[00:00:00] Speaker 03:
Case number 18-7037, Henry Obedeo, appellate versus Washington Metropolitan Area Trans Authority.

[00:00:09] Speaker 03:
Mrs. Scarborough for the weakest cry, Mr. Cole for the athlete.

[00:00:43] Speaker 00:
Good morning, Judge Rogers.

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It may please the court.

[00:00:46] Speaker 00:
I'm Thomas Burch from the University of Georgia Appellate Clinic appointed by the court as amicus on behalf of Mr. Oviedo.

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Today, one of our third year students, Joe Scarborough, will argue on our behalf and I'll be sitting at council table.

[00:00:58] Speaker 00:
Thank you very much, Your Honor.

[00:01:21] Speaker 06:
Good morning, Your Honors, and may it please the Court.

[00:01:25] Speaker 06:
My name is Joe Scarborough, as amicus, on behalf of Henry Oviedo.

[00:01:30] Speaker 06:
This Court should reverse the District Court's grant of summary judgment because it is inconsistent with ACCA v. Washington Hospital Center for two reasons.

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First, the District Court failed to explain why Mr. Oviedo's rebuttal evidence was insufficient to survive summary judgment.

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Second, had the District Court considered Mr. Oviedo's rebuttal evidence, it would have seen that Mr. Thomas's explanation for not interviewing him lacked credence.

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Your Honor, WMATA takes the position that someone with over 30 years of experience in the transportation industry did not even deserve an interview.

[00:02:08] Speaker 06:
Initially, WMATA explained that Mr. Oviedo did not receive... Why should we care what the District Court said?

[00:02:15] Speaker 02:
This is on summary judgment, correct?

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Appeal from summary judgment?

[00:02:20] Speaker 02:
Yes.

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And our review is de novo.

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That's number one, which means that we don't owe any deference whatsoever to the district court.

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And the second thing is that district courts aren't required to say a word when they issue summary judgment.

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They don't have to write opinions.

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They don't have to give an explanation.

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There's nothing in the federal rules of civil procedure that requires that.

[00:02:44] Speaker 02:
Why does it matter what the district would say?

[00:02:47] Speaker 06:
Your Honor, we're looking at whether or not the district court properly analyzed Mr. Oviedo's rebuttal evidence in light of the explanation that WMATA gave.

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And as to whether or not they have to explain what they considered, this court instructed in ACA that when district courts analyze the plaintiff's rebuttal evidence, it's not enough to just

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hold that they didn't submit additional evidence of discrimination.

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This court gave an example and cited Hidalgo as an example of where the First Circuit did not apply the correct analysis.

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This court criticized the First Circuit for both failing to address the significance of the plaintiffs' rebuttal evidence and for it failing to explain why it fell short.

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In fact, the Hidalgo Court's reasoning that the plaintiff had offered no evidence that could reasonably be construed to indicate the employer intended to discriminate is the same reasoning, almost verbatim, as the district court's here today.

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Initially, the district court explained that it did not interview Mr. Oviedo because he lacked familiarity with WMATA's business policies, practices, and procedures.

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However, Mr. Oviedo submitted rebuttal evidence that he had significantly more experience than at least one of the higher candidates.

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Now, would you agree that in ACCA, the in-bank court looked at the record itself?

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and made findings and determinations as to whether or not summary judgment was appropriate?

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Yes.

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The court there compared the candidate's qualifications and determined that a reasonable jury could find that the candidate was significantly more qualified and therefore inferred discrimination.

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So having criticized the First Circuit, this court went ahead and made its own determination on the record that was before it, correct?

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Yes.

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And here today, if this court compares the candidate's qualifications, it would find that Mr. Oviedo is significantly more qualified.

[00:04:53] Speaker 01:
How are we to do that?

[00:04:55] Speaker 01:
How are we to know what qualifications are necessary, were required for these two positions, or I guess for this position, this project manager position?

[00:05:07] Speaker 06:
Well, in the record is the job description.

[00:05:10] Speaker 01:
Is it?

[00:05:11] Speaker 01:
I mean, there is a job description at JA 137 to 139, I think it is, a new site.

[00:05:20] Speaker 01:
But it's a job description from 2010.

[00:05:25] Speaker 01:
And there's no declaration, no deposition testimony, nothing that says that that is the job description that applied to this position.

[00:05:37] Speaker 06:
Well, Mr. Oviedo gave that job description to Mr. Thomas during his deposition.

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He also attached it as an exhibit to his response to motion for summary judgment.

[00:05:49] Speaker 01:
He gave it to him and he said he didn't know whether that was the right job description or not.

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That was his testimony at the deposition.

[00:05:58] Speaker 06:
Yes, but before the district court, WMATA never objected to the job description.

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If it would have, Mr. Oviedo could have at that time submitted additional evidence connecting that job description to the two project manager positions.

[00:06:12] Speaker 01:
But the burden is on Mr. Oviedo to establish pretext overall, right?

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And so

[00:06:24] Speaker 01:
if his argument is that he's significantly more qualified, then he's gotta put in evidence of what his qualifications are, what the other candidate's qualifications are, and what the qualifications are that were required for the position.

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Isn't that his responsibility?

[00:06:44] Speaker 03:
Yes, and- Well, don't concede that too quickly.

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What Judge Wilkins said is that the plaintiff

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in a comparative qualifications claim has to put in the evidence of all the other applicants to make his claim.

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What your client did was to prepare his qualifications to the person who was actually selected for the job.

[00:07:19] Speaker 06:
Yes.

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Why is that not sufficient under our law?

[00:07:24] Speaker 06:
It is sufficient.

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What cases would you cite?

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Because WMATA says this case really isn't an ACA case.

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This is a Holcomb case and a Stewart case.

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And we don't micromanage agencies in terms of their personnel decisions.

[00:07:42] Speaker 06:
Your Honor, if we look at Acca or Latham, you can see that while a reasonable jury doesn't always have to defer to the employer's case, especially in a close call, if a reasonable jury can compare the qualifications and find that one of the candidates was significantly more qualified, then a reasonable jury can infer discrimination.

[00:08:02] Speaker 06:
If a reasonable jury was always required to defer to the employer, then no job discrimination case could ever go to trial.

[00:08:09] Speaker 03:
So is your response to Judge Wilkins then that that may be true as to the ultimate burden at trial, but at summary judgment, the plaintiff's burden is somewhat lessened in the sense that he doesn't necessarily have to show he would prevail, but simply that there was enough that a reasonable jury could find.

[00:08:35] Speaker 03:
And indeed, we have a case that basically says that, and I'll mispronounce it, because it's like Sozovsky, all right?

[00:08:45] Speaker 03:
I know Judge Henderson and I were on the panel.

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I don't remember who the third judge was, but that's from this circuit.

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We sent it back to the district court.

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It went to trial and the plaintiff lost.

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But as far as we were concerned in terms of what was here, there was enough at this point to show summary judgment was inappropriate.

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On the other hand, Judge Wilkins may come back and say yes, but we have a lot of cases saying that at summary judgment, the ultimate burden is on the plaintiff, and basically has to show he's entitled to judgment as a matter of law.

[00:09:24] Speaker 06:
Yes, Your Honor.

[00:09:25] Speaker 06:
But if we agree with all of that, and if you view the facts in the light most favorable to Mr. Oviedo, there's at least a jury question as to whether he was significantly more qualified and will not have acted with discriminatory intent.

[00:09:41] Speaker 01:
I guess the question that I would ask, this is a more narrow question, is if the district court has a declaration

[00:09:53] Speaker 01:
in front of it from the decision maker about why he made the decision and what the qualifications were that were pertinent to him.

[00:10:06] Speaker 01:
And there is no other evidence that's been put in that the district court has to evaluate whether or not the qualifications that the decision maker said he was looking for

[00:10:23] Speaker 01:
were the qualifications, what's the district court to do?

[00:10:29] Speaker 06:
Well, the declaration that WMATA attached to its motion for summary judgment is the first time that there's any mention of these being specialized positions for canopy installation or financial management.

[00:10:43] Speaker 06:
Nowhere in the 2014 memo that John Thomas wrote right after he made the decision, nowhere during John Thomas' deposition

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and nowhere in the job description.

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Is there any mention of these being specialized positions for canopy installation and financial management?

[00:11:02] Speaker 01:
But again, you're assuming that there is a job description in evidence.

[00:11:09] Speaker 01:
There isn't.

[00:11:11] Speaker 06:
Your Honor, the job description was submitted to the district court.

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And WMATA never objected to it.

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If it had of, Mr. Roviedo could have tied it more closely to the positions in question.

[00:11:26] Speaker 06:
However, without WMATA ever objecting to this job description and Mr. Roviedo referencing it multiple times, the job description was submitted as rebuttal evidence that the district court should have considered.

[00:11:39] Speaker 06:
But even without the job description,

[00:11:41] Speaker 06:
If you look at Mamata's initial explanation in the 2014 memo that Mr. Oviedo lacked familiarity with Mamata's business policies, practices, and procedures, it's difficult to see how, having worked there for 14 years, he didn't overcome this hurdle.

[00:11:58] Speaker 06:
This is especially when you compare his qualifications to those of the higher candidate, Ms.

[00:12:02] Speaker 06:
Levy.

[00:12:03] Speaker 02:
Well, let's do that.

[00:12:04] Speaker 02:
She had a master's degree in project management, right?

[00:12:10] Speaker 02:
Yes.

[00:12:11] Speaker 02:
He didn't.

[00:12:12] Speaker 05:
Yes.

[00:12:12] Speaker 02:
Right?

[00:12:13] Speaker 02:
And she was certified as a project manager, management professional, right?

[00:12:20] Speaker 02:
Yes.

[00:12:20] Speaker 02:
She wasn't.

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She managed a budget of $100 million.

[00:12:27] Speaker 02:
He didn't.

[00:12:30] Speaker 02:
So how's the jury to say, maybe he was a little bit more qualified, maybe he wasn't.

[00:12:36] Speaker 02:
But under ACCA,

[00:12:39] Speaker 02:
When you've got nuances like that and small differences between the candidates, the court said in ACCA that they're not going to micromanage or make a decision itself, that it's up to the people that are running whatever the company is.

[00:13:01] Speaker 06:
Well, we feel there is still a significant gap.

[00:13:05] Speaker 06:
If you look at WMATA's initial explanation for his decision.

[00:13:08] Speaker 02:
Just to round it off, I mean, when you go through the qualifications, the point is that it's, and the district court said this, that you cannot infer from the differences between them that the reason that he was not selected is lawful discrimination.

[00:13:31] Speaker 02:
That's all.

[00:13:33] Speaker 06:
Well, there are a number of other attributes in both of their resumes that show that Mr. Riviera is significantly more qualified.

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He has over 30 years of experience in the transportation industry.

[00:13:45] Speaker 06:
Ms.

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Levy, before working at WMATA, had never worked at a transportation company, meaning she had less than two years of experience in the transportation industry.

[00:13:54] Speaker 06:
Further, the job description stated preference for someone with a minimum of eight years' experience in the transportation industry.

[00:14:01] Speaker 01:
You're again assuming that we have to credit that.

[00:14:05] Speaker 01:
I mean, Mr. Alviedo did not submit a statement to counter the WMATA statement of undisputed facts, right?

[00:14:15] Speaker 01:
Yes.

[00:14:18] Speaker 01:
And he didn't submit his own kind of statement of material facts that he believed were in dispute under our local rules, right?

[00:14:28] Speaker 01:
Yes.

[00:14:30] Speaker 01:
So I guess the question that I have is the challenge for the district court is it has to make a ruling based on evidence or material that's been proffered as evidence.

[00:14:47] Speaker 01:
And this whole case hinges on a job description that's from the wrong year and there's no one

[00:14:56] Speaker 01:
even in a declaration saying that this is the right job description.

[00:15:01] Speaker 06:
Well, just looking at WMATA's initial explanation, this will answer your question as well as yours as to the significant gap in qualifications.

[00:15:12] Speaker 06:
WMATA said that Mr. Oviedo lacked sufficient familiarity with their business practices, policies, and procedures, and they hired someone who had worked there for less than two years instead of Mr. Oviedo who had worked there for over 14.

[00:15:29] Speaker 06:
This gap is difficult to see how Ms.

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Levy, having only worked there for two years, overcame the gap or overcame this hurdle of being familiar with WMATA's business practices, policies and procedures where Mr. Oviedo failed.

[00:15:46] Speaker 06:
Further, Mr. Oviedo was well qualified for these positions.

[00:15:51] Speaker 06:
He had a

[00:15:53] Speaker 06:
Bachelor of Science in Electrical Systems from State University of Chile, an MBA in Finance from St.

[00:16:00] Speaker 06:
Joseph's, and a Master's of Science in Systems Engineering from the University of Pennsylvania.

[00:16:06] Speaker 06:
He had over 30 years of experience in the transportation industry, where he oversaw multi-million dollar grants, managed and adjusted budgets, and was responsible for supervising contractors, consultants, and engineers.

[00:16:21] Speaker 06:
At WMATA, he had been a senior project manager on seven major projects where he managed cost schedules, replaced major electrical and mechanical equipment, and ensured that projects were completed on time and under budget.

[00:16:37] Speaker 06:
Further, Womata's explanation shifted over time.

[00:16:41] Speaker 06:
Womata initially explained that Mr. Oviedo lacked familiarity with his business policies and procedures, and that that was why he wasn't interviewed.

[00:16:50] Speaker 06:
Later, in its motion for summary judgment, for the first time, Womata explained

[00:16:57] Speaker 06:
that these were specialized positions for canopy installation and financial management.

[00:17:02] Speaker 06:
This shifting explanation could allow a court to find pretext.

[00:17:08] Speaker 06:
Finally, Your Honors, Wilmota misstated Mr. Oviedo's qualifications.

[00:17:13] Speaker 06:
It said that Mr. Oviedo was not fit to work in these specialized positions for financial management or canopy installation.

[00:17:22] Speaker 06:
However, given that he has served as a project manager for over 30 years,

[00:17:26] Speaker 06:
was in charge of all construction at his previous job at SEPTA, and then it asserts that he was not capable of installing canopies is a misstatement of his qualifications that's too obvious to be unintentional.

[00:17:40] Speaker 02:
Suppose the reason that appears for his not being hired was because he was too old.

[00:17:53] Speaker 02:
Suppose that's the reason.

[00:17:55] Speaker 02:
But WMATA is immune from ace discrimination claims.

[00:18:02] Speaker 02:
What do we do then?

[00:18:04] Speaker 06:
Well, Your Honor, the problem there is that Wemata never explained.

[00:18:09] Speaker 06:
That wasn't the reason that Wemata gave.

[00:18:11] Speaker 06:
They didn't say that he had a marriage.

[00:18:13] Speaker 02:
Oh, I realize that.

[00:18:14] Speaker 02:
I said, if you take a look, and it's sort of even between Ms.

[00:18:19] Speaker 02:
Levy and the plaintiff in this case, and the only explanation is that he was older than, much older than she was.

[00:18:32] Speaker 02:
What do we do then?

[00:18:34] Speaker 02:
since WMATA is immune from age discrimination in employment?

[00:18:39] Speaker 06:
Well, that would be a different situation.

[00:18:41] Speaker 02:
However... I realize that.

[00:18:43] Speaker 02:
That's why I'm asking the question.

[00:18:45] Speaker 06:
In that case, since Mr. Oviedo didn't raise age discrimination, if WMATA had said, we're not hiring Mr. Oviedo because he's too old, I'm sure at that point he would have raised age discrimination, but it never said that, and he never raised that issue before the district court.

[00:19:01] Speaker 06:
And so we wouldn't argue on that ground.

[00:19:04] Speaker 06:
However, because that's not what they said.

[00:19:06] Speaker 02:
I thought he did raise a claim of age discrimination.

[00:19:09] Speaker 06:
Well, it wasn't.

[00:19:11] Speaker 06:
He did, but then they have immunity, and so it's not being argued here today.

[00:19:15] Speaker 02:
Yeah.

[00:19:16] Speaker 02:
OK.

[00:19:16] Speaker 02:
Thank you.

[00:19:18] Speaker 06:
If you're honest, I don't have any further questions.

[00:19:20] Speaker 03:
Yes, why don't you?

[00:19:21] Speaker 03:
We'll give you a couple of minutes in rebuttal.

[00:19:37] Speaker 04:
Good morning, and may I please the court.

[00:19:38] Speaker 04:
My name is Richard Cole, and I represent the Washington Metropolitan Area Transit Authority, which I'll refer to probably interchangeably as WMATA or METRO throughout the argument today.

[00:19:47] Speaker 04:
The district court correctly decided that Mr. Oviedo failed to put forth sufficient evidence based on the record before it with respect to two Title VII claims of racial discrimination stemming from his non-selection to two project manager roles in November 2013 in METRO's Office of Major Capital Projects.

[00:20:07] Speaker 04:
As a housekeeping matter, Mr. Oviedo and the amicus submitted materials for the first time to this court, joint appendix pages 257 to 71.

[00:20:18] Speaker 04:
And this court does not have a fact-finding function.

[00:20:21] Speaker 04:
These were not part of the record below.

[00:20:23] Speaker 04:
And the amicus replied brief.

[00:20:26] Speaker 04:
They limited their arguments to solely the record before the district court.

[00:20:29] Speaker 04:
So we consider the matter conceded, and we won't discuss those documents in the course of today's argument unless you guys have specific questions.

[00:20:37] Speaker 03:
We guys don't have any particular questions.

[00:20:52] Speaker 04:
So a threshold issue, we must discuss the materials that were submitted at the summary judgment stage as, quote, rebuttal evidence before we can even begin an analysis of the candidate's qualifications compared to what the objective standards that WMATA was looking for to fill the roles.

[00:21:12] Speaker 04:
So certainly, ACA states that plaintiffs are not presumptively required to submit evidence over and above

[00:21:18] Speaker 04:
rebutting the employer's stated explanation to overcome summary judgment.

[00:21:22] Speaker 04:
But the ultimate burden of proof to show intentional discrimination remains with the plaintiff.

[00:21:27] Speaker 04:
That's Wheeler v. Georgetown University Hospital Center.

[00:21:29] Speaker 03:
So do you agree Mr. Thomas's initial statement was that the plaintiff's experience was too technical for the positions of program project manager

[00:21:49] Speaker 03:
that were announced in 2009?

[00:21:56] Speaker 03:
That's a yes or no.

[00:21:58] Speaker 04:
Yes, it is a yes or no.

[00:22:00] Speaker 04:
I do agree that... That's your answer, yes or no?

[00:22:03] Speaker 04:
Yes.

[00:22:03] Speaker 03:
All right, that is what Mr. Thomas said, correct?

[00:22:07] Speaker 04:
Consistently, not only in that memo, but in deposition.

[00:22:10] Speaker 03:
First time, that's what he said.

[00:22:11] Speaker 03:
There was no mention about canopies or financial, et cetera, right?

[00:22:16] Speaker 03:
You're right.

[00:22:16] Speaker 03:
But your argument is that

[00:22:20] Speaker 03:
a project manager necessarily involve those types of skills and talent?

[00:22:30] Speaker 04:
My argument is taken from, partially, Jackson Beacon's fact that employer based its ultimate hiring decision on one or more specific factors encompassed with a broader and more general job description does not itself raise an inference of discrimination sufficient to overcome summary judgment.

[00:22:47] Speaker 03:
And what about our in-bank decision in OCA?

[00:22:50] Speaker 04:
So in ACA, and again, before we can get to ACA, I think we have to assume that job code 2854 actually relates to the job description that was filled.

[00:23:01] Speaker 03:
Well, let me ask you about that.

[00:23:03] Speaker 03:
Mm-hmm.

[00:23:03] Speaker 03:
A plaintiff sues Womata.

[00:23:07] Speaker 04:
Yes.

[00:23:07] Speaker 03:
And he says that in 2009, there were two project manager positions announced.

[00:23:14] Speaker 03:
And he gives that four-letter number as the code, all right?

[00:23:22] Speaker 03:
Where does Mamata say that's not the job description?

[00:23:26] Speaker 03:
Mr. Thomas says he doesn't know, but that's a different issue.

[00:23:28] Speaker 04:
Well, so in 2013, he applied for two jobs.

[00:23:32] Speaker 04:
It's unclear because we never had the opportunity.

[00:23:35] Speaker 04:
He never asked it directly, open-ended, to the hiring manager, what were your job descriptions when you were filling this role.

[00:23:41] Speaker 03:
No, but I don't understand.

[00:23:41] Speaker 03:
If I sue a defendant and I say I wasn't hired for this project manager job,

[00:23:50] Speaker 03:
And I say, I'm totally qualified.

[00:23:53] Speaker 03:
And you say, well, no, that project manager job isn't like the project manager jobs you previously held.

[00:24:00] Speaker 03:
This is all about canopies and financial management.

[00:24:03] Speaker 04:
This record is not very developed.

[00:24:05] Speaker 04:
We never had a 36 deposition.

[00:24:07] Speaker 03:
Well, you're asking for judgment as a matter of law.

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

[00:24:10] Speaker 04:
Based on the insufficiency of the rebuttal evidence provided by the plaintiff.

[00:24:14] Speaker 04:
We have a statement from the hiring manager by affidavit and deposition testimony.

[00:24:19] Speaker 03:
He doesn't know.

[00:24:21] Speaker 03:
So who gets the benefit of that information?

[00:24:23] Speaker 04:
It's 2017 when he was deposed about a 2013 job position and we have 13,000 employees.

[00:24:29] Speaker 03:
With all due respect, counsel, you put him on as your witness.

[00:24:35] Speaker 03:
You filed the motion for summary judgment.

[00:24:38] Speaker 04:
Correct.

[00:24:38] Speaker 03:
And that's the position you took.

[00:24:40] Speaker 03:
But all I'm getting at, who gets the inference?

[00:24:44] Speaker 03:
When Thomas doesn't say it isn't the job description, he's just saying he doesn't know.

[00:24:50] Speaker 04:
Sure.

[00:24:50] Speaker 04:
And even if this court were to assume that this document was capable of being converted to admissible evidence, which is a standard in opposing summary judgment from Greer v. Paulson, and sheer hearsay counts for nothing,

[00:25:03] Speaker 04:
Even if we can, it's not whether or not WMATA didn't object.

[00:25:06] Speaker 04:
It's whether the document is capable of being converted to admissible evidence.

[00:25:10] Speaker 04:
I don't think the factual predicate is there, but that said, I would like to look at the document.

[00:25:14] Speaker 03:
Could I ask you, though, on that?

[00:25:15] Speaker 03:
Sure.

[00:25:16] Speaker 03:
That's going to be your argument.

[00:25:18] Speaker 03:
What did the plaintiff have to do?

[00:25:20] Speaker 03:
Did the plaintiff have to bring in a WMATA employee to say this was the job description?

[00:25:28] Speaker 04:
I think he could have made a statement, a sworn statement, by affidavit.

[00:25:31] Speaker 04:
I think he could have even made a... Saying what?

[00:25:33] Speaker 04:
that this job description matched the one that I applied for.

[00:25:36] Speaker 04:
That statement is not in the record.

[00:25:38] Speaker 03:
Isn't that the inference of his submitting it?

[00:25:40] Speaker 03:
There's no suggestion that he is manufacturing or misrepresenting what he understood.

[00:25:47] Speaker 04:
Respectfully, we have to guess.

[00:25:48] Speaker 04:
We don't have to guess.

[00:25:49] Speaker 03:
There's three job descriptions.

[00:25:50] Speaker 03:
On summary judgment, the Supreme Court has said there's no guessing at this point.

[00:25:56] Speaker 03:
There's no weighing of credibility.

[00:25:59] Speaker 04:
There are three job descriptions submitted in opposition to summary judgment.

[00:26:02] Speaker 04:
One is a 2006 job position for a manager of engineering.

[00:26:06] Speaker 04:
One is a 2009 job description of a construction inspector.

[00:26:10] Speaker 04:
And one is this 2010 job description that Judge Wilkins identified in

[00:26:15] Speaker 04:
opening argument, and so we're assuming that this is the one that was used because Mr. Oviedo said so himself in deposition with Mr. Thomas.

[00:26:25] Speaker 04:
And I'm fine with that because I think even if we assume that this is the job description used, the summary of the job description states that they're looking to fill a role who could perform projects on time within budget.

[00:26:40] Speaker 04:
Specific responsibilities include planning, scheduling, budget management,

[00:26:43] Speaker 04:
developing and maintaining schedules and budgets responsible for... What page is that on?

[00:26:48] Speaker 04:
This is JA 137, Your Honor.

[00:26:51] Speaker 04:
The project manager is also responsible for identifying scheduling and cost variances and then implementing recommendations to correct the negative variances.

[00:27:00] Speaker 03:
And what evidence is there that in the seven project manager jobs he previously held for WMATA, he didn't do all these things?

[00:27:10] Speaker 03:
There isn't any evidence that those projects were never successfully completed.

[00:27:15] Speaker 04:
I don't believe WMATA ever stated that Mr. Oviedo was not qualified for this job.

[00:27:20] Speaker 04:
I think that's a distinction that's important and material here.

[00:27:23] Speaker 03:
We are saying that the selected candidate... Well, you're fighting about, as I'm arguing about, what is the job?

[00:27:30] Speaker 03:
We have no idea, is your argument, because we don't know what the job description is.

[00:27:35] Speaker 04:
I'm saying that this court has to credit Mr. Thomas' statement in affidavit.

[00:27:39] Speaker 03:
That he doesn't know.

[00:27:41] Speaker 04:
In his affidavit, he stated the specific nature of the project management roles that he was trying to fill.

[00:27:46] Speaker 04:
Ms.

[00:27:47] Speaker 04:
Levy specifically worked in his department, worked underneath him, and demonstrated the experience.

[00:27:52] Speaker 03:
Did she, as a project manager?

[00:27:56] Speaker 04:
I think she was promoted into a project manager role.

[00:27:58] Speaker 03:
I don't see that counseled candidly.

[00:28:01] Speaker 03:
Let me say, we have to be clear here.

[00:28:03] Speaker 03:
WMATA could well prevail, ultimately.

[00:28:08] Speaker 03:
I understand.

[00:28:08] Speaker 03:
The only question is on summary judgment.

[00:28:11] Speaker 03:
And we have this moving target about this job and what was required.

[00:28:18] Speaker 03:
And that's what ACHA said is sufficient.

[00:28:22] Speaker 04:
Acca and Latham both say that there has to be a wide and inexplicable gulf in qualifications.

[00:28:28] Speaker 04:
And in Latham, the person hired had no experience in public affairs or public relations over somebody who was working as a public affairs specialist for three years.

[00:28:37] Speaker 03:
So your position is no reasonable jury could find that somebody who'd worked for a lot of two years compared to somebody who's been there, what is it?

[00:28:49] Speaker 03:
19 years, and he's done all these major, major projects.

[00:28:55] Speaker 04:
As an electrical engineer, correct.

[00:28:57] Speaker 03:
He's been the project manager.

[00:28:59] Speaker 03:
Right, but.

[00:29:00] Speaker 03:
Arata never denied that.

[00:29:01] Speaker 04:
That term in of itself doesn't carry much meaning.

[00:29:04] Speaker 04:
You know, it could be, there's multiple departments.

[00:29:06] Speaker 03:
But you just told us that they describe what it meant.

[00:29:11] Speaker 04:
Well, in this instance, there's a job code from 2010 that describes the duties of a project manager as used by various departments according to this document.

[00:29:21] Speaker 02:
And importantly... The very fact that he worked as a project manager, however technical that was, in electrical engineering or whatever, in several different capacities over a long period of time, tends to show

[00:29:38] Speaker 02:
that he was not being discriminated against.

[00:29:43] Speaker 02:
He got all those positions.

[00:29:46] Speaker 02:
And if there was discrimination at WMATA, how do you explain that?

[00:29:49] Speaker 02:
You can't.

[00:29:51] Speaker 02:
And so what you're left with is just simply a comparison of his qualifications with Ms.

[00:29:57] Speaker 02:
Levy's qualifications.

[00:29:58] Speaker 02:
And I was already through that with Mr. Scarborough.

[00:30:02] Speaker 02:
that there are good points here and there are good points there.

[00:30:07] Speaker 02:
And given the history, it seems to me that you cannot infer, there was no direct evidence of discrimination, that you can't possibly infer discrimination as a reason for his not being hired.

[00:30:21] Speaker 04:
And I'd like to add, in the minimum qualification section on, I believe, JA 139, it says bachelor's degree in engineering, transportation, or a related field.

[00:30:32] Speaker 04:
These are additional acceptable requirements.

[00:30:36] Speaker 04:
And a master's of science in project management would surely be a related field.

[00:30:40] Speaker 04:
Additionally, there's an equivalent combination of education and relevant work experience that will be considered as part of these minimum qualifications.

[00:30:48] Speaker 04:
And Ms.

[00:30:49] Speaker 04:
Levy met those standards.

[00:30:55] Speaker 01:
So how do you get around the minimum of eight years of experience as a project manager in the transportation industry?

[00:31:04] Speaker 04:
Well, that's exactly what I was saying.

[00:31:05] Speaker 04:
The second paragraph there in minimum qualification says there's an equivalent combination of education and relevant work experience that will be considered if the candidate can meet these certain things.

[00:31:15] Speaker 04:
And she can and did.

[00:31:17] Speaker 04:
She worked within that department.

[00:31:19] Speaker 04:
She had direct fiscal responsibility over major construction projects.

[00:31:24] Speaker 04:
She did it under the supervision of the hiring manager.

[00:31:27] Speaker 04:
So he observed these.

[00:31:28] Speaker 04:
This is not subjective criteria like somebody interviewed strongly.

[00:31:32] Speaker 04:
This is somebody who demonstrated the capability of performing adequately in their role.

[00:31:38] Speaker 04:
And so in that sense, it's not like the Acca case where there was 19 years of experience as a hospital orderly who

[00:31:47] Speaker 04:
filled prescriptions or delivered prescriptions and was familiar with the pharmacy versus a person who met one year in the laundry and only volunteered for two months in the pharmacy.

[00:31:57] Speaker 04:
I mean, that's a wide, inexplicable gulf of experiences that I don't think applies here.

[00:32:05] Speaker 01:
Further.

[00:32:06] Speaker 01:
Can I just ask you about this equivalent combination of education and work experience?

[00:32:12] Speaker 01:
What, in the selected person's background,

[00:32:17] Speaker 01:
was eight years of relevant work experience?

[00:32:21] Speaker 04:
Well, she had over nine years of experience in finance and construction and working on energy and transportation projects.

[00:32:29] Speaker 04:
And it was directly applicable to this role in the Office of Major Capital Projects.

[00:32:34] Speaker 04:
And so I believe that they viewed her education in combination with her experience to say that she met the minimum qualifications.

[00:32:47] Speaker 04:
And further, I'd like to go on to talk about the alleged misstatements regarding qualifications of Mr. Oviedo.

[00:32:56] Speaker 04:
The misstatements that I believe are actionable that could be inferences of discrimination are more like definitive statements that could be provably false.

[00:33:05] Speaker 04:
In ACA, the example is given that the employer says a candidate does not speak Portuguese, but the candidate does speak the language, and the employer knew it.

[00:33:13] Speaker 04:
In Lake Rim v. Snow, one of the examples is that the government said it could not promote somebody from GS-13 to GS-15, but there was a personnel exception where they could.

[00:33:24] Speaker 04:
And so that was something, there was a misstatement about why they didn't select them.

[00:33:27] Speaker 04:
I don't believe that that's the situation here.

[00:33:30] Speaker 04:
I think the situation is much more similar to Holcomb, where she said, oh, they're misstating my qualifications.

[00:33:35] Speaker 04:
She said that the candidate selected had a better breadth of understanding of OEEO complaints.

[00:33:41] Speaker 04:
And she said, well, two years ago, I had a positive performance review about my processing of OEO complaints.

[00:33:48] Speaker 04:
And the court determined, look, this is not an inconsistent statement.

[00:33:52] Speaker 04:
This is not something that is a contradiction.

[00:33:55] Speaker 04:
They never said Holcomb lacked experience or never processed EEO complaints.

[00:34:00] Speaker 04:
I think that's similar here.

[00:34:02] Speaker 04:
We're not saying Mr. Oviedo lacked

[00:34:04] Speaker 04:
key experience in submitting costs for approval or budgets or keeping a project on time.

[00:34:10] Speaker 04:
We're just saying that the candidate selected had a better breadth of understanding for the type of work within the office of major capital projects for the project manager position that she was selected for.

[00:34:22] Speaker 04:
And again, I don't believe our explanation shifted over time.

[00:34:25] Speaker 04:
In Galletta v. Gray, you had an employer at the time of the

[00:34:29] Speaker 04:
incident at the time of the transfer, they said, oh, you pick a reason why we're transferring you.

[00:34:35] Speaker 04:
And then in interrogatories, they said some new reason.

[00:34:37] Speaker 04:
And then on brief, they had a third reason about insubordination.

[00:34:42] Speaker 04:
That's not been the case here.

[00:34:43] Speaker 04:
I believe if you read the 2014 memo that was close to contemporaneous with the decision from John Thomas, that he was saying that Mr. Oviedo's experience was narrowly focused.

[00:34:54] Speaker 04:
He reiterated that in deposition, and he expanded on it in affidavit.

[00:34:57] Speaker 04:
It appears for the first time because the record wasn't developed.

[00:35:00] Speaker 04:
He wasn't asked directly, what were your objective job qualifications that you were filling these roles for?

[00:35:06] Speaker 04:
He wasn't asked that.

[00:35:08] Speaker 04:
If you read the deposition testimony, there was direct questions about, why wasn't I qualified?

[00:35:12] Speaker 04:
It wasn't an attorney asking the questions.

[00:35:15] Speaker 04:
So he didn't have the opportunity to provide those answers.

[00:35:21] Speaker 04:
So for those reasons, we believe that the rebuttal evidence in the record before the district court alone is not sufficient to overcome summary judgment and the matter should be affirmed.

[00:35:52] Speaker 06:
Your Honors, even if you only consider one piece of evidence in this record, and that is Mr. Riviere and his resume, and you look at Womata's explanation that he was not fit because these jobs were specialized positions for canopy installation, solely based on that, Womata is misstating his qualifications.

[00:36:14] Speaker 06:
Mr. Oviedo's resume shows over 30 years of experience in the transportation industry where he has been in charge of all construction and managed major construction projects and project manager projects at various rail stations.

[00:36:31] Speaker 03:
So what about Judge Randolph's point?

[00:36:34] Speaker 03:
He's worked there all these years.

[00:36:36] Speaker 03:
He's been appointed or selected to be the project manager on these major

[00:36:43] Speaker 03:
Projects.

[00:36:49] Speaker 03:
Where's the discrimination?

[00:36:51] Speaker 06:
Your Honor, all of these projects were within the same position.

[00:36:55] Speaker 06:
He held the same position while he was working as the project manager on these different projects.

[00:37:00] Speaker 06:
He applied for 12 new positions and never received any of them.

[00:37:06] Speaker 06:
And so that's where you can see the discrimination.

[00:37:09] Speaker 01:
And this position that's at issue, did it pay more or was it at a higher grade than the position that he was working in?

[00:37:18] Speaker 01:
Yes.

[00:37:20] Speaker 02:
What was the difference in pay?

[00:37:22] Speaker 06:
I'm not sure of the exact numbers.

[00:37:24] Speaker 06:
They used the gradings.

[00:37:25] Speaker 03:
His testimony was that he expected, even though it was a lateral move, what had happened in the past was people who moved laterally got a pay increase.

[00:37:40] Speaker 03:
That's all we have, isn't it?

[00:37:42] Speaker 02:
Yeah, I don't think there's any evidence of a difference in pay grade.

[00:37:47] Speaker 02:
At least I didn't see.

[00:37:51] Speaker 02:
Can you point to something in the Joint Appendix that gives us that information?

[00:37:57] Speaker 06:
Your Honor, off the top of my head, I can't give you an exact reference from the Joint Appendix indicating that there was a definite pay increase.

[00:38:04] Speaker 06:
However, we can submit a... How about any reference?

[00:38:08] Speaker 02:
It doesn't have to be exact.

[00:38:11] Speaker 06:
Your Honor, as I recall, this position did include a pay increase.

[00:38:16] Speaker 06:
And that is why Mr. Rivera was applying for it, is he was seeking this new position which included a pay increase.

[00:38:24] Speaker 06:
And he had applied for 12 previous positions and not received any of them.

[00:38:31] Speaker 06:
And again, your honors, if you look at his resume, for WMATA to say that he was not fit to install canopies when he's built entire substations and been responsible for the construction there is a gross misstatement of his qualifications.

[00:38:48] Speaker 06:
Further, as to the job description, WMATA in the reply brief never denied that this was the job description.

[00:38:57] Speaker 06:
In his response to motion for summary judgment, he alleged that WMATA never raised that these were specialized positions for canopy insulation in the job description.

[00:39:13] Speaker 06:
The other things that the job description says, opposing counsel points out that Ms.

[00:39:19] Speaker 06:
Levy had the progressively responsible nine years of financial management to satisfy the eight-year minimum requirement.

[00:39:27] Speaker 06:
However, the job description explicitly says a minimum of eight years working in the transportation industry.

[00:39:33] Speaker 06:
Well, Ms.

[00:39:34] Speaker 06:
Levy might have had this progressively responsible financial experience.

[00:39:38] Speaker 06:
She had never worked at a transportation company before she worked at WMATA, and she had worked at WMATA for less than two years.

[00:39:44] Speaker 01:
So you don't think that there could be an equivalency for the transportation industry requirement like there could be an equivalency for anything else in the job description?

[00:39:56] Speaker 06:
Your Honor, Ms.

[00:39:57] Speaker 06:
Levy has never worked at a transportation company.

[00:40:00] Speaker 06:
She does have some progressively responsible financial management experience, but not in the transportation industry.

[00:40:08] Speaker 06:
Mr. Oviedo, on the other hand, has over 30 years of experience in the transportation industry.

[00:40:13] Speaker 06:
That 28-year gap is even larger.

[00:40:16] Speaker 02:
The evidence indicated his 30 years were spent in electrical engineering.

[00:40:21] Speaker 02:
And Mr. Thomas testified that that was

[00:40:25] Speaker 02:
It's a judgment call.

[00:40:26] Speaker 02:
He said that was a narrow focus as opposed to a broader focus dealing with budgets and large sums of money, which is what this involved and what Ms.

[00:40:39] Speaker 02:
Levy had experience with.

[00:40:43] Speaker 02:
That doesn't mean that your client or that the plaintiff was not qualified.

[00:40:50] Speaker 02:
But it revolves or resolves into a judgment call in comparing him with the person who was hired.

[00:41:01] Speaker 06:
When Wimata asserts, or Mr. Thomas asserts, that Mr. Roviedo only had a narrow experience in electrical, it's cherry picking items from his resume while ignoring others that show he had, while he did have a focus in that, he had a broad experience and certainly was qualified to handle this job.

[00:41:20] Speaker 01:
So is your argument that reasonable fact finder

[00:41:24] Speaker 01:
viewing the evidence in the light most favorable to Mr. Oviedo could find that explanation in and of itself to be false?

[00:41:32] Speaker 06:
Yes.

[00:41:33] Speaker 06:
Mr. Oviedo had broad experience.

[00:41:36] Speaker 06:
He had more experience in project managing and the transportation industry than Ms.

[00:41:42] Speaker 06:
Levy.

[00:41:43] Speaker 06:
And once again, if we only look at one piece of evidence, and that is Mr. Oviedo's resume with this broad

[00:41:50] Speaker 06:
long transportation project manager experience, where he's built entire substations, the storage containers, elevators, escalators, to assert that he was not qualified to build canopies, which Mr. Riviero himself asserted only requires the tightening of bolts and things of that nature, is a misstatement of his qualifications, too obvious to be unintentional.

[00:42:16] Speaker 03:
So this case comes to us on the

[00:42:21] Speaker 03:
basis that it was the failure to interview that was discriminatory, not the failure to select him for the position.

[00:42:36] Speaker 03:
And that's a little different than some of the cases we get where someone says, I should have gotten the job.

[00:42:47] Speaker 03:
That's not your client's argument.

[00:42:51] Speaker 03:
And even in reply, you stick with the notion that it's the discrimination in not deciding to interview him.

[00:43:00] Speaker 03:
And that's all that's at issue here.

[00:43:04] Speaker 03:
Not who gets the job.

[00:43:07] Speaker 03:
Is that right?

[00:43:09] Speaker 06:
Well, Your Honor, the key is that if they don't interview him, then he can't get the job.

[00:43:14] Speaker 03:
No, but I understand your point.

[00:43:16] Speaker 03:
But Counsel, that's why I looked at your reply brief, because I wanted to be sure you were sticking with it.

[00:43:22] Speaker 03:
The way you have framed it, it's a little different than some of these other cases where people say, I should have received the job because I'm much more qualified than the person who received it.

[00:43:35] Speaker 03:
That is not the argument we are presented with.

[00:43:39] Speaker 03:
Mrs. Levy may have degrees galore.

[00:43:42] Speaker 03:
She may have this financial experience.

[00:43:46] Speaker 03:
Mr. Thomas may think she's the greatest thing that's come along.

[00:43:51] Speaker 03:
But all this appellant is arguing is it was the failure to interview him that was discriminatory.

[00:44:04] Speaker 03:
Is that correct?

[00:44:05] Speaker 03:
I want to be very clear about that.

[00:44:06] Speaker 03:
And I understand your point about if you're not interviewed, you can't get the job.

[00:44:10] Speaker 03:
But this is not quite the qualifications type of job that some of our cases have addressed.

[00:44:19] Speaker 03:
We were actually comparing.

[00:44:21] Speaker 03:
Resumes.

[00:44:24] Speaker 03:
This is just the failure to interview him.

[00:44:29] Speaker 03:
That's your discriminatory claim, right?

[00:44:33] Speaker 06:
Your Honor, Mr. Oviedo, yes, was well qualified for these positions and at the least should have received an interview, especially compared with the candidates who did receive an interview.

[00:44:44] Speaker 06:
For Mr. Oviedo to have over 30 years of experience in the transportation industry and not even receive an interview for these positions, especially when opposing counsel has even recognized in his argument that he was well qualified,

[00:44:58] Speaker 06:
At the least Mr. Oviedo deserved to receive an interview so that Mr. Thomas could further look and decide whether or not he was qualified.

[00:45:07] Speaker 03:
So suppose the agency has multiple applicants and they all have, let's just assume for the moment this is hypothetical, a lot of experience that's relevant to the project manager jobs that are at issue.

[00:45:26] Speaker 03:
And so Wamana decides, we're not going to interview all 20.

[00:45:30] Speaker 03:
We're just going to narrow it down.

[00:45:33] Speaker 03:
And it may well be as Judge Randolph's question inquired, maybe they just decided your client was too old.

[00:45:42] Speaker 03:
I mean, he had a lot of experience, but too old.

[00:45:46] Speaker 03:
And they had all these other people who were younger and had relevant experience.

[00:45:51] Speaker 03:
So Wamana decided it wanted to focus on them.

[00:45:56] Speaker 03:
and those were the people it was going to interview.

[00:46:01] Speaker 03:
Can an inference of discrimination be based on that type of claim?

[00:46:07] Speaker 06:
The key there, Your Honor, would be WMATA explaining that that was the reason for their decision.

[00:46:14] Speaker 06:
All this boils down to is whether the explanation that WMATA gave could, a reasonable jury could find that it was not the true reason or that it was false.

[00:46:24] Speaker 06:
And the reasons that WMATA gave in this case do not objectively make sense.

[00:46:30] Speaker 06:
WMATA didn't say that it didn't like him.

[00:46:32] Speaker 06:
It didn't say he was too old.

[00:46:34] Speaker 06:
It said that he wasn't qualified, that he wasn't able or fit to install canopies.

[00:46:40] Speaker 02:
And that assertion... Is the discrimination you're claiming racial?

[00:46:45] Speaker 06:
National origin.

[00:46:47] Speaker 02:
Because he's from Chile?

[00:46:49] Speaker 01:
Yes.

[00:46:53] Speaker 01:
So in this case, am I correct that the evidence that was put before the district court was that

[00:47:01] Speaker 01:
There were six or seven applicants in that.

[00:47:06] Speaker 01:
Mr. Thomas interviewed all but two.

[00:47:08] Speaker 01:
I think that's what I'm seeing at JA 154.

[00:47:12] Speaker 01:
But we don't have evidence in the record about the relative qualifications of all of the people

[00:47:28] Speaker 01:
who were interviewed or the other person besides Mr Oviedo who was not interviewed.

[00:47:33] Speaker 01:
We just have a comparison between his qualifications and the person who was selected.

[00:47:41] Speaker 01:
Yes.

[00:47:46] Speaker 03:
Anything further?

[00:47:48] Speaker 06:
There you are.

[00:47:49] Speaker 06:
Thank you.

[00:47:49] Speaker 03:
Thank you.

[00:47:50] Speaker 03:
We'll take the cases under advisement.

[00:47:54] Speaker 03:
I'd like to thank Amica's Council, both the Georgia Law School and Mr. Scarborough for their assistance to the court.