[00:00:44] Speaker 01:
Whenever you're ready, Mr. Goldstein.

[00:00:45] Speaker 04:
Good morning.

[00:00:52] Speaker 04:
My name's Jerry Goldstein.

[00:00:53] Speaker 04:
I represent the appellate, Tim Jeffries, in this case.

[00:00:58] Speaker 04:
The case involves seven non-selections for GS14 positions in the Bureau of Justice Assistance that Mr. Jeffries applied for between 2011 and 2014.

[00:01:11] Speaker 04:
and he contends that the non-selections were due to race and or sex discrimination or retaliation.

[00:01:18] Speaker 04:
The cases necessarily arose at different times over those three years and were parceled out to different EEOC offices around the country for processing.

[00:01:32] Speaker 04:
The EEOC wouldn't let us consolidate them, so the only efficient way to handle them was to

[00:01:37] Speaker 04:
put them together here and bring them as a single case in this court.

[00:01:44] Speaker 04:
Then the agency filed a motion for judgment on the pleadings or alternatively for summary judgment.

[00:01:52] Speaker 04:
Before there was an opportunity for us to take any discovery, we filed an opposition

[00:02:00] Speaker 04:
and a motion for relief under Rule 56D.

[00:02:06] Speaker 04:
The court denied both of those on November 15, 2016.

[00:02:14] Speaker 04:
We appealed the district court decision, and while that appeal was pending,

[00:02:20] Speaker 04:
I received an unsolicited email from the president of the local union that handles the OJP, Office of Justice Programs, employees, which contained allegations against an individual named Edison Aponte, who was the associate deputy director.

[00:02:40] Speaker 01:
We're familiar with the evidence of that.

[00:02:43] Speaker 01:
I think the question I have is,

[00:02:48] Speaker 01:
partly just to clarify what we have before us now.

[00:02:50] Speaker 01:
Do you have evidence of racial discrimination or sex discrimination apart from the evidence of retaliation or is the focus really of the case now on retaliation?

[00:03:04] Speaker 01:
And if it's race and sex discrimination.

[00:03:05] Speaker 04:
No, I think it's more than retaliation because there was evidence that Mr. Aponte

[00:03:17] Speaker 04:
was engaged in sexual harassment and favoring some of the females that he preferred for these positions, which involved even giving them questions that were going to be asked in the interviews.

[00:03:42] Speaker 04:
saying he could help them get promoted within your justice assistance.

[00:03:48] Speaker 02:
And, um, does seems that Mr Jeffries does not meaningfully contest that the other employees who were selected instead of him were were much more qualified.

[00:04:03] Speaker 02:
There doesn't seem to be any any real evidence that that is untrue.

[00:04:08] Speaker 02:
and the Department of Justice suggested that they were more qualified, and there doesn't seem to be any evidence.

[00:04:12] Speaker 04:
Well, but he doesn't have to prove that the selectee was, he was more qualified than the selectee in order to state a case of discrimination.

[00:04:22] Speaker 04:
There's other ways of proving discrimination.

[00:04:24] Speaker 02:
Well, of course.

[00:04:26] Speaker 04:
And that's what we're left with here, because there was no discovery.

[00:04:31] Speaker 04:
So that was how he went about showing, for example,

[00:04:37] Speaker 04:
subjectivity of the scoring in places, the lack of notes to document what actually occurred in the interview processes, and so forth.

[00:04:53] Speaker 04:
So yes, there is other evidence that we were able to gather that, despite lack of discovery,

[00:05:06] Speaker 04:
there was discrimination involved or could have been involved apart from any evidence of was he better qualified or not.

[00:05:19] Speaker 04:
And then the thrust of the district court decision and of the agency's position is, as you say, that the selectees were

[00:05:31] Speaker 04:
better qualified, and they gave better interviews, but if they were given questions in advance and helped to prepare, yeah, sure, they would have been in a better position to answer the questions at an interview than Mr. Jeffries was.

[00:05:46] Speaker 04:
So I think that those factors all matter when you're considering what the agency's position in terms of

[00:05:59] Speaker 04:
qualifications of selectee versus qualifications of Mr. Jeffries is concerned.

[00:06:05] Speaker 04:
So.

[00:06:05] Speaker 01:
Mr. Goldstein, can you help me understand the nature of this priority consideration as you understand what it conferred?

[00:06:16] Speaker 01:
I understand there's no dispute that it confers an entitlement to the holder to be considered

[00:06:28] Speaker 01:
before other candidates and indeed to be considered before other candidates are considered.

[00:06:35] Speaker 01:
And I see in the record where you pointed to evidence that that was not in fact heeded.

[00:06:40] Speaker 01:
But further than that, is the entitlement that once the person is looked at, if they are qualified, they should be hired?

[00:06:50] Speaker 01:
Or that even a qualified person

[00:06:54] Speaker 01:
could just be passed over and put into the general pool?

[00:06:57] Speaker 04:
Well, the way it's supposed to work is that the person with priority consideration is supposed to be interviewed by the selecting official and gets a, is supposed to get a decision up or down before anybody else is considered.

[00:07:23] Speaker 01:
And does that mean before a slate is put together of other candidates or before that slate is given to the decision maker?

[00:07:31] Speaker 01:
Or do we have any reason to know the answer?

[00:07:35] Speaker 04:
In this case, it's undisputed that the selecting official was never involved in the selection.

[00:07:44] Speaker 04:
The panel made the decision.

[00:07:46] Speaker 01:
And is that critical?

[00:07:48] Speaker 01:
I mean, if the panel are the delegates of the selecting official, then it isn't the point that whoever's making the selection should do it on its own terms for the person with priority consideration, or am I wrong about that?

[00:08:02] Speaker 04:
Well, in this case, the selection

[00:08:06] Speaker 04:
the panel was there to make recommendations and was not supposed to be considering other applicants.

[00:08:13] Speaker 01:
Right, I understand that's a little bit of a different point though from your point that the selecting official didn't interview him at all.

[00:08:20] Speaker 01:
So if we put aside whether the selecting official under priority consideration could delegate to a panel,

[00:08:30] Speaker 01:
then your position is that that was... Well, according to the cases, that's not the way it's supposed to work.

[00:08:37] Speaker 01:
The cases say it's the selecting official supposed to do the interview, even if that's not the agency's ordinary... And make a decision up or down on this person.

[00:08:44] Speaker 04:
And then they can go on and talk to whoever else they want to.

[00:08:47] Speaker 01:
And your best case for that the selecting official is supposed to do it is which?

[00:08:52] Speaker 01:
That the selecting official, rather than the delegates at the selecting official.

[00:08:56] Speaker 04:
Right.

[00:08:58] Speaker 04:
It's not even clear who the selecting official was in this case.

[00:09:02] Speaker 01:
But you say the case is made clear that the selecting official is important rather than delegates of the selecting official.

[00:09:07] Speaker 01:
And I'm not aware of cases that actually treated that issue.

[00:09:10] Speaker 01:
So I was asking you, what case are you thinking of?

[00:09:13] Speaker 04:
Yeah, we cited the, excuse me for one second here.

[00:09:31] Speaker 04:
the Perry versus the Department of the Army and Pope.

[00:09:37] Speaker 01:
And is it your position that the defects in Perry's consideration are themselves also an adverse employment action apart from whether the actual promotion for which he was applying was effective?

[00:09:52] Speaker 02:
Do you think that a failure to give priority consideration is categorically an adverse employment decision, or that it's just an adverse employment decision in this context?

[00:10:05] Speaker 04:
I think it's, whether in this context or not, I think it's considered an adverse employment action.

[00:10:17] Speaker 02:
Well, why isn't the failure to give priority consideration here more like the facts in Bridgeforth and Douglas versus Donovan?

[00:10:27] Speaker 04:
Well, Bridgeforth was not a priority consideration case, as I recall, as opposed to, for example, Zervas and Singletary that we cited that were, and where

[00:10:47] Speaker 04:
In those cases, it was recognized to be an adverse action to fail to follow priority considerations procedures.

[00:11:02] Speaker 02:
But I mean, Bridgeforth and Douglas are decisions of this court.

[00:11:10] Speaker 04:
Richforth involved a time-off award.

[00:11:14] Speaker 04:
It was not a failure to follow priority considerations that the agency had already said it was going to follow.

[00:11:22] Speaker 04:
So that's why it's distinguishable from the cases we cited, Zervas and Singletary.

[00:11:30] Speaker 03:
Can I ask you, priority consideration applies to similar positions, right?

[00:11:39] Speaker 03:
Yes.

[00:11:40] Speaker 03:
And I didn't really see much of an explanation as to how or why this is a similar position than the position that the priority consideration.

[00:11:55] Speaker 04:
In this case, the agency agreed to use priority consideration for making the selection.

[00:12:10] Speaker 04:
It was kind of a given at the very start of the process for the selection for this position.

[00:12:17] Speaker 03:
This is the 2011 position you're talking about.

[00:12:20] Speaker 03:
The first one.

[00:12:21] Speaker 03:
Yes, the first one.

[00:12:23] Speaker 03:
So your view is that you didn't need to show any similarity because the agency conceded that.

[00:12:33] Speaker 04:
Right.

[00:12:34] Speaker 04:
They said they were going to follow it for them.

[00:12:39] Speaker 04:
as part of the process.

[00:13:00] Speaker 00:
Morning, Ms.

[00:13:00] Speaker 00:
Lyons.

[00:13:01] Speaker 00:
Good morning.

[00:13:02] Speaker 00:
May it please the court, Jane Lyons, on behalf of the Department of Justice.

[00:13:06] Speaker 00:
I'd like to pick up where the court's been just discussing the priority consideration issues in this case.

[00:13:13] Speaker 00:
First of all, the priority consideration cases on which my friend on the other side relies are priority consideration from different agencies.

[00:13:22] Speaker 00:
The agency in this case, the Department of Justice, has a policy, it's merit promotion policy, has some

[00:13:29] Speaker 00:
provisions for priority consideration.

[00:13:32] Speaker 00:
The policy appears at Joint Appendix, page 95.

[00:13:35] Speaker 00:
And it is important to understand that its priority consideration, it is not guaranteed placement.

[00:13:42] Speaker 00:
So in response to the question of what do you get, you get, when it's normally being applied, you get first

[00:13:53] Speaker 00:
interview and a decision up or down on your candidacy before more things happen.

[00:13:59] Speaker 01:
And that doesn't seem to be disputed, at least that far.

[00:14:02] Speaker 01:
Paley himself says that the priority consideration candidate needed to be considered and a decision reached before receiving information on or interviewing anyone else.

[00:14:12] Speaker 00:
The problem here, of course, is that as Judge Wilkins' question just alluded to, the system works when the HR department identifies a vacancy open

[00:14:22] Speaker 00:
they're about to announce, and they identify it as sufficiently similar, and then they can give the priority consideration in the ordinary course.

[00:14:30] Speaker 00:
That's not what happened here.

[00:14:32] Speaker 01:
Right.

[00:14:32] Speaker 01:
In fact, this job was open and the candidate was wondering, Sir Jeffreys was wondering, why he wasn't given priority consideration for it.

[00:14:39] Speaker 00:
Well, he asked.

[00:14:40] Speaker 00:
He asked about the priority consideration and whether he could use it.

[00:14:43] Speaker 00:
There was no

[00:14:45] Speaker 00:
dispute about whether the position was similar, but that doesn't mean the agency conceded its similarity.

[00:14:50] Speaker 00:
The agency simply said, if you want to have priority consideration, we will do that the best we can under the circumstances that we have.

[00:14:58] Speaker 00:
And that is exactly what happened.

[00:15:00] Speaker 00:
So it would be

[00:15:02] Speaker 00:
unfair, unusual to say that granting his request to get priority consideration and introducing the sort of procedural regularity to the extent that there's any, and it's a small delta.

[00:15:15] Speaker 00:
The process hasn't gotten very far along.

[00:15:17] Speaker 00:
At the time, Mr. Jeffries is interviewed by the panel and given his decision that he is not going to get the position through priority consideration.

[00:15:25] Speaker 00:
And they go on with the process.

[00:15:26] Speaker 01:
And he claims and points to evidence, notwithstanding the lack of discovery, that

[00:15:32] Speaker 01:
someone else was in fact interviewed before he was, and the panelists themselves seemed to acknowledge that they received information about other candidates before they made the decision on him, and in fact, that they compared him with the other candidates, which I gather in your understanding of how priority consideration ordinarily works is not kosher too well.

[00:15:57] Speaker 00:
for lack of a better term, it would generally speaking not be kosher because it would be following a different process.

[00:16:03] Speaker 00:
But to the extent these are small, irregular procedural irregularities that are introduced by Mr. Jeffries himself.

[00:16:12] Speaker 01:
And... So what's your position on whether the record in fact shows that others were considered, at least their paper applications and qualifications were considered,

[00:16:25] Speaker 01:
along with before a decision was actually made finally on Jefferies.

[00:16:30] Speaker 00:
My position on the record on that is that the record does not support that.

[00:16:34] Speaker 00:
Notwithstanding what the panelists themselves said.

[00:16:38] Speaker 00:
The panelists say, they're basically, I think those statements are best construed in the light most favorable to Jeffries to acknowledge that they're aware of other applicants and who the other applicants are.

[00:16:49] Speaker 00:
Let's face it, this is not a big agency.

[00:16:52] Speaker 00:
They know these people.

[00:16:53] Speaker 00:
So they know who's available, perhaps.

[00:16:56] Speaker 00:
They haven't said they've sat down and gone through or graded their applications.

[00:17:00] Speaker 00:
The facts are not strong.

[00:17:02] Speaker 01:
They're making comparisons and then there's categorical denial that they've made comparisons.

[00:17:10] Speaker 00:
Yes, there's some of both.

[00:17:11] Speaker 01:
And he points to that.

[00:17:12] Speaker 01:
And it's your position that he's not entitled to any discovery into any of that.

[00:17:18] Speaker 00:
My position is that any discovery into that wouldn't change the outcome because it doesn't cast doubt ultimately on the material facts, which is how did he do in the interview that he gave?

[00:17:31] Speaker 00:
He doesn't offer a contrary narrative that he did a great job and blew that interview out of the park and that he deserved the job.

[00:17:37] Speaker 00:
He doesn't make that claim.

[00:17:38] Speaker 01:
It's a little premature for him to offer a narrative when he hasn't had an opportunity to cross-examine the decision-making officials.

[00:17:45] Speaker 01:
I'm unaware of any

[00:17:47] Speaker 01:
employment discrimination case in which zero federal court discovery was authorized.

[00:17:54] Speaker 01:
56D request an outline for discovery was offered and the district court denied it and we upheld it.

[00:18:04] Speaker 01:
Are you?

[00:18:05] Speaker 01:
I'm not talking about marginal further discovery that someone requests, but where out of the box there's no Rule 26F discovery conference, there's no mandatory initial disclosures, there's no discussion with the district court what the discovery plan should be.

[00:18:22] Speaker 01:
And there's a motion filed, plaintiff says, wait, I haven't had the most basic information about cross-examining these very people who I named as defendants before in an EEO complaint.

[00:18:35] Speaker 01:
I think maybe they might have a retaliatory motive against me.

[00:18:40] Speaker 01:
Instead, the district court says, oh, but prima facie, what they say is reasonable.

[00:18:43] Speaker 01:
Sorry, no discovery.

[00:18:45] Speaker 01:
Any case that we've ever decided that's close to that?

[00:18:47] Speaker 00:
Yes, Your Honor.

[00:18:48] Speaker 00:
I'm not certain that there's absolutely no discovery, but I would point the court to Dunning versus Quandor in 2007 in which, and then that case cites Strang

[00:18:57] Speaker 00:
versus U.S.

[00:18:58] Speaker 00:
Arms Control and Disarmament Agency from 1989 was saying that the desire to test or elaborate with the decision makers about their reasons in a vague way is not enough to require discovery without reason to question their veracity.

[00:19:13] Speaker 00:
And here we don't have a reason to question veracity because he doesn't say he did an outstanding job in the interview.

[00:19:21] Speaker 03:
So let me make sure I understand your position.

[00:19:24] Speaker 03:
When you file Rule 56D motion, you have to not just say, we are seeking discovery about the interview notes and other documentation and depositions about how the interviews went.

[00:19:45] Speaker 03:
You also have to attach a declaration saying that the interview went great and I was perfect in order to obtain relief.

[00:19:58] Speaker 00:
No, I wouldn't say it that way.

[00:19:59] Speaker 00:
What I would say is that the Rule 56D affidavit itself describing what particular discovery needs to be adduced to be able to oppose summary judgment has to be read in the context of the summary judgment opposition, which is filed simultaneously, and explains and identifies what the material facts of the case are through the way the case is being presented.

[00:20:24] Speaker 03:
But here, let me just tell you what I'm

[00:20:27] Speaker 03:
concerned about, so you can tell me why I shouldn't be concerned about it.

[00:20:35] Speaker 03:
The reasoning given for at least some of the selections, including the 2011 selection, is that he did do well in the interview.

[00:20:44] Speaker 03:
He took his jacket off, he didn't, you know, seemed unprofessional, very subjective.

[00:20:50] Speaker 03:
And so at JA 890, I think it is, it's part of the 56D motion.

[00:21:04] Speaker 03:
He says, I want to take discovery

[00:21:08] Speaker 03:
because I want to basically find out from the notes, et cetera, kind of contemporaneous evidence about what happened during these, during my interviews and the other interviews.

[00:21:25] Speaker 03:
So I guess there are, there were, he did get some information about his interviews.

[00:21:30] Speaker 03:
There were some notes about his interview.

[00:21:33] Speaker 03:
But there's nothing that he received about the other interviews.

[00:21:38] Speaker 03:
And for all we know, that the person who was selected, there's a note that says that they took off their jacket too.

[00:21:48] Speaker 03:
So I guess the concern that I have is that when a very subjective reason is given as the legitimate nondiscriminatory reason, and it has to do with the nature of what happened during the interview,

[00:22:07] Speaker 03:
Why is it too much to ask for the plaintiff to give me notes of all the interviews?

[00:22:15] Speaker 00:
As an initial matter, Your Honor, I believe he does have at least the interviews of the successful candidates, Ms.

[00:22:21] Speaker 00:
Womack and Ms.

[00:22:21] Speaker 00:
Fulton-Jones for that non-selection.

[00:22:23] Speaker 00:
And with regard to the subjectivity of taking off the jacket, which was perceived to be unprofessional, that's only one of several reasons

[00:22:31] Speaker 00:
that the June 2011 memo and the July 29 letter to Mr. Jeffries explained.

[00:22:39] Speaker 00:
And the other reasons are more concrete, if you will.

[00:22:42] Speaker 00:
He gave incomplete or insufficient answers to demonstrate the ability to do the job.

[00:22:46] Speaker 00:
He introduced a written document into the process.

[00:22:49] Speaker 00:
He brought it in.

[00:22:49] Speaker 00:
It wasn't a writing sample per se, but he brought it in.

[00:22:52] Speaker 00:
and it had some grammatical or spelling errors that were less than professional.

[00:22:57] Speaker 00:
So those are more concrete reasons and Miss Reed, who was on the interview panel, said his interview lacked depth and it was solely focused on work with the drug courts program and didn't translate into the full range of skills needed to manage state policy advisors.

[00:23:11] Speaker 00:
She said he never mentioned any of his grants experience and this is a supervisory grant program manager position.

[00:23:18] Speaker 00:
So it goes well beyond the unprofessional attire

[00:23:21] Speaker 00:
issue that I would agree is somewhat subjective.

[00:23:24] Speaker 00:
And if there were only that, it would be one thing.

[00:23:26] Speaker 00:
This is very much not that case.

[00:23:29] Speaker 01:
So you mentioned Dunning v. Squander.

[00:23:32] Speaker 01:
I think the other case you mentioned was a FOIA case as a Title VII case in which discovery was not allowed.

[00:23:38] Speaker 01:
But there, I don't think that there was a Rule 56, it was F at that time, affidavit filed at all.

[00:23:44] Speaker 01:
The plaintiff

[00:23:45] Speaker 01:
forfeited the right to seek discovery in that case, and here we have a very different situation.

[00:23:50] Speaker 01:
I mean, if you just zoom out and think about it, the plaintiff has a burden in this area of law to prove the motive of the defendant's agents.

[00:24:03] Speaker 00:
Yes, your honor.

[00:24:04] Speaker 00:
That's ultimately true.

[00:24:05] Speaker 00:
Right.

[00:24:05] Speaker 01:
But in this case... And here we have, unlike many of the areas of law that this court deals with, where we routinely get threshold cross motions for summary judgment on an administrative record, that's not the administrative scheme we have here, right?

[00:24:18] Speaker 01:
We have de novo responsibility to develop the case in the federal court.

[00:24:23] Speaker 00:
Yes, but that is after an exhaustion process in this case that resulted in the provision of hundreds of pages of documents.

[00:24:31] Speaker 01:
There's no dispute, however, that there were no depositions taken and that the key issue is whether these deciding officials, recommending officials, were acting in a retaliatory manner.

[00:24:44] Speaker 01:
And we don't have much because they haven't been deposed.

[00:24:47] Speaker 01:
What we do know is that two of them were among the people that he had named

[00:24:53] Speaker 01:
not so long ago in an EEO complaint that was resolved.

[00:24:58] Speaker 01:
And we know that later there was some pretty unprofessional

[00:25:04] Speaker 01:
email exchange among various supervisory officials laughing about the prospect that this individual would be promoted in the agency.

[00:25:17] Speaker 01:
We also know, and there's not a connection drawn because there has been an opportunity to ask anybody whether they've talked to her, that Ms.

[00:25:25] Speaker 01:
Ball had a self-professed

[00:25:27] Speaker 01:
to get rid of Mr. Jeffreys because, and it was tied to his race and the fact that she didn't think that he had been qualified in the first place.

[00:25:37] Speaker 01:
So we don't know whether this is all gonna add up, and indeed in other cases where discovery is allowed, where we've remanded for discovery under 50, 60, in the end the defendant prevails, but as a matter of process,

[00:25:54] Speaker 01:
I want to hear your best defense of why that process isn't just contrary to the basics of how we run a case in the federal courts.

[00:26:04] Speaker 00:
I'm happy to respond.

[00:26:05] Speaker 00:
There were a lot of parts to that question, so I'm going to need a little time.

[00:26:09] Speaker 00:
As a principal matter, my answer is Rule 56 of the Federal Rules of Civil Procedure places the district court in the

[00:26:20] Speaker 00:
function of having to decide that issue, whether discovery is warranted.

[00:26:24] Speaker 00:
That gives the court the ability to decide the issue, and it tells it how to do it.

[00:26:29] Speaker 00:
And that's a point that was made as sort of the fundamental answer to your, the most basic answer to your question.

[00:26:36] Speaker 00:
That was made in Strang versus US arms control in that case.

[00:26:42] Speaker 00:
And in that case, again, the court said failing to say concretely why

[00:26:51] Speaker 00:
Well, I don't want to talk about strength.

[00:26:52] Speaker 01:
In these Title VII cases... The Declaration said discovery would be invaluable in this case and would give the clinic an opportunity to test and elaborate the testimony already entered period.

[00:27:03] Speaker 01:
That's not what we have here.

[00:27:04] Speaker 01:
We have

[00:27:05] Speaker 01:
a lawyer explaining what anybody who's litigated in any of these cases knows, which is that you need to probe the stated reasons.

[00:27:15] Speaker 01:
You need an opportunity to probe that.

[00:27:17] Speaker 01:
And this plaintiff has had zero opportunity, and I think has done the outlining that Rule 50-60 requires of how that might go forward.

[00:27:26] Speaker 00:
I respectfully disagree, Your Honor.

[00:27:28] Speaker 00:
The 50-60 affidavit in this case is generic to any Title VII case with

[00:27:34] Speaker 00:
any kinds of adverse actions.

[00:27:36] Speaker 00:
And the kind of boilerplate language does not meet the standard in convertino to identify with particularity what facts are there and why they aren't available.

[00:27:46] Speaker 00:
Yet no discovery has, I mean no depositions were taken, but scorned statements were given.

[00:27:50] Speaker 00:
And this court's decision in Dunning says basically the hope for a Perry Mason moment during those depositions and their recreation of the moment by moment, play by play is not necessary

[00:28:02] Speaker 00:
And summary judgment can be entered in cases with less than that record.

[00:28:06] Speaker 00:
That's also another case made in Richard and in Smith.

[00:28:10] Speaker 00:
And I would point out that we cited all these cases in our argument and our brief, and the appellant made no response to those arguments in his reply.

[00:28:18] Speaker 00:
So under Taylor versus FDIC, the court could deem that issue conceded.

[00:28:23] Speaker 00:
Obviously, the questioning of the panel doesn't suggest it would, but it could.

[00:28:29] Speaker 00:
And Convertino, the only case on which they rely, is a very different situation.

[00:28:34] Speaker 00:
I'm not going to get into it with my red light on, but if I could briefly respond to some of the other things you said, Judge Pillard.

[00:28:42] Speaker 00:
The knowledge alone of the officials and many of the officials involved in these applications were aware of Mr. Jeffrey's prior protected activity, but Jones versus Bernanke says that's not enough by itself to get you on to pass summary judgment.

[00:28:57] Speaker 00:
The joking email, unprofessional I think was your word, I called it the joke email, between Mr. Troutman and Mr. Farley, I always want to call him Farley, but it's Farley.

[00:29:09] Speaker 00:
is an isolated incident.

[00:29:11] Speaker 00:
It has nothing to do with any of this.

[00:29:16] Speaker 00:
It's a moment of levity.

[00:29:17] Speaker 00:
It doesn't refer to his protected activity or his gender or his race.

[00:29:21] Speaker 00:
It would be too much to place any kind of inference on that.

[00:29:26] Speaker 00:
And as for Ms.

[00:29:27] Speaker 00:
Ball and this, what you call the campaign to get rid of Mr. Jeffries, I think that's a little strong in light of the evidence, but Ms.

[00:29:33] Speaker 00:
Ball played absolutely no role in any of these selections.

[00:29:38] Speaker 00:
Again, not enough to create a genuine dispute of material fact, even if everything Mr. Jeffries wanted to get in discovery turned out just the way he hoped.

[00:29:48] Speaker 01:
Well, if it turned out just the way he hoped, he would have plenty of material fact.

[00:29:52] Speaker 00:
Well, we can't anticipate direct evidence and admission.

[00:29:56] Speaker 00:
We can't.

[00:29:57] Speaker 00:
Reasonably.

[00:29:57] Speaker 00:
We can't.

[00:29:58] Speaker 00:
If there are no further questions, I would ask that the judgment be affirmed.

[00:30:02] Speaker 00:
Thank you.

[00:30:05] Speaker 00:
Thank you.

[00:30:09] Speaker 01:
Mr. Goldstein, you've used your time, but we'll give you a couple of minutes for a rebuttal.

[00:30:14] Speaker 04:
I'll make it quick, thank you.

[00:30:18] Speaker 04:
Just a few points.

[00:30:19] Speaker 04:
The priority consideration in the BJA's own regulations speaks directly to consideration by the selecting official.

[00:30:30] Speaker 04:
It's not just in the couple of cases that we cited as the standard procedures that all agencies follow.

[00:30:38] Speaker 04:
We also noted in our brief that the agency cited something like 20 cases where summary judgment had been granted to the employer.

[00:30:52] Speaker 04:
But in essentially all of those cases, the plaintiff had gotten discovery, even though it may have ultimately lost on summary judgment.

[00:31:05] Speaker 04:
It's just the norm of the way these cases are handled, especially because the documents are usually in the possession of the employer.

[00:31:13] Speaker 04:
You need discovery to get them.

[00:31:17] Speaker 04:
And then the subjective reasons that we talked about, suit jacket and the memo and so forth, those were not reasons put forth in the rejection letter that Jeffrey's got.

[00:31:32] Speaker 04:
Those were after the fact.

[00:31:34] Speaker 04:
litigation positions that the agency asserted.

[00:31:40] Speaker 04:
And finally, I just – our Rule 56D motion was not generic.

[00:31:48] Speaker 04:
It was specific to the things we felt we needed to find out about and with depositions and documents to prove our case.

[00:32:00] Speaker 01:
Thank you.

[00:32:03] Speaker 01:
Okay?

[00:32:08] Speaker 01:
Case is submitted.