary judgment.

[00:22:27] Speaker 02:
And it's evidence that we have a prior finding both by the examiner and the board that there was discrimination on the basis of race.

[00:22:38] Speaker 02:
That's it.

[00:22:40] Speaker 01:
It matters, Your Honor, because it's really not a race judicata issue.

[00:22:43] Speaker 01:
It's more of a collateral estoppel or issue.

[00:22:45] Speaker 02:
I'm not asking why it's even collateral estoppel.

[00:22:47] Speaker 02:
As long as it's evidence.

[00:22:49] Speaker 02:
As long as it's evidence that could go before a jury.

[00:22:53] Speaker 02:
What's the difference?

[00:22:54] Speaker 02:
The question is what happened in

[00:22:57] Speaker 02:
in that first transfer away from the help desk, right?

[00:23:01] Speaker 02:
And there is a finding of discrimination on the basis of natural origin, which is evidence and can go before a jury, which means a reasonable jury could believe whatever it could believe from that, regardless of whether it was preclusive or not.

[00:23:15] Speaker 01:
It matters, Your Honor, because Mr. Yocha relies on a number of findings from the hearing officer concerning testimony provided by Ms.

[00:23:24] Speaker 01:
Clark, concerning the ultimate determination that there was national origin discrimination that occurred in respect to the assignment.

[00:23:30] Speaker 02:
Can we just pass again on what I just said?

[00:23:33] Speaker 02:
The ultimate finding on national origin discrimination goes before the jury according to Scott, correct?

[00:23:40] Speaker 01:
Well, I think it depends, Your Honor.

[00:23:42] Speaker 01:
If it's preclusive, it means that plaintiff does not have to prove it in this case, and if it's not, he does.

[00:23:47] Speaker 02:
No, that's not what we said.

[00:23:48] Speaker 02:
We said prior administrative, and this is pursuant to Federal Rule of Evidence 803-HC, prior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal sector to no-voke trial.

[00:24:04] Speaker 02:
That's our decision in Scott, quoting the Supreme Court's decision in Chandler, quoting the Federal Rules of Evidence.

[00:24:10] Speaker 01:
I think the question, Your Honor, is evidence of what?

[00:24:13] Speaker 02:
Evidence of discrimination on the basis of national origin in that first proceeding.

[00:24:21] Speaker 02:
Not with respect to the current proceeding.

[00:24:23] Speaker 02:
He can't claim that, and he's not claiming that.

[00:24:26] Speaker 01:
I think, Your Honor, that it cannot be admitted for evidence based on the findings of the hearing officer, because there is case law holding.

[00:24:35] Speaker 02:
I'm citing a Supreme Court case, our case, and 803.

[00:24:40] Speaker 02:
Now give me a higher set of standard of cases than that.

[00:24:44] Speaker 02:
I stand for the proposition that a prior administrative finding made with respect to an employment discrimination claim, you find one that says it cannot be put in evidence.

[00:24:55] Speaker 02:
That would require an overruling of both our decision and the Supreme Court's decision in Chandler.

[00:25:00] Speaker 01:
That same Supreme Court decision in Chandler has been relied on by multiple other circuits to hold that in the employment discrimination context, in the federal employment discrimination context, administrative findings are not entitled to preclusive effect.

[00:25:16] Speaker 02:
I don't know why you're dying on this hill.

[00:25:18] Speaker 02:
This seems like the wrong hill to die on.

[00:25:20] Speaker 02:
I'm not arguing or asking about preclusive effect.

[00:25:23] Speaker 02:
I'm asking about whether it is evidence that goes before the jury.

[00:25:28] Speaker 01:
I'll accept that, Your Honor.

[00:25:28] Speaker 01:
Say that it is evidence that the actual retaliation occurred, that the hearing officer's decision can show

[00:25:35] Speaker 01:
It's evidence, it's not preclusive, so other evidence can certainly be entered contradicting that.

[00:25:43] Speaker 02:
But when there's a dispute about evidence, at least on that point, summary judgment on that point would not be appropriate, correct?

[00:25:52] Speaker 01:
Understood, John.

[00:25:52] Speaker 01:
So assuming that plaintiff has evidence that could show that there was retaliation in the 2012 reassignment, you go back to Porter.

[00:26:00] Speaker 01:
That discrimination alone, assuming that it's correct, does not preclude either Mr. Wigman or Ms.

[00:26:07] Speaker 01:
Clark from participating in the selections in 2014 and 2015.

[00:26:10] Speaker 01:
Now Porter involved three selections.

[00:26:13] Speaker 01:
With respect to two of those selections where

[00:26:16] Speaker 01:
employees formerly found to have either retaliated or to have been involved in retaliation, remarkably similar to what Mr. Yocha claims here, the court held that the mere involvement of those officials was insufficient to give rise to an inference of retaliation in the challenged selections.

[00:26:32] Speaker 01:
The third selection,

[00:26:33] Speaker 01:
the court where the court did hold that there was a reasonable inference of retaliation, the court looked at the selection itself and it found with respect to that third selection that the plaintiff was substantially more qualified than the selectee because the position description in that case required a bachelor's degree and the

[00:26:53] Speaker 01:
The plaintiff in that case had a master's and the selectee had no degree whatsoever.

[00:26:57] Speaker 01:
Now you have no similar argument here and certainly no evidence here that Mr. Yocha was substantially more qualified than the selectees in this case, both of whom I note bear the same protected class that he is claiming.

[00:27:09] Speaker 01:
But there is no evidence that he is substantially more qualified than them and in fact he has specifically declined to make an argument that he is substantially better qualified than them.

[00:27:22] Speaker 02:
Can I just ask on this question of whether the testing interviews that sent her were unassailable?

[00:27:33] Speaker 02:
What about Clark's point that she did not have to pick the person with high scores, high scores didn't matter, all that?

[00:27:41] Speaker 01:
That's true.

[00:27:41] Speaker 01:
Miss Clark could have picked whomever she wanted to.

[00:27:45] Speaker 01:
She was the siding official.

[00:27:46] Speaker 01:
The method of selecting the candidate that she chose to go about was to convene a panel of a combination of subject matter experts and customers of the relevant branch, which is in keeping with the AOC rules, to have each of those interview panelists ask the same questions of every candidate, questions that were tailored to the job specifications required of the relevant position,

[00:28:09] Speaker 01:
to have each of those independent panelists score the candidates, to tabulate those scores, and then to select the person who achieved the highest scores.

[00:28:18] Speaker 01:
And that was the first round in 2014.

[00:28:21] Speaker 01:
In the 2015 round, she chose to have the top three go on to a second interview round with the first, second, and third level supervisors, and then to follow that with a discussion and then a selection.

[00:28:32] Speaker 01:
So while Ms.

[00:28:34] Speaker 01:
Clark could have picked anyone she liked, this was the method that she chose to go about, and the method worked.

[00:28:41] Speaker 01:
In the first round selection, Mr. Tseng, an individual with a foreign accent.

[00:28:46] Speaker 01:
received the top scores from everyone, including Ms.

[00:28:49] Speaker 01:
Clark and Mr. Wigman and Ms.

[00:28:51] Speaker 01:
Fernandez, all of whom Mr. Yoha claims of having a bias against individuals based on their foreign accent.

[00:28:57] Speaker 01:
And in the second round, there was near unanimity with respect to the top three except for one deviation.

[00:29:04] Speaker 01:
And that individual later concurred that the top three were in keeping with all the other panelists' scores and agreed to send those along.

[00:29:12] Speaker 01:
Now, importantly, in the second round selection,

[00:29:15] Speaker 01:
The candidate with foreign accent who we identified as AM was rated in the top three by every single candidate, including Ms.

[00:29:21] Speaker 01:
Clark, who Mr. Yoho accuses of foreign accent discrimination.

[00:29:24] Speaker 01:
She rated him second.

[00:29:26] Speaker 01:
Now, he says that Ms.

[00:29:27] Speaker 01:
Clark had some sort of elaborate plan.

[00:29:29] Speaker 01:
that she later instituted when she discovered that AEM was in the top three.

[00:29:33] Speaker 01:
She instituted some elaborate plan to somehow block him from being hired.

[00:29:38] Speaker 01:
That does not comport with the fact that Mr. and Ms.

[00:29:40] Speaker 01:
Clark rated him second overall of all the other candidates.

[00:29:44] Speaker 01:
If she sought to block him, it does not stand to reason that she would rate him as the second overall candidate during the first round interviews.

[00:29:51] Speaker 02:
When you said it's carefully tailored to the job, what do you say in response to opposing counsel's argument that several elements of the job were not asked about, namely the management of the help desk, even at the second or third level, inventory, IT inventory, etc.?

[00:30:06] Speaker ?:
?

[00:30:06] Speaker 01:
A few things.

[00:30:09] Speaker 01:
If you look at the interview questions, Ms.

[00:30:10] Speaker 01:
Clark has consistently testified and said to the other interview panelists that the key aspects of this job were supervisory experience and technical expertise.

[00:30:20] Speaker 01:
Now, the position Mr. Ioha characterizes it as having some sort of management responsibilities for the help desk.

[00:30:27] Speaker 01:
In fact, this was the supervising position for the position that Mr. Ioha previously occupied, which he characterized as the help desk manager.

[00:30:36] Speaker 01:
So while the branch chief position had some overarching authority over the help desk, it certainly was not directly involved day to day in help desk issues or directly managing the help desk.

[00:30:49] Speaker 01:
The record shows that was done by a contractor.

[00:30:51] Speaker 01:
There was a contractor who had, a contractor was assigned to be the help desk manager and there was a different federal employee who oversaw that contract.

[00:31:00] Speaker 01:
There were, on occasion,

[00:31:01] Speaker 01:
issues that would rise to the level of branch chief, issues that would be escalated past the help desk for resolution by the branch chief, but it wasn't certainly a regular duty.

[00:31:11] Speaker 01:
And the record also shows that if Mr. Ioha wanted to talk about his excellent experience in help desk management

[00:31:18] Speaker 01:
and asset inventory control.

[00:31:21] Speaker 01:
He could have done that in response to any number of these questions.

[00:31:24] Speaker 01:
He was not precluded in any way from doing that.

[00:31:26] Speaker 01:
There were a number of questions that asked about troubleshooting, perhaps precisely what helped us does, troubleshoots.

[00:31:32] Speaker 01:
And there were questions asking about experience in troubleshooting.

[00:31:35] Speaker 01:
Mr. Yochov is not precluded in any way from bringing his experiences to the attention of the interview panel.

[00:31:40] Speaker 01:
And there was certainly no evidence that there was any intent to block him from doing so.

[00:31:47] Speaker 01:
Thank you.

[00:31:50] Speaker 01:
We ask that the Court affirm the decision of the District Court.

[00:31:53] Speaker 01:
Thank you.

[00:32:01] Speaker 04:
Thank you, Your Honor.

[00:32:03] Speaker 04:
Your Honor, we would submit that there are important differences between this case and Porter v. Shaw.

[00:32:07] Speaker 04:
You've got Ms.

[00:32:09] Speaker 04:
Clark's statement that she wouldn't have even interviewed Mr. Yoha.

[00:32:13] Speaker 04:
You have three of the four panelists who had made discriminatory or derogatory statement.

[00:32:18] Speaker 04:
against people with accents.

[00:32:20] Speaker 04:
You've got avoiding questions about the key factors of the position, and if you read the record, it's on page 928 of the record.

[00:32:28] Speaker 04:
That's where she explains what the primary duties of the position are.

[00:32:32] Speaker 04:
Now, sure, he could have, Mr. Ioha could have inserted

[00:32:36] Speaker 04:
information about his help desk experience on a question that wasn't really related to help desk and that would have been a non sequitur and he would have gotten a bad grade on that question too.

[00:32:46] Speaker 04:
When he was given the opportunity in the elevator speech question about which there's a dispute whether that had a discriminatory impact, he did talk about his customer service experience,

[00:32:57] Speaker 04:
and he didn't get any credit for it.

[00:33:00] Speaker 04:
Customer service is a key factor in the help desk management.

[00:33:03] Speaker 04:
You're the second level, you know, above the help desk staffers.

[00:33:06] Speaker 04:
He talks about all of his customer service experience and it didn't get him any credit.

[00:33:12] Speaker 04:
You've got all these subjective questions.

[00:33:19] Speaker 04:
You want to finish your sentence?

[00:33:21] Speaker 04:
Also, the subjective nature of the questions, there are no right or wrong answers to any of these questions.

[00:33:27] Speaker 04:
And the judge says, well, we don't even consider that unless it is a relative qualifications case.

[00:33:33] Speaker 04:
That's simply not true.

[00:33:35] Speaker 04:
Highly subjective questions are relevant no matter what kind of case it is, because they're always suspicious, and they're always a great vehicle for discrimination.

[00:33:43] Speaker 04:
Thank you very much, Your Honor.

[00:33:45] Speaker 04:
We obviously ask that you overturn the district court's decision.

[00:33:48] Speaker 02:
All right, thank you.

[00:33:49] Speaker 02:
We'll take the matter under submission.