[00:00:08] Speaker ?:
versus C.M.T.E.A.'

[00:00:09] Speaker 01:
's architect at the capitol.

[00:00:11] Speaker 01:
This run out for the appellate, this rule for the appellate.

[00:00:46] Speaker 00:
Good morning, Your Honors.

[00:00:49] Speaker 00:
May it please the Court.

[00:00:50] Speaker 00:
The judgment of the District Court needs to be reversed because there are issues of fact about both motive and pretext.

[00:00:57] Speaker 01:
I'm sorry, what?

[00:00:57] Speaker 01:
I can't hear you.

[00:00:59] Speaker 00:
I'm sorry.

[00:01:00] Speaker 00:
There are issues of fact about both motive and pretext.

[00:01:05] Speaker 00:
And you bring up a good point, Judge Ginsburg, because you're interested in what I'm saying and you didn't hear me properly, you asked me to repeat.

[00:01:13] Speaker 00:
Mr. Mayorga, during his job interview for the position at issue in this case, was not once asked to repeat what he said or to clarify.

[00:01:24] Speaker 00:
He is a gentleman who originates from Nicaragua.

[00:01:28] Speaker 00:
He has a very heavy accent, and as he attested to, when he doesn't know people very well,

[00:01:35] Speaker 00:
They're always asking him to repeat himself and to explain what he said.

[00:01:39] Speaker 00:
But here, in this case, the three panelists asked him no follow-up questions and never once asked him to repeat what he said.

[00:01:47] Speaker 01:
Am I correct in understanding that your position is that because of the things you're saying and more, that the decision – pardon me – that the reason given for the decision was pretextual?

[00:01:58] Speaker 00:
Yes.

[00:01:59] Speaker 01:
And that's your only argument?

[00:02:00] Speaker 00:
No, that's not our only argument.

[00:02:01] Speaker 01:
What is the other argument?

[00:02:02] Speaker 00:
There is evidence of motive on top of that, one of which is what I'm speaking about now, and the only reason I started with that.

[00:02:09] Speaker 01:
I thought that evidence, most of it's recounted in your statement of the case, not in the argument.

[00:02:16] Speaker 01:
that that was sort of background information to inform why this is likely pretext in your argument.

[00:02:23] Speaker 00:
Well, the motive and pretext go together.

[00:02:27] Speaker 01:
Part of the motive evidence... And the question is, is it one motive?

[00:02:32] Speaker 01:
Is there something other than animus toward the plaintiff here that's in play, or is it just that this was... I've got to restate that.

[00:02:44] Speaker 01:
Is your argument anything more than that the reasons given were pretextual?

[00:02:49] Speaker 01:
If so, what else is it?

[00:02:52] Speaker 00:
OK.

[00:02:52] Speaker 00:
There is evidence of outright bias, the fact that two of the panelists have teased Mr. Mayorga about his Hispanic family first name.

[00:03:02] Speaker 00:
Where's that argument?

[00:03:03] Speaker 00:
I'm sorry?

[00:03:04] Speaker 01:
That's in your statement of the facts.

[00:03:05] Speaker 01:
Where is the argument?

[00:03:06] Speaker 00:
Where's the argument?

[00:03:07] Speaker 01:
Yeah.

[00:03:07] Speaker 01:
I mean, all I can find in the argument section is that this is a pretext.

[00:03:16] Speaker 01:
that everything said about his qualifications, for instance, was a pretext to hide discrimination.

[00:03:27] Speaker 00:
I think the two arguments go hand in hand.

[00:03:44] Speaker 00:
Yes, in my main brief, the legal arguments focused on the pretext, because there's legal argument to be made there.

[00:03:54] Speaker 00:
But the evidence of bias still supports the argument of pretext.

[00:03:58] Speaker 01:
But that's the argument, pretext.

[00:04:01] Speaker 01:
All the stuff about bias supports the argument of pretext, right?

[00:04:06] Speaker 01:
But in a typical mixed motive case.

[00:04:09] Speaker 00:
We're not arguing mixed motive.

[00:04:11] Speaker 01:
I want to clarify.

[00:04:12] Speaker 01:
You're not arguing mixed motive.

[00:04:13] Speaker 01:
You're arguing pretext, and you're supporting pretext with surrounding elements about the context.

[00:04:18] Speaker 00:
Yes.

[00:04:19] Speaker 01:
So in a pretext argument, your burden is but for causation.

[00:04:30] Speaker 01:
But for this discrimination, Mr. Mayorga would have gotten the job.

[00:04:34] Speaker 01:
Yes.

[00:04:36] Speaker 01:
But that means you have to show that he is the most qualified.

[00:04:42] Speaker 01:
But for the discrimination, he would have gotten the job because, for instance, in a hypothetical case, his credentials were superior to everyone else's, or he scored highest on a test.

[00:04:54] Speaker 00:
No, Your Honor.

[00:04:54] Speaker 00:
That, I believe, this court has held, that is only one way

[00:04:58] Speaker 00:
to show pretext in a non-selection case.

[00:05:01] Speaker 00:
There are other ways, one of which is to just show that the reasons are unworthy of credence.

[00:05:07] Speaker 00:
And we've done that because the reasons they give for each selectee, the reasons that Mr. Bieber, the selection official, gives is contradicted by two of the panelists who say Terry Watson said that project management

[00:05:20] Speaker 00:
and network experience were not primarily what they were seeking, as did panelist Cliff Wallace.

[00:05:29] Speaker 01:
The other thing is that they completely... Is that as much as saying that he really was the best qualified?

[00:05:36] Speaker 00:
Well, it's...

[00:05:39] Speaker 00:
A jury can infer that the real reason was discrimination from evidence of false reasons, and even the Supreme Court said that in the Reeves v. Sanderson plumbing case.

[00:05:52] Speaker 00:
They can also infer it from the outright misstatements about his skills.

[00:05:57] Speaker 00:
And the reason that that's a way to show pretext

[00:06:01] Speaker 00:
is the same reason it shows pretext that they didn't listen to him during his interview, because they weren't really interested in his qualifications.

[00:06:09] Speaker 00:
So he has a degree in network.

[00:06:12] Speaker 00:
He has an associate's degree, which is unusual for people in this line of work.

[00:06:17] Speaker 00:
The people who are selected don't have degrees.

[00:06:20] Speaker 00:
It's on his resume.

[00:06:21] Speaker 00:
He said it during his interview, which one of the panelists wrote down.

[00:06:25] Speaker 00:
But Mr. Bieber says he had no degree in network and also

[00:06:29] Speaker 00:
that he had no experience in network, which a jury could find is not true.

[00:06:34] Speaker 01:
Could they find that he would have gotten the job?

[00:06:37] Speaker 01:
Yes, because they could find... So you're arguing that his credentials were superior, correct?

[00:06:44] Speaker 01:
That he was in fact... By inference, yes.

[00:06:47] Speaker 00:
By inference.

[00:06:47] Speaker 00:
But we are not outright setting out to use that method of pretext.

[00:06:52] Speaker 00:
That is only one way to prove pretext.

[00:06:54] Speaker 00:
The methods we're using

[00:06:55] Speaker 00:
is one, that they gave false reasons about Mr. Bieber gave false reasons about network and about project management, which other panelists said were not the criteria.

[00:07:05] Speaker 00:
Two, is that they completely misstate his qualifications.

[00:07:08] Speaker 00:
Mr. Bieber even said he didn't have HVAC experience, which is clear on his resume.

[00:07:14] Speaker 00:
That's his background.

[00:07:15] Speaker 00:
He has had eight years of HVAC experience.

[00:07:18] Speaker 04:
Can I ask you a question about something you said in your reply brief?

[00:07:21] Speaker 04:
Sure.

[00:07:21] Speaker 04:
So on page three of the reply brief,

[00:07:23] Speaker 04:
It says, it was not until his deposition that Mr. Bieber first mentioned that the successful candidate needed to have experience with Cisco, low voltage electricity, and fiber optics.

[00:07:32] Speaker 04:
And then the next sentence says it was only after Mr. Bieber learned that Mr. Coulter had those three skills and Mr. Mayorga did not that Mr. Bieber emphasized those particular skills.

[00:07:42] Speaker 04:
So am I right in reading that sentence to acquiesce in the notion that Mr. Mayorga did not have those skills?

[00:07:50] Speaker 00:
Mr. Mayorga had some of those skills, but Mr. Bieber's, what we're alleging there is that Mr. Bieber is picking and choosing the skills that Mr. Coulter has and saying that those were important.

[00:08:03] Speaker 00:
For instance, BACNET, B-A-C-N-E-T, is something that Mr. Coulter did not have, and it's also in the vacancy announcement.

[00:08:11] Speaker 00:
But Mr. Bieber never

[00:08:13] Speaker 00:
points that out as a weakness at all.

[00:08:15] Speaker 00:
Instead what he does is he, after the fact, after he selects Coulter and looks at his qualifications, after that he says, well, these were the qualifications we were looking for all along, even though the vacancy announcement doesn't reflect that.

[00:08:29] Speaker 00:
Mr. Bieber does in fact have Cisco, but I'm sorry, Mr. Mayorga does have Cisco experience.

[00:08:35] Speaker 04:
That's what I was confused about because the

[00:08:38] Speaker 04:
From the materials in the case, it looks like the selectors thought it was relevant whether somebody had experience with Cisco low voltage and fiber optics.

[00:08:46] Speaker 04:
I understand now that you're saying, well, actually, that was never important.

[00:08:49] Speaker 04:
That's just reverse engineered to make it seem like it should have been important.

[00:08:52] Speaker 04:
But actually, it seems like there's some indication in the record that that was deemed to be important.

[00:08:55] Speaker 00:
Maybe it's reverse prioritized.

[00:08:58] Speaker 00:
So there's like 10 different skills that a person needs.

[00:09:02] Speaker 00:
The ones that Mayorga has that Coulter doesn't all of a sudden are not important, even though they're listed in the vacancy announcement.

[00:09:10] Speaker 00:
The ones that Mr. Coulter has where Mr. Bieber says that Mr. Mayorga doesn't have them, even though there is evidence that he does have them,

[00:09:20] Speaker 00:
He then says, well, those are the most important.

[00:09:23] Speaker 00:
One of the other arguments that is important is Mr. Bieber outright says that Mr. Mayorga has no bassinet experience.

[00:09:34] Speaker 00:
He doesn't say he has very little, as one of the other panelists allege, but he says he has none.

[00:09:39] Speaker 00:
That is a misstatement of his skills.

[00:09:42] Speaker 00:
And this court has held in ACCA versus Washington Hospital Center that a complete misstatement about someone's skills and experience is enough to go to a jury on the issue.

[00:09:53] Speaker 00:
We're not asking.

[00:09:54] Speaker 04:
If it's knowing.

[00:09:55] Speaker 00:
I'm sorry?

[00:09:56] Speaker 04:
If it's knowing.

[00:09:56] Speaker 04:
I mean, the person has to know that they're wrong about it.

[00:09:59] Speaker 00:
Right.

[00:10:00] Speaker 00:
Right.

[00:10:00] Speaker 00:
And it says on his resume that he has bassinet experience.

[00:10:04] Speaker 00:
And also, the reason Mr. Bieber gives that he has no bassinet experience

[00:10:09] Speaker 00:
is well he didn't work in my shop and only my shop does bass net.

[00:10:13] Speaker 00:
Well Mr. Coulter also didn't work in his shop.

[00:10:16] Speaker 02:
Did Mr. Mayorga have bass net on his resume?

[00:10:19] Speaker 02:
I thought that he did not.

[00:10:21] Speaker 02:
I thought that Mr. Coulter did.

[00:10:23] Speaker 02:
but that Mr. Mayorga did not.

[00:10:25] Speaker 00:
OK.

[00:10:26] Speaker 00:
Mr. Mayorga says on his resume that he has building automation systems work.

[00:10:31] Speaker 00:
The only way to do building automation system is network.

[00:10:36] Speaker 00:
So he doesn't use the correct phrase, bass net.

[00:10:39] Speaker 00:
But again, that's being really picky with semantics.

[00:10:44] Speaker 00:
Mr. Mayorga.

[00:10:45] Speaker 04:
I thought actually that there was a difference between bass and bass net, right?

[00:10:52] Speaker 00:
Well, that is what they have argued that Bass could be just one building, and BassNet is all the buildings.

[00:11:00] Speaker 00:
But if John Coulter has BassNet, then it can't be true that you can only do BassNet if you work

[00:11:11] Speaker 00:
in the shop where Mr. Bieber worked.

[00:11:13] Speaker 00:
And that's what Mr. Bieber said.

[00:11:15] Speaker 00:
So John Coulter and Mr. Mayorga were outside applicants.

[00:11:20] Speaker 00:
They both worked for the architect of the Capitol.

[00:11:22] Speaker 00:
They both had bass experience.

[00:11:26] Speaker 00:
Mr. Coulter refers to it as bass net.

[00:11:28] Speaker 00:
Mr. Mayorga refers to it just as bass.

[00:11:32] Speaker 00:
Maybe he didn't use the right words.

[00:11:34] Speaker 00:
Maybe he should have said bass net.

[00:11:35] Speaker 00:
Maybe he should have been asked during his interview more particularly about the bass net.

[00:11:40] Speaker 00:
He does attest that he did have bass net experience.

[00:11:43] Speaker 00:
When the bass net went down, Mr. Mayorga assisted the EMCS shop in bringing it up to speed.

[00:11:50] Speaker 00:
Now, Mr. Coulter was also outside of EMCS.

[00:11:55] Speaker 00:
So if you have to be an EMCS to have bassnet, like Mr. Bieber claims, because that's his whole rationale for saying that Mr. Mallorca has no bassnet experience, then how could it be that Mr. Coulter had bassnet experience before he was promoted to EMCS?

[00:12:13] Speaker 00:
All those things can't simultaneously be true.

[00:12:17] Speaker 00:
So either Mr. Bieber is

[00:12:20] Speaker 00:
affirmatively, knowingly lying, or he is so disinterested in Mr. Mayorga as an applicant that he would ignore these things.

[00:12:29] Speaker 00:
And I think that's where the evidence of him calling him caviar instead of Javier

[00:12:35] Speaker 00:
and mocking him, laughing at him when he walks in the room, interrupting him when he speaks, not looking at him during his interview.

[00:12:43] Speaker 00:
And Mr. Wallace also was heard to call Mr. Mayorga caviar.

[00:12:50] Speaker 00:
It's a complete mockery of his ethnicity.

[00:12:54] Speaker 02:
Can we consider that other statement, though?

[00:12:56] Speaker 02:
I mean, it's unsworn.

[00:12:58] Speaker 02:
It's not in an admissible form.

[00:13:00] Speaker 02:
I mean, under Rule 56, how the district court seemed to have

[00:13:05] Speaker 02:
Mr. Molina ruled that Mr. Molina's statement couldn't be considered for that reason, because it was unsworn.

[00:13:11] Speaker 02:
It's just a statement.

[00:13:13] Speaker 02:
There's no declaration attached to it.

[00:13:18] Speaker 02:
And from my looking at it in the appendix, that's what it looked like to me.

[00:13:24] Speaker 00:
Well, I think you're right.

[00:13:31] Speaker 00:
It is not.

[00:13:45] Speaker 00:
You are correct, but I will put forth, Mr. Molina was hesitant to come in and sign a declaration, and I probably should have just taken his deposition by subpoena.

[00:14:00] Speaker 00:
But you do have to consider Javier Mayorga's testimony.

[00:14:04] Speaker 00:
I know the defendant tries to brush that off as conclusory and self-serving, but it's not conclusory.

[00:14:11] Speaker 00:
It's not conclusory at all that he heard

[00:14:14] Speaker 00:
both Mr. Wallace and Mr. Bieber call him caviar to his face.

[00:14:18] Speaker 00:
And that is on page 119 of the appendix.

[00:14:25] Speaker 00:
Mr. Mayorga says specifically, after being asked, have you ever heard Mr. Weber, Mr. Wallace, or Mr. Parker?

[00:14:34] Speaker 00:
Now, Bieber and Wallace are two of the panelists.

[00:14:36] Speaker 00:
Have you ever heard them talk trash about you?

[00:14:39] Speaker 00:
And he says, no.

[00:14:41] Speaker 00:
And then the question is, have they ever made fun of you two directly?

[00:14:45] Speaker 00:
And he said, well, they, and the they has got to refer to those three men, he says, they call me straight out to my face, caviar.

[00:14:54] Speaker 00:
But I'm not a very sensitive man and the aspect somebody coming in my face and doing something, I prefer them to me in my face than in my back.

[00:15:06] Speaker 00:
He's clearly saying that those three have said it to him to his face.

[00:15:13] Speaker 00:
That is completely mocking who he is, and that is evidence that they don't take his candidacy seriously, and that they weren't listening during his interview.

[00:15:24] Speaker 00:
He said that they laughed at him, they smirk when he talks, they look at him like they don't take him seriously,

[00:15:30] Speaker 00:
Meanwhile, he's gotten an education above and beyond what most people in this field have gotten because he knows he has his heavy accent, he has his national origin, he's got to work twice as hard as the American-born white guys.

[00:15:45] Speaker 00:
But even still, they don't give him a chance.

[00:15:49] Speaker 00:
This gentleman has applied for promotions three times.

[00:15:52] Speaker 00:
Mr. Bieber has passed him over without seriously.

[00:15:55] Speaker 00:
Thank you.

[00:15:56] Speaker 00:
Thank you.

[00:15:56] Speaker 00:
Thank you.

[00:15:57] Speaker 04:
Sorry.

[00:15:58] Speaker 04:
We'll have the government.

[00:15:59] Speaker 04:
We'll have you in our body.

[00:16:03] Speaker 03:
Good morning, Your Honors.

[00:16:03] Speaker 03:
May it please the Court?

[00:16:04] Speaker 03:
Johnny Walker on behalf of the Architect of the Capitol.

[00:16:07] Speaker 03:
Your Honor, so much of what my colleague says is simply not supported by the record in this case.

[00:16:12] Speaker 03:
And when you get past characterizations and you look at the record, you see a clear and consistent record that supports summary judgment in this case.

[00:16:21] Speaker 03:
You see a record that supports Mr. Bieber's justification that the reason that he selected Mr. Williams and Mr. Coulter was about qualifications.

[00:16:28] Speaker 03:
Those qualifications start in the vacancy announcement.

[00:16:31] Speaker 03:
These are not post-hoc rationalizations.

[00:16:33] Speaker 03:
The vacancy announcement specifies skills and experience in areas like DDC programming, graphics generation, fiber optic cables, ethernet cables, and network routers and switches, which we know the architect of the capital.

[00:16:49] Speaker 02:
How can someone with an associate's degree in networking not have those skills?

[00:16:54] Speaker 03:
Well, it's not that Mr. Mayorga has no network skills by virtue of his degree.

[00:17:01] Speaker 03:
He did obtain that two-year degree from Stratford University in 2003, which is over a decade prior to the selection.

[00:17:07] Speaker 03:
So he has some networking experience, but what was key to the decision here is that John Coulter

[00:17:15] Speaker 03:
had experience with the specific network technologies that were used by the EMCS office and that would be the responsibility of the selectee.

[00:17:24] Speaker 03:
Ethernet cables, fiber optic cables, he was certified in both.

[00:17:28] Speaker 02:
He didn't work in the same office as the decision maker, right?

[00:17:32] Speaker 02:
He didn't work in the same office as the decision maker.

[00:17:35] Speaker 03:
So Mr. Mayorga works in what's called a jurisdiction-specific office.

[00:17:41] Speaker 03:
There are different buildings as part of the architect of the Capitol's campus.

[00:17:44] Speaker 03:
The Capitol is one of them where he worked.

[00:17:46] Speaker 03:
There's also a central office, the overarching umbrella office of which is project management, I believe it's called.

[00:17:56] Speaker 03:
Mr. Coulter was in that central office, but the specific sub-office that he was applying to, he was not previously in.

[00:18:03] Speaker 03:
Mr. Williams was.

[00:18:04] Speaker 03:
Mr. Williams was already performing the very same responsibilities that would be required.

[00:18:07] Speaker 02:
I guess what I'm getting at is that Mr. Lieber, if I've got his name correct, said that you've only got that vast net experience working in the EMCS office.

[00:18:23] Speaker 02:
And how is it then that Mr. Coulter had that experience if he didn't work in the EMCS office?

[00:18:29] Speaker 03:
Well, you've got to take a little bit more of a complete picture and contextual picture of Mr. Bieber's testimony.

[00:18:35] Speaker 03:
Mr. Bieber was being asked specifically whether or not Mr. Mayorga had any experience working on the level of the building automation system infrastructure that Mr. Bieber's shop works on, which he referred to as the bass net.

[00:18:51] Speaker 03:
And what Mr. Bieber said is Mr. Mayorga does not work on that.

[00:18:54] Speaker 03:
That is limited to my shop.

[00:18:56] Speaker 03:
And so he was contrasting Mr. Mayorga's capital jurisdiction with the central office where he worked, which maintained that higher level infrastructure.

[00:19:07] Speaker 03:
Now, he also testifies just a few pages later in his deposition that Mr. Coulter, by virtue of his engineering position in PPM, had done some work on the bass net aspects of the Capital Visitor Center.

[00:19:21] Speaker 03:
specifically the network equipment, the ethernet cables, and the fiber optic cables, and you also see that listed in Mr. Coulter's resume.

[00:19:30] Speaker 03:
So, I mean, the operative question here is did Mr. Mayorga have any experience?

[00:19:35] Speaker 02:
Did he testify that he worked on the BassNet?

[00:19:38] Speaker 02:
Mr. Coulter?

[00:19:39] Speaker 02:
Mr. Mayorga?

[00:19:39] Speaker 02:
Did Mr. Mayorga testify that he had, that he had helped

[00:19:43] Speaker 03:
What Mr. Mayorga testified is that on at least one instance, he assisted Mr. Bieber's subordinates to solve a problem when the bass nut went down.

[00:19:56] Speaker 03:
What is missing from that testimony is the level of his involvement.

[00:20:01] Speaker 03:
and whether or not Mr. Bieber would have had any knowledge of it.

[00:20:04] Speaker 03:
He testifies assisting Mr. Bieber's subordinates in some unspecified way.

[00:20:08] Speaker 04:
He says that is completely false and Mr. Bieber knows it because I have worked with his team on the bassinet.

[00:20:14] Speaker 03:
The fact that saying Mr. Bieber knows it is an assertion that's not supported by the specifics that follow.

[00:20:20] Speaker 03:
Just because he worked with Mr. Bieber's subordinate in an unspecified capacity at an unspecified level does not mean that Mr. Bieber would have knowledge that he has meaningful experience on the bassinet.

[00:20:30] Speaker 03:
Certainly not the type of experience that would overcome Mr. Coulter's.

[00:20:36] Speaker 04:
How about Johnson's testimony that Mayorga is, quote, the most knowledgeable person

[00:20:41] Speaker 04:
in controls and on the Bass network I've met in my 10 years working for the architect of the Capitol.

[00:20:47] Speaker 03:
So it's not clear that anybody told Mr. Bieber that and it's not clear what exactly we're talking about, which is why, Your Honor, what we're trying to do is... Well, we're talking about the Bass network.

[00:20:54] Speaker 04:
There seems to be... It's clear that we're talking about the Bass network.

[00:20:57] Speaker 03:
Well, there seems to be some disagreement as to exactly what that term, Bass network, delineates.

[00:21:01] Speaker 04:
Yeah, I mean, I don't know which way that cuts because we're talking about whether this should go to a jury or whether it's obvious that it shouldn't.

[00:21:07] Speaker 03:
I think disputed facts go to a jury router.

[00:21:10] Speaker 03:
Disputed words and semantics do not.

[00:21:12] Speaker 03:
And if you get past the semantics and you look at the specifics of this case, there's no dispute about what the building automation system's infrastructure at the architect of the Capitol looks like.

[00:21:23] Speaker 03:
We know that there are a number of components, sensors, and air conditioning units and such at the building-specific level, and that we know that on the greater campus-wide level, that those systems are connected by a network consisting of Cisco routers and switches.

[00:21:37] Speaker 03:
fiber optic cables, ethernet cables.

[00:21:40] Speaker 03:
We know that Mr. Mayorga disclosed no experience with any of those three technologies in his resume.

[00:21:48] Speaker 03:
And the notes from his interview indicate that he disclosed no experience with those three specific technologies that make up what Mr. Bieber referred to as the bassnet.

[00:21:57] Speaker 03:
In fact, each of the three interview panelists specifically noted that he professed a weakness in the area of fiber optic cables.

[00:22:04] Speaker 03:
That's one of the key technologies of the bassnet.

[00:22:07] Speaker 03:
So there's no dispute that Mr. Mayorga has experience with the technologies that make up the part of the building automation systems infrastructure that the selectee would be required to work with.

[00:22:19] Speaker 03:
The only dispute here is what is meant by the term BASSEC.

[00:22:22] Speaker 02:
What are we supposed to do with the testimony about, or the reason, the other reason given that Mr. Mayorga didn't even know what position he was applying for.

[00:22:37] Speaker 02:
which Majorga disputes and which his resume disputes.

[00:22:44] Speaker 02:
Well, his resume listed the precise title.

[00:22:48] Speaker 02:
of the, that was in the vacancy announcement.

[00:22:52] Speaker 03:
I think the key to that, Your Honor, is that it was not provided as a reason for his non-selection.

[00:22:56] Speaker 03:
Mr. Bieber was asked during his deposition specifically what did Mr. Mayorga answer in respect to a specific question, and he said, as I recall, he said in answer to that question that he didn't realize what position he was applying for, and he thought he was applying for an engineering position in PPM.

[00:23:13] Speaker 03:
Mr. Mayorga's resume does note PPM.

[00:23:16] Speaker 03:
But as you say, it does note that an electronics technician position rather than an engineering position.

[00:23:21] Speaker 03:
The key to that, though, is that it wasn't a reason for his non-selection.

[00:23:24] Speaker 03:
It was an answer that Mr. Bieber gave to a question.

[00:23:28] Speaker 03:
And so I don't think that the reason he didn't get the position was a qualifications-based reason.

[00:23:33] Speaker 02:
It wasn't that answer.

[00:23:34] Speaker 02:
There's no indication.

[00:23:35] Speaker 02:
But the jury could fairly find that that reason, that that explanation was false.

[00:23:43] Speaker 02:
taking the evidence in the light most favorable to Mr. Mayorga?

[00:23:47] Speaker 03:
It's not a reason, as I say, Your Honor.

[00:23:49] Speaker 03:
And I don't know that a jury could find it to be knowingly false.

[00:23:53] Speaker 03:
I understand the resume says one thing.

[00:23:55] Speaker 03:
Two interview panelists both independently testified that Mr. Mayorga indicated some confusion about precisely what position he was applying for.

[00:24:03] Speaker 03:
But it's a tangential issue that does not go to the architect of the Capitol's reasons for the selections of Mr. Williams and Mr. Coulter.

[00:24:11] Speaker 03:
There's no indication that they didn't fully consider Mr. Mayorga's candidacy and his skills and qualifications, regardless of the answer he may have given to that question.

[00:24:19] Speaker 03:
And there's nothing that calls the overall reasons given by Mr. Bieber into doubt and to show any pretext.

[00:24:25] Speaker 04:
So I think the way you are articulating it is that there's some confusion about what BASnet mean versus BAS, but there's no confusion that if you look at the underlying aspects that are germane,

[00:24:39] Speaker 04:
I might misstate it, but Ethernet, fiber optics, and Cisco, that he didn't, that Mr. Myorget did not have enough experience with those.

[00:24:49] Speaker 04:
I guess what confused me a little bit is if those are what make up BassNet, if that's an integral part of what makes up experience with BassNet, and he did have experience with BassNet, which, as you say, there's maybe some confusion about, then

[00:25:02] Speaker 04:
the argument would go, he necessarily had experience with those constituent components, i.e., Cisco, fiber optics, and Ethernet.

[00:25:15] Speaker 03:
It's not disclosed anywhere in the record that he had any experience with those, and his resume does not specifically disclose that he had experience with bassnet.

[00:25:23] Speaker 04:
But there's indication in the record that experience with bassnet means experience with those.

[00:25:29] Speaker 04:
It seemed to be the way that people were generally describing it, is that those are constituent components.

[00:25:34] Speaker 04:
of BassNet.

[00:25:35] Speaker 04:
And so if he did have experience with BassNet, I mean, he says he does, he says he did.

[00:25:40] Speaker 04:
The other person, is it Johnson?

[00:25:42] Speaker 04:
I can't remember the name off the end.

[00:25:45] Speaker 03:
There's Mr. Coulter and Mr. Williams are the two other selectees, and Mr. Coulter was the one... No, but I'm talking about evidence that says that my orca has the experience.

[00:25:51] Speaker 04:
And Clinton Johnson says he had experience with BassNet work.

[00:25:55] Speaker 04:
And so if experience with BassNet, which I think is the same as BassNetwork, necessarily entails experience with fiber optics, Cisco, and Ethernet, then he did have the relevant experience.

[00:26:10] Speaker 03:
At least there's an argument he did.

[00:26:12] Speaker 03:
I think the record is pretty clear that he didn't.

[00:26:15] Speaker 03:
I mean, there are certainly, he had experience working on technologies and components that are connected to the bassinet.

[00:26:23] Speaker 03:
And I think this may be why Mr. Mayorga chooses to use that term.

[00:26:26] Speaker 03:
I would say that that's a fallacy of composition, just because you have experience with a part of something does not mean you have experience with the whole of something.

[00:26:35] Speaker 03:
The record is uncontradicted and very clear.

[00:26:39] Speaker 03:
that the overall building automation system infrastructure, whether you want to call the whole thing BassNet or only part of it BassNet, is composed of a network consisting of the three technologies that I have mentioned and then sub-components within each building.

[00:26:54] Speaker 03:
And what the record clearly establishes is that Mr. Mayorga only worked within such a building.

[00:27:00] Speaker 03:
The only specific

[00:27:03] Speaker 03:
experience that he describes with the level of the bass net that Mr. Bieber's shop worked on was some unspecified assistance that he lended to Mr. Bieber's subordinates on an unspecified occasion.

[00:27:17] Speaker 04:
Sounds like a pretty good argument to present to a jury.

[00:27:20] Speaker 03:
Not at all, Your Honor.

[00:27:20] Speaker 03:
I mean, because the question for the jury, the only reason this gets to a jury is that Mr. Bieber knew it.

[00:27:27] Speaker 03:
And if it is such a strong contradiction in the reasons that he gave for not hiring Mr. Mayorga, then it gives rise to pretext.

[00:27:33] Speaker 02:
Respectfully counsel, the man has a degree in networking.

[00:27:38] Speaker 02:
I'm no, well, I have an engineering degree undergrad, but I'm not a computer person.

[00:27:47] Speaker 02:
But I know that ethernet cable is how you've been doing networking in computers for the last 20 years.

[00:27:57] Speaker 02:
So if he has a degree in networking, he knows about ethernet.

[00:28:03] Speaker 02:
So for Mr. Bieber to say that he has no experience in ethernet, when the man has a degree in networking, doesn't ring as even being potentially true under kind of any sort of inference, let alone taking the evidence in the light most favorable to Mr. Viorga.

[00:28:27] Speaker 03:
Your Honor, I think, two things to that.

[00:28:30] Speaker 03:
I don't think, it's not the case that Mr. Bieber's reason for not hiring Mr. Mayor was a stark zero experience in ethernet cables.

[00:28:38] Speaker 03:
I mean, that he has a degree in network from over a decade prior to the selection, but his resume discloses no actual work experience or certifications.

[00:28:46] Speaker 03:
I mean, Mr. Coulter has certifications in each of the three technologies.

[00:28:49] Speaker 03:
Mr. Mayorga listed his certifications, he listed no certifications in any of those three areas, and he listed no work experience in any of those three areas.

[00:28:58] Speaker 03:
While he may have a degree in network, Your Honor, I think that this Court has held that in close cases a reasonable jury will defer to the expertise of the selecting official.

[00:29:08] Speaker 03:
I don't even think it's a close case.

[00:29:09] Speaker 03:
You have Mr. Mayorga with a two-year degree from ten years before this election, and you have Mr. Coulter with extensive work experience, not only in one of the technologies comprising the bassinet, but all three of the technologies comprising the bassinet, and certifications in each area, whereas Mr. Mayorga discloses none, other than the degree.

[00:29:27] Speaker 03:
Thank you.

[00:29:35] Speaker 00:
I know I'm low on time, so I'll be quick and just refer to the record in response to some of the questions that the panel asked.

[00:29:46] Speaker 00:
Mr. Bieber said in his deposition testimony that the alleged confusion that Mr. Mayorga had came out when he asked question number 17 at the interview, which is,

[00:29:57] Speaker 00:
Why do you want to join EMCS?

[00:30:00] Speaker 00:
But if you look at the notes that were taken contemporaneously, both of the other panelists on 385 and 387 of the Joint Appendix wrote down that when Mr. Mayorga was asked why do you want to join EMCS, he said something to the effect of more of a challenge and to use his education more.

[00:30:28] Speaker 00:
Those are contemporaneous notes taken at the time of the interview by the other two panelists.

[00:30:35] Speaker 00:
Why would Mr. Bieber make that up?

[00:30:40] Speaker 00:
Also, Watson, the panelist, testified that network was an add-on skill and that project management was not something that they were seeking.

[00:30:53] Speaker 00:
And Mr. Wallace also said that project management wasn't something they were seeking, yet that was the primary reason given for the non-selection.

[00:31:00] Speaker 00:
I'd also point you to the fact that Mr. Mayorga not only listed his degree on his resume, but he included his transcript.

[00:31:09] Speaker 00:
And Judge Wilkins, maybe you'll understand more about the courses than I do, but I see here that he took courses in routers and switches and network infrastructure design and advanced configuration of routers and switches.

[00:31:24] Speaker 00:
That, to me, again, bolsters your point that he did have the knowledge.

[00:31:30] Speaker 00:
I don't think, actually, that Mr. Beaver even looked at the application because he did say in his testimony that Mr. Mayorga does not have a degree in network, and the other two panelists also wrote that down.

[00:31:41] Speaker 00:
So if there are no other questions, I'll leave you with that.

[00:31:46] Speaker 04:
Thank you, counsel.

[00:31:46] Speaker 00:
Thank you, counsel.

[00:31:47] Speaker 00:
Thank you very much.

[00:31:48] Speaker 04:
The case is submitted.