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Case number 18-5315, Debra Stowe Appellate vs. William P. Barr, Attorney General, U.S.

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Department of Justice.

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Ms.

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Hutter for the appellate, Mr. Shanker for the appellate.

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Good morning, Your Honors.

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May it please the Court, on behalf of Appellant Deborah Stowe, my name is Susan Huda from the law firm of Outman Golden.

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This appeal presents two questions for the Court to decide.

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The first is whether a reasonable jury could find that Ms.

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Stowe was substantially better qualified for the division director position than the younger male selectee, Mark Green.

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If, as we argue, a jury could so find, this was all the evidence that Ms.

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Stowe needed to survive summary judgment and present her claims to a jury.

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Second, even if a jury were to conclude that Stowe was not substantially better qualified than Mr. Green, could that same jury find in her favor based on her superior qualifications combined with the other evidence of discrimination and pretext in this record?

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Again, we argue that the answer is yes, and thus there are at least two evidentiary paths by which a jury could find discrimination in this case.

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Regarding Stowe's evidence that she was substantially superior, or she was substantially better qualified than Mr. Green, perhaps the most compelling evidence of her substantially superior qualifications was that she had been performing most, if not all, of the newly revised division director responsibilities for many years.

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The selectee, Mark Green, testified that once he became division director, about 75% of his time was spent on responsibilities that he took over from Ms.

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Stowe.

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When you say newly revised, wasn't it sometime after Mr. Green took on the job that, for example, the grant-making responsibilities were taken away?

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That wasn't clear at the time of this promotion decision, was it?

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On that aspect, you're right, Your Honor, but what I refer to is that there was a division director position that a gentleman named Mr. Hart held from 2010 to 2014, and prior to the 2014 selection, Mr. Tillery actually rewrote that job description.

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The selecting official, Mr. Tillery, told his supervisors that the division director vacancy provided him with an opportunity to quote unquote regrade Stowe's position.

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A reasonable jury could find here that that's exactly what he did.

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It is undisputed that all of Ms.

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Stowe's GS-15 responsibilities were transferred over to the division director position.

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These responsibilities included, at a minimum, Ms.

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Stowe's oversight of the Division's standards development and standards testing programs, as well as her service on the Interagency Committee on Standards Policy, or what we're calling our briefs, the ICSP.

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That's interesting.

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The way you just put it, you don't have a discriminatory demotion claim in the case, do you?

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And you're right, Your Honor, but we could.

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I mean, in theory, you could argue that that was an effective demotion, the failure to select her.

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And of course, Ms.

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Stowe testified consistent with Mr. Green that once the selection happened, she was left with almost nothing to do.

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And it is undisputed here that Stowe's performance of these responsibilities for year over year was extraordinary.

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Stowe didn't just successfully oversee the standards development and testing programs.

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These programs didn't even exist at the time Stowe joined the division.

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Stowe's supervisors credit her with creating those programs, programs they repeatedly described as revolutionary and a gold standard.

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In contrast, Green had only worked on a couple of aspects of those programs for a couple of years under Stowe's direction.

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Indeed, a jury could find Stowe substantially better qualified with respect to every aspect of that division director role.

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As for service on the ICSP, the interview panel actually concluded that Green wasn't qualified to serve on the ICSP and that he shouldn't even be interviewed for that reason.

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It was only due to an internal policy and the strength of Stowe's own application that got him to the interview stage at all.

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that you had two theories.

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And I think what you said was that even if looking at the record, we couldn't conclude that she was substantially or significantly more qualified, if it was just close, you still have a path to victory here, right?

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That was what you told us.

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Correct.

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And I'd like to hear you talk about that a little bit, and specifically

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your argument that Tillery designed the selection process and the questions to disadvantage the plaintiffs.

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Could you talk about that a little bit?

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Absolutely, Your Honor.

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On the second path to a finding of discrimination, Tillery, who I note the district court described the evidence that Ms.

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Stowe presented,

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A reasonable jury could find that he had demonstrated pernicious sexism toward Ms.

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Stowe and other women in the divisions.

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He orchestrated this entire selection process.

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He rewrote the job description, selected the panelists.

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drafted and weighted the interview questions.

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Well, that would be, oh, never mind.

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I was about to say, up until your last phrase, that would all be OK if the questions were objective, correct?

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That's why I asked you to focus on the question, your allegation that he designed the questions to disadvantage the plaintiff here.

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So you're absolutely right.

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That's critical to your case.

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It is absolutely critical.

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That allegation.

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It is absolutely critical to our case and finding a pretext and our allegation that it was not administered fairly.

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You're absolutely right.

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These questions asked the candidates to quote unquote describe a situation in which you have.

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And then it went on to

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provide even a more watered down solicitation of information that a reasonable jury could find was designed to distract from Stowe's superior qualifications.

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What would a question look like that enabled her to demonstrate her superior qualifications?

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What would that question look like?

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So, for example, discuss in detail your experience running a standards development and standards testing programs.

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How much actual supervisory responsibilities have you performed in the past?

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What interagency executive level committees have you ever served on, if any?

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Wouldn't the government's response to that be, well, we can find all that information in the

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in the papers, in her application.

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We know her history.

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What these four or five questions are designed to do is to give us a sense of how she would actually behave in a decision-making process.

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Well, you know, first of all, I think a jury could look at these as reasonable questions, and I can imagine they're

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not you know to ask for one example is not per se as a matter of law illegal we don't argue it is but his the evidence of his sexism and the multiple means by which this process was designed to disadvantage her and it wasn't simply the phrasing of the questions that was one important aspect but not the entire aspect.

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So you talk about the

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questions and their administration as key.

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I found it striking in reading the record that in hiring Mr. Hart, is that prior?

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Correct.

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Over Ms.

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Stowe that Mr. Tillery did not use this sort of bifurcated process where you meet a threshold of qualification and then it's all based on the interview.

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And my sense was that Mr. Hart was not a particularly charismatic

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candidate and then faced with someone quite different, I thought this was part of your case, faced with someone quite different that he wished to promote who was quite junior but maybe more of a salesman, that it becomes a threshold and then interview only.

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But I heard you almost to disavow that as part of

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No, Your Honor, we don't disavow that, right?

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When you read the Tillery's 2010 selection memo, the memo justifying his rationales for picking Hart.

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First of all, he relies predominantly on Hart's supervisory experience and Stowe's relative lack in that area.

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Of course, Wright's house, Stowe, in fact, had quite substantially greater responsibilities in the division, but he doesn't

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There's no reference that this decision was based exclusively on relative interview performance.

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And the interview performance isn't even mentioned in that selection memo at all.

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So you're right, Your Honor.

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We argue that that is evidence, again, this totality of evidence from which we believe the jury could find.

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the supposed decision to rely exclusively on interview performance here, quite suspect.

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Can you describe a little bit about what you understand the job to be?

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There were a couple of these criteria.

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I found it really hard to tell the difference between there's one that's technical and one that's standards.

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You and we both.

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So the primary responsibilities here are the management of standards development and the standards testing programs.

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So if I can use an example, I think it's the easiest.

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So what are the specifications that a bulletproof vest has to meet to meet the Department of Justice standards?

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That's the standards development program.

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They issue a standard that tells manufacturers and law enforcement what are the specifications.

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the standards testing programs, which includes this word conformity assessment that you see in our briefs, is the manner in which the Department of Justice determines whether a manufacturer, once they've made this bulletproof vest, whether it does in fact comply with those standards.

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It's testing to make sure that the product is as the manufacturer represents.

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This was the majority of its job, and we get

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In the briefs, the lawyers tend to silo the various issues.

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But running those two programs for as long as Ms.

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Stowe did, that involved central responsibilities involving grants management, for example.

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That wasn't separate.

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Those were $30 million in grants that Ms.

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Stowe oversaw in her capacity running those two programs.

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The same is true on this sort of separate question of

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technology policy.

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The DOJ, the government in its briefs, I don't think has ever identified a technology policy that Mr. Green either developed or implemented himself, whereas Ms.

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Stowe is recognized, it's undisputed that she developed these standards development and testing programs

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which involved myriad development of technology policy.

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I see that amount of time.

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I just have a quick question for you.

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Yes.

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The priests don't really distinguish very much between the age and the gender allegations.

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Is that because they rise and fall together?

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For example, let's assume for a minute that we actually agreed with you on the gender claims.

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Do we have to separately address the age claims, or does it just go back at that point for a jury trial?

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So if I understand your question correctly, we argue that under both of our evidentiary paths we offer, certainly if this court

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held that a reasonable jury could find Stowe substantially better qualified.

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That's all that you would need to do to support a verdict on her gender and or her age.

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On both of them?

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On both.

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And what about for your backup position?

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On the backup position, we obviously concede that the gender claim is much stronger because in this case, we have evidence

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multiple points of evidence, but most... You're talking about the affidavit.

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The declarations from the colleagues of sexism.

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That said, we submit that the other evidence of pretext and discrimination in the record of the unfairly administered process of the reasons that you could, from the deposition testimony and otherwise, seriously doubt the legitimacy and veracity of each of the panelists' scoring of the candidates

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was along with, by the way, Tillery's shifting rationales that he offered for the decision, that the multiple aspects of the pretext evidence was sufficient to support not only a gender claim but an age claim.

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All right.

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Thank you.

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Thank you very much.

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Let me just have one more question on that, Shirley.

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Are you also partly claiming sort of the overlap, that it's because not only is she a woman, but she's 60 as opposed to Ms.

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Higgins, who's much younger?

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Ms.

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Higgins wasn't younger, sorry.

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Ms.

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Higgins was not younger.

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Mr. Green, the ultimate selectee, was a substantially younger male.

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And yes, we would absolutely argue if this case goes to a jury that those issues are fluid

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and that this could have been an issue of not wanting an older woman in the position.

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Thank you.

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Yeah.

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Thank you.

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Thank you so much.

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May it please the court, I'm Assistant U.S.

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Attorney Dan Schafer for the Apple Eight, William Barr.

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Your honors, I'd like to begin in the same place that counsel for Mistow began, which is the argument that Mistow's put forward about the relative qualifications.

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I want to ask you to begin somewhere else, if you don't mind, something that at least I think is the core of the case.

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So when I read the blue brief, the plaintiff's brief, they rely very heavily on three cases from this circuit, Hamilton, Salazar, and

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Iota, I guess you pronounce it, all three cases.

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And as I read that, I thought to myself, gee, these look almost controlling because Iola and Sousa are almost factually indistinguishable.

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And Hamilton warns on relying on the kinds of subjective standards that were used here.

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They spent like 18 or 19 pages in their brief on that.

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So then I picked up your brief to see what the answer was, and I didn't see any.

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I mean, you cite the cases, but there's no effort to distinguish those three cases.

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So, you know, I was wondering, I mean, are you conceding that their description of those three cases is accurate as it applies to this case?

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No, we're not, Your Honor.

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Well, maybe you would like to start out by telling me.

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Sure.

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How these three cases are different.

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Sure.

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Let me begin first with the Salazar and Yoha cases.

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I mean, did you think they were just irrelevant?

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Is that why you didn't discuss them?

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Let me start with the first question, which is why I think those are distinguishable, and then come back to the approach we took in the briefs.

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Beginning with the Salazar and Yoha cases, and I'm glad, Your Honor, raised this issue because... I didn't raise them.

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They were raised in the blue brief.

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In the argument today, Your Honor.

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Those two cases are distinguishable because in both those cases, what you see there is very strong circumstantial evidence that the

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The decision maker, the hiring official for those positions had exhibited discriminatory bias prior to the selection process that was at issue.

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You have just said evidence here in the two declarations.

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And I want to come back to that in a moment, but let me just.

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No, no, why don't you stick with that now?

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Sure.

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Because those seem to me to be right in point.

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Yeah, why don't you start with the, yeah, why don't you just explain why at least the declaration from

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the other person.

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I forgot her name.

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Ms.

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Crossland.

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Yeah.

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It's not at least pre-Nafasha evidence of outright gender bias.

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Well, that type of evidence in the Crossland Declaration is much more analogous to the evidence that this court assessed in the Holcomb case, where they were actually in lesser

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former probe of evidence than in the Holcomb case, because there you at least had another employee that had filed an informal complaint of discrimination.

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Whereas here, all you have is one other employee who had never worked under Mr. Taylor Ray, the selection official, until 2017, which is three years after the selection process.

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Just look at paragraph eight.

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Frequently, I have observed him talk to her in a way that I would describe as patronizing, condescending, belittling, and sexist.

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even though she is one of the most outstanding performer in the office.

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Kris speaks to Debra as if she thinks she does not what she is talking about, though she clearly does.

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I'm not saying, I don't know what a jury would do with that, but why isn't that enough of evidence of discrimination here?

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Well, I don't understand that.

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You're talking about getting it to a jury.

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Where have I?

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I haven't seen it.

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The president suggested this should go to a jury.

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And I'm still not understanding how you're distinguishing the three cases that my colleague has raised.

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And it was flabbergasted, I was flabbergasted as well, that you never addressed them.

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Well, let me begin with the Iowa case.

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In the Iowa case, you had there

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an employee who had, make sure I got the right one, yes, were you the selection official who had actually been found in another case to discriminate against the plaintiff.

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The selection official had been found by the agency in another administrative action to have tried to transfer that plaintiff out of her division because of her perceived

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discriminatory bias against that employee for his foreign language speaking.

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So that was very, in addition, there was evidence in that case that that selection official had made disparaging and joking remarks about the plaintiff's foreign language communication skills both before and after that finding.

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What is the principle that you are teasing out to distinguish that case from this case?

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there was evidence in the record that the selection official had exhibited discriminatory animus.

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Same information here.

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It's the kind of thing that would go to a jury.

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But it doesn't rise to the same level.

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Why?

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Because as I said, you had a finding in another form that that selection official had discriminated.

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Are you suggesting that

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that declarations like the Crosswind Declaration are not probative because they're simply declarations of a person and not supported by a finding of another agency?

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Do you know of a case that says that?

[00:21:50] Speaker 00:
I think that's the Holcomb case, Your Honor.

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It says that?

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So you have to have a prior judgment, adjudicated judgment, for that kind of information to be credible?

[00:22:01] Speaker 01:
No, no, I'm sorry.

[00:22:02] Speaker 04:
Maybe you should just read us that part of the case.

[00:22:04] Speaker 00:
What I was referring to in the Holcomb case is that as here, the circuit looked at a number of allegations and claims in that case.

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And by and large, as is the case in this matter, in the Stowe matter,

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The allegations and claims that the plaintiff had made were either unsupported by the record, conclusory, or directly contradicted by the record.

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And that's the case here.

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The Holcomb Court recognized that in some respects there were allegations and claims the plaintiff had made.

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that the record supported.

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But in assessing the evidence in that case, in the totality, the court found that it did not rise to a level sufficient to defeat summary judgment.

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And that's the case here.

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We recognize that there's another employee, in addition to Ms.

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Stone, that's Ms.

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Crosslin in her declaration, who submitted a declaration that said, by and large, I did not work under Ms.

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artillery until 2017, which is three years after the selection decision had issued here.

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I had observed meetings where I, this is Ms.

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Croson speaking, where I observed Mr. Taylor speaking, cutting Ms.

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Stowe off, accepting credit for her ideas.

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I didn't see him treating other male employees that way.

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But that's, there's no evidence number one connecting

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the observation she made in the general workplace to the selection process, that's an issue here in 2014 for one thing, but there's no specifics.

[00:23:37] Speaker 04:
Mr. Schaeffer, these are critical questions and you need to convince us that they're distinguishable, not just to state that they are.

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He, Tillery, the person Crossland is talking about,

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is the person who designed the selection process and who served on it.

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So I don't see how you can say that they're not related to each other.

[00:24:05] Speaker 04:
That is, that they were stated, that they somehow, Crossland's allegations, don't in any way relate to this case.

[00:24:11] Speaker 04:
In fact, taking you back to Salazar, that's exactly what happened in Salazar.

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Salazar had a selection process just like this, and a person participated in the process, and in fact designed it, who was the assistant to the person, not even the person, but the assistant to the person who had made discriminatory comments.

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So just tell us as clearly as you can.

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We're bound by our precedent, right?

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And to determine whether we're bound by a case, we look at the facts of the case and the statements of the court.

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And what I'm telling you is that as I look at Salazar, I don't see a way to distinguish this case.

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The process was virtually identical.

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And the two aspects of it that we found most significant

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that a person participated in the process who was related to someone who had discriminatory, expressed discriminatory feelings, and that the interview questions were designed to disfavor the plaintiff's strengths.

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We specifically said that in Salazar.

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And that's what they're alleging here.

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So just tell me, how do I distinguish it?

[00:25:32] Speaker 04:
That's what I need to know.

[00:25:32] Speaker 00:
Sure.

[00:25:33] Speaker 00:
Respectfully, we think that Salazar is easily distinguishable on the facts.

[00:25:37] Speaker 00:
OK, tell me.

[00:25:38] Speaker 00:
Number one reason is that in that case, the plaintiff had made complaints about the selection official and the selection officials, I think they're referred to in the opinion as colleagues, buddies, the selection officials, deputies, had made complaints to the agency in advance of that selection process and said, I think

[00:25:57] Speaker 00:
that that individual and the people that he's been putting on these panels is discriminating against Latinos.

[00:26:03] Speaker 04:
I understand that that's a factual distinction, but why is it a material distinction in terms of the standard we apply?

[00:26:12] Speaker 04:
Why does that make a difference?

[00:26:13] Speaker 00:
There was evidence in the record, in that case in Iowa, similar in this respect, that raised questions about the

[00:26:23] Speaker 00:
the fairness and legitimacy of the selection process.

[00:26:25] Speaker 00:
And the court, referring back to its earlier language from the fish box decision, said, we think there's something fishy here.

[00:26:35] Speaker 04:
The agency had promised to keep.

[00:26:37] Speaker 04:
OK, I hear you.

[00:26:38] Speaker 04:
So one distinction is that in Salazar, the plaintiff complained about the person participating in the process, and here the plaintiff didn't.

[00:26:50] Speaker 04:
Right?

[00:26:50] Speaker 00:
Yes.

[00:26:51] Speaker 04:
Is there another distinction?

[00:26:53] Speaker 00:
Building from that first distinction is what was starting to look fishy about this election process.

[00:26:59] Speaker 04:
I'm sorry?

[00:27:00] Speaker 00:
What was starting to look fishy about this election process in Salazar and in IOHA was that you had somebody here who, in IOHA, like I said before, had been found to be discriminatory.

[00:27:10] Speaker 00:
In Salazar, a little bit different, but the plaintiff had made a complaint in advance.

[00:27:13] Speaker 04:
Well, in IOHA, it wasn't even the person who was himself discriminatory.

[00:27:16] Speaker 04:
It was his assistant, right?

[00:27:19] Speaker 04:
Or did I mix up the questions?

[00:27:20] Speaker 00:
I think that's Salazar.

[00:27:21] Speaker 00:
That's Salazar.

[00:27:21] Speaker 00:
I think that's Salazar.

[00:27:22] Speaker 00:
OK, sorry.

[00:27:23] Speaker 00:
Yeah, OK.

[00:27:23] Speaker 00:
But coming back to Ayova in a minute, the Salazar court said, we think a reasonable jury can infer

[00:27:35] Speaker 00:
that this process was unfair and demonstrably discriminatory based on the fact that the agency had made this promise to the plaintiff and then a process designed to exclude that selection official ended up putting the selection official right at the center of it.

[00:27:52] Speaker 00:
Now, and back to Ayoha, just very briefly, the other piece of evidence that's missing here that was present in Ayoha is that there was evidence of undue influence

[00:28:03] Speaker 00:
between the tainted official and the other members of the panel.

[00:28:05] Speaker 00:
I think there was evidence to the effect of the panelists who were not the most senior member, who was also alleged discriminator, asking that panel member about more technical questions.

[00:28:17] Speaker 00:
Was that a good answer?

[00:28:18] Speaker 00:
We don't really know.

[00:28:19] Speaker 00:
And that's not the case here.

[00:28:20] Speaker 03:
You had... Well, there was a certain... I mean, the record when you read the depositions, there's a certain amount of deference on the part of the other panelists.

[00:28:27] Speaker 03:
This is really Mr. Tillery's decision to make.

[00:28:32] Speaker 03:
Mr. Tillery sent his scores to them before he received their scores back.

[00:28:38] Speaker 03:
And Mr. Tillery informed who the two finalists were, not including the Stowe, I think before he'd received their scores.

[00:28:47] Speaker 03:
And the very odd bracket that Mr. Tillery gave provisional range scores

[00:28:55] Speaker 03:
for Green and Stowe and then resolved them, giving Green at the higher end of the range and Stowe at the lower end of the range, creating the very amount of point difference that ended up being decisive in the case.

[00:29:11] Speaker 03:
So there is some evidence that a jury,

[00:29:16] Speaker 03:
There's also evidence under which the jury could find for the department, but there is evidence drawing inferences in the light most favorable to Ms.

[00:29:26] Speaker 03:
Stowe on which a jury could infer that there were some irregularities in this selection procedure.

[00:29:33] Speaker 00:
Well, Your Honor, we think that this selection process is very similar to the selection process that this court upheld in the Fishbot case.

[00:29:39] Speaker 00:
So you had initial screening based on written qualifications, which is what the agency did here, and then you moved to the more advanced stages of the selection process, and a decision was made based on the strength of the interview responses.

[00:29:55] Speaker 00:
And I didn't have a chance to really address this at the outset, but... What do you do with our decision in Hamilton?

[00:30:02] Speaker 04:
There was no evidence at all about, in Hamilton, it was enough for us that the process was subjective.

[00:30:13] Speaker 04:
And we didn't go beyond that.

[00:30:18] Speaker 04:
What do you do with Hamilton?

[00:30:20] Speaker 00:
Hamilton is distinguishable for that very reason, Your Honor, which is that

[00:30:26] Speaker 00:
Here, yes, there is a degree of subjectiveness as there would be in any interview, but the questions were focused on the core responsibilities of the position.

[00:30:37] Speaker 04:
But the allegation, and remember, we're here

[00:30:40] Speaker 04:
at summary judgment.

[00:30:41] Speaker 04:
The allegation is that those questions were designed to disfavor her experience.

[00:30:48] Speaker 04:
And if you just look at the face of them, that's true.

[00:30:51] Speaker 04:
None of those questions gave the plaintiff an opportunity to show her more extensive experience.

[00:31:01] Speaker 04:
And also, just like in Hamilton and in the other cases,

[00:31:07] Speaker 04:
You know there was no, I didn't see anything in the record that indicated that the scoring had been validated in any way.

[00:31:17] Speaker 04:
There was no difference, artillery gave no guidance for.

[00:31:22] Speaker 04:
what was a one or a two or a three or a four.

[00:31:24] Speaker 01:
But he made sure to send around his preferences first.

[00:31:27] Speaker 01:
Ahead of time, yeah.

[00:31:29] Speaker 01:
This is about summary judgment.

[00:31:31] Speaker 01:
Right.

[00:31:32] Speaker 01:
Not every case can be decided on summary judgment.

[00:31:35] Speaker 01:
All inferences are to be drawn in favor of the non-moving party.

[00:31:40] Speaker 01:
We have at least three cases or more in this circuit.

[00:31:43] Speaker 01:
where I hear all of what you're saying, but you're talking about a final judgment.

[00:31:47] Speaker 01:
That's not our role.

[00:31:49] Speaker 01:
The question is whether drawing all the instances in favor of the non-moving party is doubt enough so that the jury could come out in her favor.

[00:31:57] Speaker 01:
And I think it's a slam dunk, just so you understand.

[00:32:01] Speaker 01:
It is so straightforward if you apply summary judgment standards of review the way we're supposed to.

[00:32:08] Speaker 01:
It's a jury question here.

[00:32:09] Speaker 01:
You may win, but it's a jury question.

[00:32:13] Speaker 00:
There are cases in this circuit that come out both ways.

[00:32:15] Speaker 00:
A few on the other side of it, Your Honor, are Adayame, Fishbach, Holcomb, and Stewart.

[00:32:24] Speaker 01:
So you won't be surprised if this panel decides that, you know what, this should go to a jury.

[00:32:29] Speaker 00:
Stewart is a great example, Your Honor, of a case with similar facts.

[00:32:32] Speaker 01:
You won't be surprised, right, in light of the law of the circuit and some recent cases that suggest in this kind of a situation, we have a very highly qualified person against a person of the other sex, much younger, much less experienced, without the same accolade from the past.

[00:32:50] Speaker 01:
In this kind of a situation, you let the jury decide.

[00:32:54] Speaker 00:
Wouldn't be a surprise, would it?

[00:32:57] Speaker 01:
It won't be a surprise, would it, in light of the law of the circuit?

[00:33:01] Speaker 00:
I disagree.

[00:33:02] Speaker 00:
I think on the facts of this case, that would be a deviation from the circuit's precedent.

[00:33:06] Speaker 00:
Because the cases like Acca, Calhoun, Hamilton, Latham, that primarily

[00:33:18] Speaker 00:
with the evidence as here, I believe, is primarily focused on the relevant qualifications of the candidates.

[00:33:24] Speaker 00:
In those cases, the disparity between the selecting the plaintiff was much more significant than it is here.

[00:33:31] Speaker 00:
For that part of the case.

[00:33:32] Speaker 01:
So if in my review as a judge,

[00:33:35] Speaker 01:
of the record suggest you're simply wrong on that, that the disparity is substantial, then you would agree I should vote to send it back, right?

[00:33:45] Speaker 00:
Not necessarily.

[00:33:46] Speaker 01:
I would not agree, Your Honor, because... You were the one who picked where you wanted to go, and if I don't agree with your premise, I thought you would readily say, well, you're right, Ron, you gotta vote to send it back.

[00:33:56] Speaker 01:
I think if I think the record shows that she is substantial on the face of it,

[00:34:01] Speaker 01:
substantially better qualified.

[00:34:03] Speaker 01:
Whether or not he was minimally qualified or qualified, she was substantially better qualified.

[00:34:10] Speaker 01:
And then you have the additional information regarding the declarations, the way he set up the procedure.

[00:34:15] Speaker 01:
He votes first and sends his preferences around.

[00:34:19] Speaker 01:
It looks like rigging.

[00:34:21] Speaker 01:
A jury could find that.

[00:34:22] Speaker 01:
I don't know whether that was or not.

[00:34:24] Speaker 01:
That's exactly what juries do.

[00:34:27] Speaker 01:
I don't know what more she's supposed to do.

[00:34:29] Speaker 01:
She creates a record of the sort that she has which is outstanding over many, many years, goes up against someone substantially younger with nothing like the record that she has.

[00:34:40] Speaker 01:
And she's got to face the struggle and summary judgment as opposed to going to the jury.

[00:34:44] Speaker 01:
That's not what the law says.

[00:34:46] Speaker 00:
It's not what the law is.

[00:34:49] Speaker 00:
If I may, Your Honor, because I think this cuts to the heart of the case.

[00:34:52] Speaker 00:
I'd like to just briefly respond to that.

[00:34:54] Speaker 00:
Our position in this matter is not that Ms.

[00:34:57] Speaker 00:
Stowe was not highly qualified.

[00:34:59] Speaker 00:
We recognize that her accomplishments at the Department of Justice were exemplary.

[00:35:04] Speaker 01:
No, she was substantially better qualified than the person against whom she was competing.

[00:35:10] Speaker 01:
And she faced the problem of a supervisor who clearly was linked.

[00:35:14] Speaker 01:
A jury could find, I don't know what the result will be, a jury could find that the supervisor who was acting against her was tilting the system against her.

[00:35:23] Speaker 00:
But that doesn't account for construing all that evidence in light most favorable to Stowe, as district court did, and as this court would here on review of district court's decision.

[00:35:32] Speaker 00:
We aren't defying the district court.

[00:35:34] Speaker 01:
We're doing this de novo.

[00:35:35] Speaker 01:
There are three of us, and we're doing it de novo.

[00:35:38] Speaker 01:
The district court's conclusion on that is not compelling.

[00:35:42] Speaker 01:
It does not determine what we do.

[00:35:44] Speaker 00:
Understood, Your Honor.

[00:35:45] Speaker 00:
But the district court got it right that the evidence in this case is not even construing all of that evidence in light most favorable to Stowe.

[00:35:53] Speaker 00:
We take it as undisputed.

[00:35:56] Speaker 00:
It doesn't account for the fact that Dr. Green, not Mr. Green, Dr. Green, who had a PhD from one of the top programs in the country in material science and engineering,

[00:36:05] Speaker 00:
and relevant experience both within the department and outside the department was a highly qualified individual as well.

[00:36:12] Speaker 00:
And our position is that no reasonable jury could look at these two candidates side by side, based on their paper applications, not talking about their review responses right now, but based on their paper applications, and say that the disparity between these two candidates was so wide that the only possible inference here is something like discrimination.

[00:36:29] Speaker 00:
I'd like to tell you a couple things very briefly about Dr. Green.

[00:36:32] Speaker 00:
As I mentioned, he had a PhD.

[00:36:34] Speaker 01:
in a relevant... This often looks at the educational...

[00:36:43] Speaker 01:
and experience and prior supervision.

[00:36:46] Speaker 01:
The fact that you have a PhD does not necessarily mean that you are either very experienced in or highly qualified in standards development, standards testing, grants programs, or experience.

[00:36:59] Speaker 01:
It just shows that you went through a PhD program and that you have a PhD and maybe lots of potential to go with it.

[00:37:08] Speaker 00:
Respectfully, Your Honor, the comparison of the two candidates' educational qualifications and background is at the center of this Court's analysis and compared qualifications in almost every case.

[00:37:18] Speaker 00:
But in addition to that, you had

[00:37:20] Speaker 00:
a candidate in Dr. Green who had performed a post-doctoral fellowship at NIST, which in this exact field, material science and engineering, and then when he came to the Department of Justice, he had been there for four years prior to the selection, the last two of which he was at the same GS14 level as Ms.

[00:37:36] Speaker 00:
Stowe.

[00:37:37] Speaker 00:
Now I'd like to respond just briefly to a point that Ms.

[00:37:40] Speaker 00:
Stowe's counsel made during an argument, which is that there was no evidence that

[00:37:45] Speaker 00:
Dr. Green had performed work on technology policy.

[00:37:49] Speaker 00:
And that's incorrect.

[00:37:52] Speaker 00:
The example that Dr. Green provided in the interview, but also that we talked about in our briefs, was Dr. Green's work on the Smart Gun Technology Initiative.

[00:38:01] Speaker 00:
And this was an initiative that had come down from the White House in 2012 after some of the shootings.

[00:38:08] Speaker 00:
Dr. Green was the point person for DOJ on that entire initiative.

[00:38:12] Speaker 03:
So just so I can focus this and put it together with what's in the record, which of the five buckets does that go to?

[00:38:18] Speaker 03:
I know he talked about that in his response, I think, to two of the questions.

[00:38:22] Speaker 03:
Technology policy is your shorthand for which of these?

[00:38:27] Speaker 03:
Knowledge of program management principles or ability to analyze organizational operational problems and develop solutions or ability to provide advice and guidance on business and program management issues or ability to supervise or ability to meet and deal with others in performing supervisory?

[00:38:41] Speaker 03:
or leadership work.

[00:38:43] Speaker 00:
Yes, my recollection is that it was question four, which I believe was the technology policy question.

[00:38:48] Speaker 00:
That is in the brief and our discussion of the panelists' recollection of their own scoring.

[00:38:58] Speaker 00:
Okay, so technology policy.

[00:38:59] Speaker 03:
I didn't mean to slow you down.

[00:39:00] Speaker 03:
I just wanted to put it in context.

[00:39:02] Speaker 03:
Is an important answer his Phil Donahue activity?

[00:39:06] Speaker 00:
Go ahead.

[00:39:08] Speaker 00:
This technology policy is different from standards development.

[00:39:11] Speaker 00:
It's more broad.

[00:39:13] Speaker 00:
And this was a question that was asked to Ms.

[00:39:14] Speaker 00:
Stowe's counsel.

[00:39:15] Speaker 00:
OK, so we recognize that in the area of standards development and conformity assessment, Ms.

[00:39:21] Speaker 00:
Stowe had more experience than Dr. Green.

[00:39:26] Speaker 00:
But that was only one of the five selection criteria.

[00:39:30] Speaker 00:
The difference is that technology policy in this position

[00:39:34] Speaker 00:
Just this position, it's GS15 versus 14.

[00:39:37] Speaker 00:
This person would not be developing the standards himself or herself.

[00:39:41] Speaker 00:
It's more of a management supervisory role.

[00:39:43] Speaker 00:
So it's coordinating the work of other program managers who are developing standards.

[00:39:48] Speaker 00:
It's interfacing with different stakeholders in the community, law enforcement, the research and academics, the policy makers.

[00:39:58] Speaker 00:
the public at large who's affected by this technology.

[00:40:02] Speaker 00:
Dr. Green's responses during the interview reflected that he better understood the distinction between the work that had been the focus of Ms.

[00:40:10] Speaker 00:
Stowe's career, which were also the focus of her answer, which was really too narrowly focused on standards development and forming assessment, and this position, which was more supervisory, it was leadership, it was technology policy at a broader level.

[00:40:22] Speaker 00:
So with this smart gun challenge,

[00:40:23] Speaker 04:
Mr. Schaffer, let me ask you at this point about the plaintiff's alternative argument, which is that even if you're right that, as you say in your brief, yes, she was better qualified but not substantially better qualified, even if you're right about that.

[00:40:40] Speaker 04:
that there's still enough evidence here to go to the jury because of the declarations alleging gender bias and that the person who expressed that bias is the one who designed the system and allegedly designed the questions to disfavor her.

[00:41:03] Speaker 04:
That's their alternative.

[00:41:05] Speaker 04:
And what's your basic response to that?

[00:41:09] Speaker 00:
that the record does not support the claims.

[00:41:12] Speaker 00:
The record does not support the claims or directly contradicts the claims.

[00:41:15] Speaker 04:
Okay.

[00:41:15] Speaker 04:
Let me ask you just one other question.

[00:41:17] Speaker 04:
When I was asking you about cases that support your view, you mentioned Fischbach, right?

[00:41:23] Speaker 04:
Yes.

[00:41:23] Speaker 04:
Okay.

[00:41:25] Speaker 04:
As I read Fischbach, though, you're right that we said that the plaintiff's superior qualifications were not enough to go to the jury, but in that case,

[00:41:37] Speaker 04:
We pointed out that the district court, by the way, which was doing a bench trial, had found no evidence of discriminatory motive at all.

[00:41:48] Speaker 04:
That's what Fischbach was about.

[00:41:50] Speaker 04:
Am I wrong about that?

[00:41:52] Speaker 04:
Whereas here we have the Crossland Declaration.

[00:41:57] Speaker 00:
In Fischbach, my recollection, Your Honor, is that the main allegation in that case, which is similar to the allegation that Ms.

[00:42:05] Speaker 00:
Stowe is making here in terms of this category of evidence, is that she was the victim before selection proceedings.

[00:42:11] Speaker 04:
She was the victim of what?

[00:42:12] Speaker 00:
The victim of poor selection procedures.

[00:42:14] Speaker 04:
Of what?

[00:42:14] Speaker 03:
Poor selection procedures.

[00:42:15] Speaker 00:
Yes.

[00:42:16] Speaker 00:
Poor?

[00:42:16] Speaker 00:
Poor.

[00:42:17] Speaker 04:
Oh, poor.

[00:42:18] Speaker 04:
But there's an express finding.

[00:42:21] Speaker 04:
In Fischbach, we said the error the district court made was to send this case to the jury without making a finding about moments.

[00:42:30] Speaker 04:
That that was the error.

[00:42:34] Speaker 04:
Is that wrong?

[00:42:35] Speaker ?:
No.

[00:42:36] Speaker 00:
Our reliance on Fischbach is for the specific point to respond to Ms.

[00:42:40] Speaker 00:
Stowe's argument that she was the victim of poor selection procedures.

[00:42:44] Speaker 00:
And in that case, the court said that there's nothing fishy about, and I think the court said it's objectively reasonable, to have a process designed in a very similar manner to this one, which was written qualifications during the early stage.

[00:42:57] Speaker 04:
You keep saying that, but the difference

[00:42:59] Speaker 04:
is that there, there was nothing like the Crossland affidavit.

[00:43:04] Speaker 04:
Here there is.

[00:43:05] Speaker 04:
That's the difference between the two cases.

[00:43:07] Speaker 03:
Well, and a major difference is that there was a trial.

[00:43:11] Speaker 03:
It wasn't a summary judgment case.

[00:43:13] Speaker 03:
So that plaintiff had an opportunity to go to trial and fail to present evidence of bias

[00:43:22] Speaker 03:
evidence of biased treatment, observation of biased treatment by anybody.

[00:43:28] Speaker 03:
In this case, at the summary judgment stage, where the inferences are in the plaintiff's favor, have some evidence of that.

[00:43:37] Speaker 03:
And your responses?

[00:43:38] Speaker 00:
No, I don't disagree with that, Your Honor, that they are procedurally different.

[00:43:41] Speaker 00:
But in the relevant

[00:43:44] Speaker 00:
the relevant aspect here, which is Ms.

[00:43:47] Speaker 03:
Stowe's claims about- It's the structuring of the two steps.

[00:43:49] Speaker 03:
Yes.

[00:43:50] Speaker 03:
And you said, so in essence, Stowe might, in your view, have been the victim of, what did you call it?

[00:44:01] Speaker 03:
Poor selection.

[00:44:02] Speaker 03:
Poor selection procedures, but that does not necessarily equate to sex or age discrimination.

[00:44:08] Speaker 03:
But when I had asked you earlier about things that concern me about not just the

[00:44:15] Speaker 03:
having a qualifications paper review and then putting that aside to look only at interview scores.

[00:44:21] Speaker 03:
And you pointed to Fishbach as supporting that that isn't necessarily discriminatory.

[00:44:27] Speaker 03:
But I had pointed out that

[00:44:30] Speaker 03:
that Mr. Tillery sent his scores to the others before he got theirs, that he had, in fact, announced who the finalists were, not including Ms.

[00:44:38] Speaker 03:
Stowe, before he got the other panelists' scores, that there was some evidence that they were really deferring to Tillery and saying, you know, this is really his call.

[00:44:46] Speaker 03:
And then the feature of him assigning a range of scores and rounding up for Mr. Greene and rounding down to Ms.

[00:44:53] Speaker 03:
Stowe.

[00:44:53] Speaker 03:
And when I asked you about all those features, I believe your only answer was Fischbach,

[00:45:00] Speaker 03:
And I just wanted to give you an opportunity to give a more detailed answer if you have one.

[00:45:05] Speaker 00:
Yes, I do, Your Honor.

[00:45:06] Speaker 00:
Thank you.

[00:45:08] Speaker 00:
First of all, let me respond to the point about evidence in the record that the other two panel members deferred to Mr. Tillery.

[00:45:16] Speaker 00:
I don't believe there is any evidence in the record.

[00:45:18] Speaker 00:
In fact, the two other panel members

[00:45:21] Speaker 00:
wracked about this at their depositions, and they emphatically stated, no, not in any way were my scores influenced by Mr. Tillery.

[00:45:29] Speaker 00:
In fact, if he had tried to influence my scores, I would have recused myself.

[00:45:32] Speaker 00:
That's what Mr. Gillerman stated.

[00:45:33] Speaker 00:
The evidence that Ms.

[00:45:36] Speaker 00:
Stowe put forward that the district court looked at and addressed in its very thorough opinion does not show that there was any effort to signal an intent to

[00:45:51] Speaker 00:
to not select Ms.

[00:45:52] Speaker 00:
Stowe or to influence the other panel members.

[00:45:55] Speaker 00:
For example, there was the point before the selection decision, there was the email where Mr. Tillery had wrote to the other two members of the panel, this selection is going to replace the current member of our staff who is serving as the alternate standards executive on the interagency committee.

[00:46:12] Speaker 01:
Counsel, the problem is, I'm going back to the same thing I've been saying, that is weighing of the evidence.

[00:46:19] Speaker 01:
It's making a credibility determination.

[00:46:22] Speaker 01:
That's not what you're supposed to do on summary judgment.

[00:46:27] Speaker 01:
And it's not like the Fishbone case, which was a bench trial, where the judge does weigh the evidence and make credibility determinations.

[00:46:36] Speaker 01:
In fact, you're exactly right.

[00:46:38] Speaker 01:
The trial judge did weigh the evidence and made credibility determinations, and that's the problem.

[00:46:44] Speaker 01:
And it was wrong.

[00:46:45] Speaker 00:
The district court was very careful, Your Honor, to not use that language.

[00:46:49] Speaker 01:
The problem here is the points that Judge Pillett has raised with you, and you're still not answering it because there's no answer, are things that would cause a jury to allow a jury to rule in favor of the plaintiff.

[00:47:03] Speaker 01:
They could go the other way, but they couldn't.

[00:47:05] Speaker 01:
That's all you need to avoid summary judgment.

[00:47:08] Speaker 01:
All the inferences go in her favor.

[00:47:10] Speaker 01:
You are not answering.

[00:47:11] Speaker 01:
You refer to a case that was involved in a bench trial, which is totally an opposite.

[00:47:16] Speaker 01:
This is summary judgment.

[00:47:18] Speaker 00:
I understand that, Your Honor, but it's not inappropriate for this court, on its de novo review, to look at the record and ask if it supports an allegation or claim that she's making, A or B. Yes.

[00:47:33] Speaker 00:
whether the inference that Ms.

[00:47:35] Speaker 00:
Stowe is asking the court to draw is reasonable.

[00:47:36] Speaker 00:
What the district court said, which I think got it right, was that the inferences that Ms.

[00:47:41] Speaker 00:
Stowe is asking the district court to draw were not reasonable inferences.

[00:47:46] Speaker 04:
OK.

[00:47:46] Speaker 04:
OK, thank you.

[00:47:47] Speaker 04:
Thank you.

[00:47:48] Speaker 04:
Did Ms.

[00:47:48] Speaker 04:
Hutt have any time left?

[00:47:51] Speaker 04:
OK, you can take two minutes if you would like.

[00:47:59] Speaker 02:
Thank you, Your Honor.

[00:48:02] Speaker 02:
A lot of points discussed.

[00:48:04] Speaker 02:
I'd like to quickly touch on a few of them.

[00:48:07] Speaker 02:
I'll start with the order in which I started my discussion on substantial superior qualifications.

[00:48:13] Speaker 02:
I would submit to you all that it is a unique situation we find ourselves here where almost all entities involved in this case admit that a jury could reasonably find MISTO better qualified.

[00:48:30] Speaker 02:
I include the government in that, who essentially concedes that in their brief and may have conceded an oral argument today.

[00:48:38] Speaker 02:
The district court here recognized that a reasonable jury could find Stowe more qualified.

[00:48:45] Speaker 02:
And we would simply submit on this issue of when does that evidence rise to substantially superior when you have both parties admitting or conceding that a jury could find Stowe more qualified.

[00:48:57] Speaker 02:
It's the province of a jury.

[00:48:59] Speaker 02:
to then determine whether that totality of evidence rises to the level of substantiality.

[00:49:07] Speaker 02:
On the points turning to the second issue of pretext, I do want to point out that, you know, there are lots of subtle factual differences in the panel selection process here versus the one in Salazar versus the one in IOHA because

[00:49:24] Speaker 02:
You know, people have different names, and they have different backgrounds, and the questions are worded slightly differently, and there's nine questions there and only five questions here.

[00:49:32] Speaker 02:
But we had Salazar, the judges thought, was a close case.

[00:49:37] Speaker 02:
We would submit our evidence here is much greater in Stowe's favor than what Salazar offered.

[00:49:46] Speaker 02:
And in particular, I want to note that here, and we discussed this in our brief,

[00:49:51] Speaker 02:
There was evidence from which the jury could infer not only that Tillery had the ability to influence the other panelists, but that he did influence the other panelists, as you all pointed out, with exchanging the grades ahead of time.

[00:50:07] Speaker 01:
No, he acted in a way that a jury might conclude that he intended to.

[00:50:13] Speaker 01:
It's different.

[00:50:14] Speaker 01:
We don't know whether he did or what.

[00:50:16] Speaker 02:
That's right.

[00:50:17] Speaker 02:
And Your Honor, the only thing I wanted to add was that in addition to that evidence, there was evidence in the record from which a jury could doubt the veracity of the other panelists' scoring.

[00:50:30] Speaker 02:
I'll just make a note, Ms.

[00:50:32] Speaker 02:
Swineford is a perfect example.

[00:50:34] Speaker 04:
Ms.

[00:50:34] Speaker 02:
New?

[00:50:35] Speaker 02:
Swineford, the other panelist.

[00:50:37] Speaker 02:
She was not a technical expert on testing and all that stuff, but she was the point person on grants.

[00:50:44] Speaker 02:
That was her area of expertise.

[00:50:47] Speaker 02:
If you look at the scoring, her scoring of Green versus Stowe, she puts Green way out in front of Stowe.

[00:50:56] Speaker 02:
And she testified at her deposition that the one area that Green had outperformed Ms.

[00:51:02] Speaker 02:
Stowe was on grants management.

[00:51:05] Speaker 02:
But then you go back and you look at her scores on the question number three dealing with grants management, she scores the two the same.

[00:51:14] Speaker 02:
So there's a lot of evidence in the record not just that Mr. Tillery had the ability to influence, but that

[00:51:23] Speaker 02:
a jury could find, could doubt the veracity and the legitimacy of the other panelists' scores.

[00:51:29] Speaker 03:
I would just ask what about Mr. Tillery's apparent championship of Ms.

[00:51:34] Speaker 03:
Stowe trying to do the desk audit, get her job upgraded, advising her to get more surprising experience and really in some ways a jury could conclude being a mentor and a sponsor to her up to a point.

[00:51:52] Speaker 02:
Your Honor, I think you're right.

[00:51:54] Speaker 02:
I mean, a jury could certainly construe that way and could say, oh, there was a point in time when he advocated for her on certain things.

[00:52:02] Speaker 02:
I don't think a jury would be required to find that Mr. Tillery really was an advocate for Stowe on the GS-15 desk audit issue.

[00:52:12] Speaker 02:
testified, she never really believed that he was behind her on that and had slow-walked it.

[00:52:18] Speaker 02:
But in any event, I want to make the point that for some discriminators, it's very different to have some lady in the corner office doing her science stuff and give her that GS-15

[00:52:32] Speaker 02:
pay grade because you know she's been doing that GS-15 work for many years and it's hard to really deny it.

[00:52:39] Speaker 02:
That's different than giving her the division director position and making her the official supervisor of the other men in the division.

[00:52:47] Speaker 03:
How many men and who are they that she would be supervising?

[00:52:50] Speaker 02:
So these were, they were all program managers.

[00:52:55] Speaker 02:
They were GS13s, GS14s.

[00:52:58] Speaker 02:
And in her side of the division, the standards and testing side, it was all men.

[00:53:05] Speaker 03:
And are they engineers?

[00:53:06] Speaker 03:
Are they former law enforcement?

[00:53:08] Speaker 03:
Do we know anything about the nature of these people?

[00:53:10] Speaker 02:
They have science, technology backgrounds, because this is such obviously a science-dominated position, but whether they have PhDs, Mr. Hart did have some law enforcement background.

[00:53:25] Speaker 02:
I can't, I really don't know, Your Honor, in hands or the specifics on the other peers at first.

[00:53:33] Speaker 02:
Thanks.

[00:53:33] Speaker 04:
Thank you so much.

[00:53:34] Speaker 04:
Thank you.

[00:53:35] Speaker 04:
The case is submitted.