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Case number 19-5019, Lisa Lewis Appellant versus United States Department of the Treasury.

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Ms.

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Park for the Appellant, Mr. Glover for the Appellee.

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Good morning, Council.

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Shall we hear from the Council for Appellant?

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Yes.

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Your Honor, may I begin?

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Are you counsel for appellant?

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Yes, Your Honor.

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Please begin.

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Thank you.

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Good morning, Your Honors, and may it please the court.

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My name is Jimmy Park, and I represent the appellant of this case, Ms.

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Lisa Lewis.

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We are here today to argue that summary judgment should not have been granted by the district court for many reasons, but primarily we would like to argue that the way in which the district court handled and viewed the evidence in assessing whether there was an argument for pretext, we would argue that the district court was wrong in the way that it viewed the evidence because it did not make any favorable inferences in

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reasonable inferences in favor of the plaintiff when it was in a situation to do so.

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And also, more fundamentally, we do not believe that the district court viewed the evidence in the totality of the evidence perspective as it should have done because

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When you isolate each and every pretext evidence and rebut each one by saying, this does not indicate bias or discrimination, that does not indicate bias either, so your claim fails.

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If you do... All right, so the government... The government responds that you have brought a case of discrimination based on preselection.

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And the government states preselection by itself is neither unusual nor illegal.

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citing our opinion in Colestead, which was an in-bank opinion.

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But as the government and you know, the issue before the in-bank court was limited.

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So I went back to look at the panel opinion.

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And the author of the in-bank opinion agreed with the panel opinion except on the one point

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that the court went in bank.

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So the panel pointed to our authority and authority from other circuits that says, an employer's pre-selection of a job candidate in violation of its own procedures requiring fair consideration of qualified applicants is undeniably relevant to the question of discriminatory intent

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and operates to discredit the employer's proper explanation for its employment decision.

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So that's that 108 said third in the panel opinion.

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So if you would, Council, how did the employer fail to follow its own procedures here?

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Yes, Your Honor.

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There is evidence that this was a very unusual way of selecting, especially if there are only two qualified candidates.

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So in the record, it shows that Mr. Mahak, who is the ultimate deciding official, originally the human resources department did qualify both Ms.

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Lewis and Mr. Gossin as the best qualified candidates.

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So at that point, Mr. Mahak should have made the decision between the two candidates.

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But instead of doing that, and we believe an infant... Why did you say that?

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Because my reading of the record is that somebody from human resources said, no, you ought to do what he did.

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On page 207, which is Ms.

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Lewis's deposition, actually, but we believe that it was not the norm for

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in a situation like this for a subject matter expert panel to be paneled at the last minute.

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And one of the experts, purported experts, were not an expert in the field in which the decision was being thought.

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So that's another thing that we believe is procedurally erroneous.

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Could I ask you, Council, what's your authority?

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My authority for the procedure irregularities being indicative of discrimination, Your Honor?

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Well, or that there are procedural irregularities.

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I thought, OK, the supervisor originally was going to do a desk audit.

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Then someone from the human resources

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department said, no, you ought to advertise this so anybody who's qualified can apply.

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Is that not what happened?

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Yes, Your Honor.

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But if I could cite perhaps Salazar, in which the specific situation had some last-minute changes to the procedure, and the court there ruled that that is indicative of

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Procedure irregularity, but this is Judge Griffith.

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The last minute change here benefited your client.

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There was more process introduced into the decision making than there was going to be.

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How does that disadvantage your client?

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Your Honor, we do not think that it advantaged my client at all.

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because... What should have happened?

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What should have been done?

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Just the supervisor made the decision at the get-go and not opened it up for the process that followed?

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I don't understand.

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So Mr. Mihawk should have gotten all the names who are best qualified and then he should have interviewed and then made the decision himself.

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But he made it look like, and this is where the pretext arguments come in, Your Honor, he made it look like

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Um, he had no ultimate say in choosing Mr. Gossin because he said, Oh, the subject matter panel gave me only Mr. Gossin assessed.

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He clearly favored.

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Mr. Gossum, he had been a star employee, he had, you know, prepared to that.

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There's nothing illegal about that to identify prospective employees for advancement.

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What you need to show, the burden's on you to show that he did that out of a racial animus.

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And where do you show that?

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Your Honor, there is no direct evidence of racial animus in this case.

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But this court has said, I think, many times that suspicious evidence, the words that used for fishy evidence, if there is enough fishiness in the air that indicates pretext without having direct evidence of animus.

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And the fishiness here was to follow the advice of human resources and introduce

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more process into the system.

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I don't understand that.

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Nope.

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That sounds like pretty good management practice.

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But again, Your Honor, we would like to point out that, of course, just by looking at this itself doesn't indicate anything fishy.

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But we argue that, Your Honors, must view all of these evidence in conjunction.

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For example, one of the panel members of the two-person panel, Ms.

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Boykin, was an information technology specialist, and she should have never been on that panel.

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It will be like an IT specialist choosing the next lawyer for the law firm.

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It would be not in his area of expertise, even if the IT specialist does work at the law firm.

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So we believe that this also gives an inference that Ms.

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Boykin was only put into the panel at the last minute to avoid the appearance of impropriety because she was also one of the very few African-American females at the office.

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And if you combine this evidence, Your Honor, with the evidence that Ms.

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Lewis provided of the statistics of the office, but at one point, and I think still today, that Ms.

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Lewis is the only African-American female at the Office of Security, and she's the only band four employee at the Office of Security.

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Everyone else is a band five or six or above.

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And viewing that with also the

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This foreign agency, it's been Mr. Sheldon and Ms.

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Boykin on this panel.

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And the fact that Ms.

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Boykin also took no contemporaneous notes is something that in Hamilton said it could indicate pretext if you combine that evidence with other fishiness.

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I would argue, Your Honor, that there is plenty of fishiness in this case, and all of them must be viewed in totality of the evidence, as this Court has emphasized.

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And once the Court does that, I do believe that it will show pretext, because what is the employer trying so hard to cover up?

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I mean, they could have just said, listen, we like Mr. Austin.

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He's very likable and he's very talented and we want to uncompetitively promote him and dust him.

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So let's do all this.

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But instead of doing that, they tried to cover their tracks in the most dramatic ways, Your Honors.

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And they just tried and the supervisors and the decision makers contradicted other HR employees in their declarations made under oath.

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Such evidence does suggest a strong fish that exists in this case.

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Let me be clear.

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You just acknowledged that it would have been, as I understood your response to Judge Griffith, that it would have been perfectly lawful, no discrimination, for the office to have decided to promote

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Yes, only to the extent... Oh, sorry, Arnaud.

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What were you saying?

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I'm sorry.

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Why don't you finish?

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Oh, yes.

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I was saying, yes, it would be legal only to the extent they do not have an internal policy that dictates that in such a situation,

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supervisors cannot uncompetitively promote a employer they deem reportedly superior.

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And where is the citation for that policy?

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There is no specific policy in verbatim that was in the record.

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This comes through Ms.

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Lewis's

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But I believe that Your Honor, in Ovado, for TCS, that a definition testimony of a plaintiff can create tribal facts.

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And Ms.

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Lewis, you know... Right.

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You're talking about violation of policy.

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That's more like violation of a regulation or office guidance.

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And that's what I was looking for, a citation.

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So the record does not indicate a policy.

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It does not, Your Honor.

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But we do still think that there's a strong case for syntax under this circumstances, given the actions of the supervisors in just trying to cover this up.

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And it shows that they did not genuinely believe that Mr. Gossin was the more qualified one.

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The appellee can argue all day that Mr. Gossin was more qualified and that is why we should defer to the judgment of the employer.

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But that does not mean that the court has to ignore all the very strong... And also, I do not think that they have a very strong case for Mr. Gossin's superiority, especially in regards to the years when he hardly had any experience in 2008 and earlier.

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He was the only one that was allowed to participate in the Green Belt training, which played a pivotal role.

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The only issue before us, as you know, is did the district court err in granting summary judgment here?

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So under your mosaic theory, that's why I went back to look at Colstead and the things that

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Colstead gave you, I thought, was legal authority for the mosaic as relevant to discriminatory intent.

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Yes, sure.

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Absolutely.

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We really like the Coltsa case, the 1997 one.

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So that is where it says that if we prove the falsity of the explanation, then at that point, the jury can infer discrimination right away.

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And we agree that is what's happening in this case, because like in Coltsa, there's evidence of preselection and job tailoring, tailoring the job advertisement to fit the person they ultimately chose.

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And Judge Tatel says that all of this, in conjunction with one another, definitely shows pretext.

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And, of course, they can infer discrimination from that.

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And we would strongly argue.

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Counsel, what are you citing when you say Judge Santel?

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Oh, no, no, no.

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Tatel.

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Tatel.

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Judge Tatel.

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You mean the Cotell case?

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Oh, no.

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Judge Tatel's opinion in COAP.VADA

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of 1997, the one before the inbox decision, the panel decision?

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I'm looking at it now.

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I don't know who the district court judge was.

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I think counsel needs to say Judge Tatel.

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I think so, in any event.

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We don't care about the name of the judge here.

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I'm just looking at legal proposition that's set forth there.

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And either it helps you or it doesn't.

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And I'll ask the government about that as well.

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Unless one of my colleagues has another question.

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and then we'll give you some time on rebuttal.

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Okay, thank you, Your Honor.

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All right, Council, yes, for APLE, Mr. Glover?

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Yes, Your Honor, yes.

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Okay, may it please the Court, Matthew Glover, and I represent APLE, the Department of Treasury.

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The Department of Treasury provided a non-discriminatory reason here and plaintiffs failed to show that it was pretext.

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Judge Rogers, if I can begin with your colloquy with my colleague about where the policy or how this somehow deviated from the normal practices.

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If you look at, I would cite PAA 88 or PAA 088.

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In the record where the declaration of Ms.

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Angela Carter, she says that the ranking panel was consistent with that used in prior vacancies.

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As you point out, the original panel opinion in Colestead did say preselection

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including, you know, can suggest potential pretext and then you add things like violating policies or not following your normal procedures.

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Here, there's no indication that they didn't follow the normal procedures.

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As Judge Griffith's question noted, any deviation from the option that Mr. Mahawk had to simply interview the two candidates was a deviation which created new people looking at the process and an additional layer of process for the applicants.

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And then I would emphasize that while the panel opinion in Colestead did highlight preselection, the en banc court stated that preselection would not be unusual in cases where the employer knows the employees and they're selecting from a small group.

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Ah, how large was this group?

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How large was the office?

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I believe the office had a handful, maybe six employees, but Ms.

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Carter, who's the one that suggested not using a desk audit but instead having an open process,

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stated that there were two employees at the same band level and thus eligible for the promotion and so there would only have been two employees eligible within the office.

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I think outside people may have been able to apply but these were the only two applicants.

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So as I understand the argument here in part by appellant is that

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If you take the law, as we stated it, in Colestead, and the in-bank court did not change that at all, because the only issue before the in-bank court had to do with an evidentiary standard, not what we're talking about here today.

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And if you look at the panel, I won't repeat the quote that I mentioned at the beginning of Appellant's argument.

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But the panel went on to say, here, the evidence that the plaintiff had was this cut and paste job responsibility, that there were the agreement on the goals for the man who ultimately got the job.

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And that person began

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meeting extensively with the supervisor.

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And that in that case, essentially, the argument was that the association had selected the person chosen essentially before it ever posted the position.

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So what I want to understand is, as you know,

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As Appellant pointed out, in justifying the selection, there was reliance on data that was not even available at the time for fiscal year 2011.

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And that made the selected person look better, whereas the only evidence that was

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available at the time was that the two applicants were scored equally on that point.

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So what I'm trying to understand here is I certainly understand your point and the implication of Judge Griffith's question that the appellant got more process by getting this panel.

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But the issue is

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just so I understand it, on summary judgment, where she must get the benefit of all favorable inferences, if the person who selected the panel had already indicated he wanted Mr. Dawson.

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And then some of the actions that existed in our Colstead case occurred.

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And the training, which was critical, was only available to one person.

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And that person was Mr. Dawson.

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So in other words, there was no way Mrs. Lewis could have been selected.

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her argument, and what is your response based on our standard of review and the evidence that was before the district court judge here?

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Yes, Your Honor.

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I'll answer that in a number of parts, and if I could actually start with a point about the fiscal year 2011 data.

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Ms.

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Lewis did not take issue with the district court's reliance on the fiscal year 2011 ratings until the reply brief.

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As this court has said many times, Rawlins Environmental Services versus EPA, Judge Griffith's opinion for the court cited in our brief at page 28 of American Wetlands versus Kempthorne, an argument raised for the first time in the reply brief normally need not be addressed.

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So just as to the fiscal year 2011...

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There's an adverb there, and we're on de novo review, so proceed.

[00:23:09] Speaker 00:
Sure.

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I would also take issue with the suggestion that the 2010 scoring showed they were identical.

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They both received a summary score of three.

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However, in the six individual components, Mr. Gossin received a four in four of the components, and he received a three in two of the components, and Ms.

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Lewis received a three in all of the components.

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Additionally, I would point out that this is distinct from Colestead.

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As you said, in Colestead, to set a little bit of background, there were two people in sort of a deputy director or deputy VP position applying for

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to replace their supervisor.

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And one of the things about the job posting that the panel opinion highlighted was odd was they copied and pasted the job description of the male applicant who was ultimately chosen.

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And I think he did the lobbying side of the organization and she did the manage, the female applicant did the management side of the organization.

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I understand that point, but here her argument is that Mr. Gosselin was called in to help write

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the description.

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So that's her analogy, I think.

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I don't think she's saying that they did exactly the same thing, but she's saying you add up all of this and you wonder what was going on, and then one of the people on the panel has no expertise in the area being addressed.

[00:24:38] Speaker 00:
So Your Honor, I'll start with the last statement.

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As we describe in our brief, Ms.

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Boykin had years of experience in the security area.

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She was not in this specific office doing personal adjudications, but she had experience in the security office.

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She'd worked for the Office of the Comptroller of the Currency.

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She had reported to Mr. Mayhawk, the same supervisor that was a second line supervisor here.

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So she was an IT specialist in the security area.

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We think perfectly qualified to serve on the rating panel.

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And we don't think that Ms.

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Lewis has put in evidence calling into question her expertise.

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In an office of six people, you don't have to have the panel come from, you know, the two people in that office if you're working in the same area.

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So I don't think that the use of Ms.

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Boykin in the panel suggests anything other than having someone who had not previously worked or supervised these two people also rate their applications.

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as to including Lean Six Sigma training and things like that in the job description.

[00:25:39] Speaker 00:
The story here begins with Mr. Mahawk took over as supervisor of this office.

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He recognized that Mr. Gossin was performing above his grade.

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He suggested a desk audit.

[00:25:50] Speaker 00:
Ms.

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Carter said we should have an open application because there's two people at this level.

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And so looking at the skills that Mr. Gossin has,

[00:25:58] Speaker 00:
when you are looking to create a new position that fits those skills is not nefarious because you've identified these are the type of skills we want.

[00:26:09] Speaker 00:
And in the email, he talks about someone like Mr. Gossin or someone like Mr. Gossin when he's outlining those skills.

[00:26:15] Speaker 00:
So we just don't think that she has put together enough in the mosaic with each of those pieces of evidence.

[00:26:23] Speaker 00:
The use of the panel allowed for one person who had reviewed them, and it allowed for looking at the fiscal year 2010 applications, but also the knowledge and assessment questions on which both panel members ranked Mr. Gossin considerably higher than Ms.

[00:26:41] Speaker 00:
Lewis.

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If the court has other questions, I'm happy to address them.

[00:26:53] Speaker 00:
I think I would make a couple of minor factual points.

[00:26:56] Speaker 00:
Ms.

[00:26:56] Speaker 00:
Lewis says that she wasn't offered the green belt training, but she acknowledged in her deposition that the training in this system went through a program

[00:27:06] Speaker 00:
I'm now forgetting the acronym, but that she never applied for the TLMS, I believe, is the acronym.

[00:27:13] Speaker 00:
It's in her deposition, PAA080, I believe, is the page number.

[00:27:18] Speaker 00:
She acknowledges she never requested training.

[00:27:20] Speaker 00:
In Lean Six Sigma is through that system.

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Another employee was later provided Lean Six Sigma training.

[00:27:30] Speaker 00:
So the record doesn't show that only Mr. Gossin was ever provided this training.

[00:27:34] Speaker 00:
It doesn't show that aside from the one time in which everyone in the office asked for the training and they did select Mr. Gossin that Ms.

[00:27:42] Speaker 00:
Lewis ever requested the training.

[00:27:48] Speaker 00:
You know, I'm happy to answer other questions that the court has, but I'm also happy to rest on our brief.

[00:27:54] Speaker 00:
We think that Ms.

[00:27:55] Speaker 00:
Lewis has not put in evidence showing that the government's proper reason that Mr. Gossin was more qualified is pretext, and she certainly hasn't, in attempting to undercut the reason, tied that to any evidence of discrimination.

[00:28:10] Speaker 00:
And I guess I would point to, I think it's footnote three in ACCA versus Washington Hospital Center, which was also an en banc case

[00:28:18] Speaker 00:
decided the year after Colestead, where the court said in footnote 3, it's 156S3 at 1288, that in describing what McDonald Douglas requires, it adopted the position that sometimes it means that both the explanation is incorrect, you're undercutting the explanation of the employer, and that the employer's real reason was discriminatory.

[00:28:42] Speaker 00:
Ms.

[00:28:43] Speaker 00:
Lewis hasn't provided anything to suggest that the employer's real reason was discriminatory.

[00:28:46] Speaker 00:
And in trying to undercut the employer's reason, she's just pointed out that this process began with acknowledging that Mr. Gostin was a high-performing employee.

[00:29:00] Speaker 00:
If the court has nothing further, I'm happy to rest.

[00:29:07] Speaker 03:
Thank you.

[00:29:08] Speaker 00:
Thank you.

[00:29:11] Speaker 04:
Council for Appellants?

[00:29:14] Speaker 04:
Yes.

[00:29:15] Speaker 04:
Hello?

[00:29:17] Speaker 03:
Yes.

[00:29:18] Speaker 04:
Yes.

[00:29:21] Speaker 04:
First of all, Your Honor, I would like to briefly rebut Mr. Glover's point about the ACOT case.

[00:29:28] Speaker 04:
ACOT case said that

[00:29:31] Speaker 04:
Unless there is extra independent evidence that conclusively shows from the employer that no discrimination has been made in conjunction with pretext.

[00:29:41] Speaker 04:
Maybe in that situation there won't be an inference of discrimination, but we believe that the defendants, the applicant has not provided any such independent evidence that shows that no discrimination has occurred.

[00:29:56] Speaker 04:
By having a very strong evidentiary support for our pretext argument, we believe that this was the case... This was the sort of situation where ACA envisioned proving the falsity of the reason of the employer can be sufficient to directly infer discrimination.

[00:30:15] Speaker 04:
Also, Mr. Glover mentioned that... So, Your Honor, the reason why I wanted to talk about the Green Belt training, even if it is from year 2008, because it is...

[00:30:26] Speaker 04:
it has a very fishy player in the scene.

[00:30:30] Speaker 04:
So this player is Mr. Sheldon.

[00:30:33] Speaker 04:
He is one of our panel members that made the decision and both employees supervisor at the time.

[00:30:40] Speaker 04:
He went through abnormal procedures, meaning he didn't go through the correct procedures on the channels of giving Mr. Gossin the only Greenbelt training opportunity at the office.

[00:30:54] Speaker 04:
At the time, the team leader was Ms.

[00:30:56] Speaker 04:
Delores Hood, and any and all requests for giving out training opportunities should have gone directly to her, and she would be the one making the decision.

[00:31:06] Speaker 04:
So Mr. Sheldon decided, even before Mr. Gosson has started to shine at the Office of the Treasury, Office of the Security,

[00:31:14] Speaker 04:
Mr. Sheldon just arbitrarily went over Ms.

[00:31:17] Speaker 04:
Hood's head and just chose Mr. Lawson for this position, which is apparently one of the crucial factors in the same person, Mr. Sheldon, giving him full marks at the Subject Matter Expert panel deliberation.

[00:31:31] Speaker 04:
So, this is, and Ms.

[00:31:35] Speaker 04:
Lewis,

[00:31:36] Speaker 04:
only did not go through TLMS to apply for this, because she had already heard that there was only one opportunity available, and it already went to Mr. Gostin.

[00:31:49] Speaker 04:
So all of these evidence in conjunction, starting from years back, before Mr. Gostin had a chance to shine at the office as with the superior employee, Mr. Chauvin was arbitrarily chosen for this very, very highly coveted training position, and it was the only one

[00:32:06] Speaker 04:
for almost five or six years that was ever given at the office, and everyone wanted it.

[00:32:11] Speaker 04:
Of course, Ms.

[00:32:12] Speaker 04:
Lewis wanted it, despite Mr. Sheldon saying in his deposition that Ms.

[00:32:17] Speaker 04:
Lewis never illustrated her interests.

[00:32:19] Speaker 04:
She wanted this training more than anyone else, and just as much as Mr. Gossens, but it all started up there, Your Honor.

[00:32:28] Speaker 04:
We believe that from then on, there is evidence of favoritism, but I believe in Telavera,

[00:32:35] Speaker 04:
This circuit has said, evidence of favoritism should not be ignored when assessing the pretext claimed by the plaintiff.

[00:32:43] Speaker 04:
And in this case, we believe that this shows favoritism because not only the Green Belt training, but there are several other trainings that Mr. Sheldon was allowed to participate in when the executive branch has put a spending freeze on such travel.

[00:32:59] Speaker 04:
But even when there was no spending freeze, when Ms.

[00:33:02] Speaker 04:
Lewis asked Mr. Mayhak for some training or some, like, online college courses that she wanted to take to better herself as an employee, he said, no.

[00:33:12] Speaker 04:
No, this is not approved, is what he said.

[00:33:14] Speaker 04:
So, I mean, all of this stuff is a great favorite to them for Mr. Gossin, and it is not the course

[00:33:23] Speaker 04:
role to read the minds of these supervisors is the role of a jury.

[00:33:28] Speaker 04:
They must listen to all of these in conjunction and see which evidence makes more sense to them and which one has more credibility.

[00:33:35] Speaker 04:
Unfortunately, at the district court level, the district court made credibility determinations in favor of the defendant even when the evidence that supported the defendant was clearly very weak.

[00:33:54] Speaker 04:
If your honors have no more questions, I would like to retreat.

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

[00:34:03] Speaker 03:
Thank you.

[00:34:04] Speaker 03:
We'll take the case under advisement.