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Case number 20-5030, Peggy Wilson, a balance versus Jadeth Wolf in his official capacity as Acting Secretary of US Department of Homeland Security.

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Mr. Ward for the ebellent, Mr. Sorino for the eboli.

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Morning Council, Mr. Ward, please proceed when you're ready.

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Thank you, Your Honor.

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May it please support my name is Larry Ward.

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I'm representing Peggy Wilson, who is an employee at the Department of Homeland Security.

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This is a Title VII case.

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involving Mrs. Wilson, who at the time, at the age of 59 years old, applied for a position of Supervisory Financial Management Specialist at the Department of Homeland Security.

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She had served as a bank card manager also at the Department of Homeland Security two years prior to the time that she had applied.

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And she had been bank card manager for six years between 2000

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and six up into 2012, in which time she received outstanding performance evaluations from four different supervisors.

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After returning in 2014, she applied for the job, which was one notch above the job that she had previously held.

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During the selection process, her resume was not forwarded to the next level, which would have been a full panel,

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which consisted of three persons, two of whom were her previous direct supervisors, and one of whom was another person.

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Mr. Ward, can I ask some questions about representations in the brief that you filed?

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The statement you just made about her resume not being reviewed by the panel is really the first one.

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You say throughout your brief, including on page 11,

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Ms.

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Burris did not review the resumes.

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Where's your support for that in the record?

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Well, support in the record is her affidavit.

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In the appendix, I included her entire affidavit.

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Can you remind me what page of the appendix her affidavit is?

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Yes.

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I believe it's page 132.

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I'm sorry, Yana.

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Give me just one second.

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I'm sorry, Yana.

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I don't have that pinnix before me at this particular time.

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Is it Christine Burris you're talking about?

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Yes.

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That's J237 is where it starts.

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her declaration.

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If you could bear with me, then Mr. Ward, and thanks to Judge Millett, could you tell me, check out that declaration that starts at J-A-2-37.

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I don't read it to say one way or another whether Ms.

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Burrush reviewed the resumes.

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Can you tell me where you think that it does say that she did not review the resumes?

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Yeah, there was one particular

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statement, I believe it was number 17, but she says specifically that she only participated in one aspect of the entire selection process.

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She says, I was not privy to the process of the actual selection of Mr. Taylor.

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I don't view that as her saying that she didn't review the resumes.

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Do you view that as her saying expressly that she did not review the resumes?

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I reviewed the entire affidavit.

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And in reviewing that entire affidavit, I, in summarizing what her affidavit says cumulatively, I read that to say that she did not participate.

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And when Ms.

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Morgan Loudon on JA 192 and 193 expressly says that Ms.

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Burris did review the resumes.

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Well, that's- Why doesn't, why isn't that,

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Why doesn't that disprove your point?

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Well, it doesn't.

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It doesn't prove the point because they're simply saying that Mrs Morgan loading stated that Mrs Burroughs was present at the meetings.

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But when you read Morgan loadings testimony.

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At the at I believe at the third page of her testimony, she indicated that she wasn't sure.

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Let me be specific, Mr. Ward.

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On page 22 of the deposition on JA192, she's asked, who aside from yourself, who else helped you review these 47 individuals?

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And she says Christine Burris, as well as Jeff Obich.

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And then also on page 26, she's asked, so are you certain that Christine Burris would have been included in the process

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trying to determine which of the 47 individuals should be selected.

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And she says, yes.

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So when you say Ms.

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Burris didn't review the resumes, you're contradicting the testimony of Ms.

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Morgan Loudon, correct?

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Absolutely.

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You are, okay.

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So you also say the regulation required that Ms.

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Burris participate in writing questions.

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You say that on page 31 of your brief.

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Can you tell me where in the regulation it says that she was required to participate in writing the questions?

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Well, I guess the point regarding Mrs. Burroughs is that

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It's really a question about the regulation.

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Mr. Ward, it's really a question about the regulation.

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Can you tell me where in the regulation it says that Ms.

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Burris was required to participate in writing questions?

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No, I'm reading the regulations broadly.

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I'm reading them from the standpoint that if you were a manager working at a large corporation or a large agency and you're familiar with regulations 335 as well as the whole body of

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Supreme Court precedent, which requires that individuals should be treated equally.

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And also- But Mr. Ward, I'm asking specifically what text in the regulation requires participation of a minority panel member when writing interview questions.

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It may be great policy.

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I'm not disagreeing with that.

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I'm just saying where specifically in the regulation does it say what you say the regulation says?

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Okay, there is a Department of Homeland Security regulation, which is not in the appendix in its regulation number 0480.1, which is dated March 4, 2003.

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And essentially what it says is that the Department of Homeland Security should adhere to all laws and regulations that provide equal opportunity

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for all Americans, regardless of race, color, religion, sex, national origin, age, or handicap.

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So you're saying that does not specifically require the participation of minority panel member in writing the questions.

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It makes a general statement that you're interpreting to mean that.

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Absolutely.

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OK.

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On page 12 of your brief, you say the regulation required the panel to keep their interview notes.

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Can you tell me where in the regulation the panel was required to keep the temporaneous notes?

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I believe it's also in regulation 335.

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And I don't, you have to point that out in my- That's it.

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If you gave me the number, I'm happy to go look at it after oral arguments.

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Three more, if I may.

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You say this is on page 10 of your brief, as well as page 11, and then again on 26 and 38, and then four times in your reply.

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You say Ms.

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Morgan Loudon, quote, withheld

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Wilson's resume.

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Um, where in the record is that?

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I'm sorry.

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Could you repeat that, Your Honor?

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Where you say that Ms Morgan Loudon withheld Wilson's resume.

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Where in the where in the record does it say Ms Morgan Loudon withheld Wilson's resume?

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I think that they were.

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I think that was an admission in their answer and also in

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I can't point to Pacific.

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It was in her, it was in, it was in Morgan Lowen's deposition excerpt where she indicated that she had

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She admitted that she had withheld the resume for the reasons that she did not feel as if it represented the type of leadership and projects that she and Mr. Al-Babit sought.

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So you don't mean that she withheld the resume from Ms.

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Burris or withdrew the resume from those that would be reviewed by others?

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You just mean she didn't think that the resume was good enough to receive an interview?

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interpreting you correctly.

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That's correct.

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By the full panel, which would have included Mrs. Burroughs.

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Right.

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As in on page 31 of your brief, as well as five other places, you say the district court aired when it found the selectee significantly better qualified for the job than the appellant.

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The district court actually said that the burden is on you and you can, this is from JA 310, Wilson cannot establish

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that she was significantly better qualified for the job than Taylor.

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Would you agree that you're flipping the burden there?

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I believe that the burden is upon, I think, I'm sorry, could you repeat that question, Your Honor?

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You say that in your brief that the district court erred when it found that the selectee, who in this case was Mr. Taylor, was significantly better qualified for the job than Ms.

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Wilson.

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Yes.

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Right.

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But the district court actually simply found that you did not meet your burden to establish that Ms.

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Wilson was significantly better qualified than Mr. Taylor.

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Which brings me to the point, which is the whole issue here is that we believe that the district court clearly was clearly immolious.

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Do you think the district court got the standard wrong?

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We think that the district court was clearly wrong in this fact finding because it was.

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That's not my question.

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Do you think the district court got a standard wrong when it said Wilson failed to establish the standard being on Wilson, that she was significantly better qualified for the job than Taylor?

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I know you don't agree with the fact-finding.

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I'm not expecting you to.

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I'm just asking, do you think the district court got the legal standard wrong when the district court said it was your job to establish that Wilson was significantly better qualified than Taylor?

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No, I agree with that.

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This is my last question on your brief.

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You say on page 12 and 14, and then again in your reply that Mr. Taylor had no supervisory experience, but he actually led a team of nine

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in developing the methodology of allowing 15 reporting components to allocate major program costs.

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I guess the reason, this is my last question.

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Whether we agree with you on the district, whether district court aired or not, some courts have said that grossly inaccurate statements in an appellate brief subject an attorney to rule 38 sanctions.

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And I wonder why you don't think that the six statements that I've gone through are not grossly inaccurate.

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I don't think that they're grossly inaccurate because I think if, for example, you take the issue of whether Mrs. Burrows affidavit shows that she did not have an opportunity to participate, I think that

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that it is accurate.

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And I think that there at the very, at the very least, there's a dispute of fact there because she said the defendant is trying to say that she did not participate.

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And we're saying the defendant is trying to say that she participated and we were saying that she did not.

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And I think that that affidavit shows enough in the context of the

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Morgan Lowland deposition, in which she states that she was not sure whether Mrs. Burroughs participated or not.

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I think that's enough to create a factual dispute.

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However, I really think that she did not participate, and that's my belief.

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And with regard to the issue of whether

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who has a burden of the qualifications, I think you set forth the standard under ACA versus Washington Hospital Center, under McDonald Douglas versus Green, under Foreign Corp versus Waters, under TeamSys versus U.S., and the idea is that

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The plaintiff does have the burden of showing that they are qualified, but how can you prove that burden if the judge is withholding facts?

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My client worked in an outstanding position, doing outstanding work for six years, and I specify that- There again, Mr. Ward, didn't the IG report say that things were not going exactly swimmingly when it came to the bank card programs at the Department of Homeland Security?

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I'm sorry, could you repeat that?

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Didn't the Office of Inspector General issue a report saying that the performance of the bank card offices in the Department of Homeland Security had problems, significant problems?

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The issue was whether they were related to my client or not.

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And I think I set forth in my brief very specifically that it did not have anything whatsoever to do with my client.

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Did the government come forward with any evidence that any of those problems

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were related to matters within Ms.

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Wilson's control?

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Well, my client, I'm sorry, could you repeat that, Your Honor?

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Did the government come forward with any evidence that those Inspector General problems were things that were within Peggy Wilson's control?

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No, they did not, Your Honor.

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And I had specified in my brief that- Didn't she actually lead a response to part of the Inspector General report to fix the problem?

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No, they did not, Your Honor.

[00:16:05] Speaker 01:
I thought she led a response.

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Maybe it was a different response to that.

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I'm sorry.

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Yes, she did.

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Yes, she responded.

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She indicated that she was in a policy part of the Department of Homeland Security.

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And the issue that arose there was related to a lower level practical problem.

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And ultimately, she was asked to assist them in resolving that practical problem.

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And as a result of helping them resolve their practical problems, she received the highest performance evaluation from her supervisor, who also supervised the selectee, Robert Taylor, who got the job.

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And his opinion, as I pointed out in my brief, was that he thought she was significantly better qualified for the position that Mr. Taylor was.

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And he would have known because he filled the position

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Mr. Taylor, he would have known because Mr. Taylor filled the position that he had after he left the department.

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Let me make sure my colleagues don't have additional questions for you, Mr. Ward.

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And hearing none, why don't we hear from the government.

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Mr. Serino, we'll give you some rebuttal time, Mr. Ward.

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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 Paul Serino for the defendant in this case.

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Mr. Sherwood, can I start where Mr. Ward left off?

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Did the Boyd affidavit say that Boyd was taking a position on who was significantly better qualified?

[00:17:46] Speaker 07:
No, Your Honor, that's not our reading of the affidavit.

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Mr. Boyd, as supervised

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both of the Ms.

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Wilson and Taylor in 2011, which is three years before the job announcement in this case, and didn't speak to who was substantially more qualified for the position at issue.

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And he didn't even know.

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Well, given his very surprise to learn about the hiring process, I understand that's your reading of his testimony.

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My question to you is simpler.

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Would it be irrational

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for a jury to look at that and infer that Mr. Boyd concluded that Wilson was more qualified.

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It would, Your Honor.

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It would be irrational for a jury to do that.

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Let me say it this way.

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I don't think it's a reasonable inference.

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That's the same thing.

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So it's irrational for a jury to read his very surprised to learn that Taylor got the position given his experience working with both of them and the accolades he showered on Miss Wilson has lengthy experience with her and Mr. Taylor's lack of supervisor experience, it would be irrational for a jury.

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to conclude that Wilson was substantially more qualified for the position at issue in this case, which he didn't know about.

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Yeah, the former position.

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That would be irrational for the jury to conclude, too.

[00:19:21] Speaker 07:
Well, there was a new director that was the decision maker to select the.

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And I'm not disputing your reading of the evidence, to be clear.

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And all your arguments, they're not mutually exclusive at all.

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is if we put all this stuff in front of the jury and just on this narrow part, there's other disputes in this case or potential disputes in this case.

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And Mr. Boyd says, look, I worked with both of them.

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I worked with her extensively.

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Here's all the things we did, all the accolades.

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I couldn't go anywhere without her because she was the key person on this in the department.

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And I was very surprised.

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It would be irrational.

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And I don't want to use the significant qualifier.

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I'm following our case Hamilton versus Geithner.

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So I just want to know whether it would be irrational for a jury to factor, let's just say factor that in.

[00:20:14] Speaker 01:
Could that help them infer that he thought at least she was more qualified for the job?

[00:20:20] Speaker 07:
Your honor, I think the most that you can infer from the Boyd affidavit is that he believed, based on his experience, that Wilson was a better employee than Taylor.

[00:20:34] Speaker 01:
Was more qualified.

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As of 2011.

[00:20:37] Speaker 07:
That's fine.

[00:20:39] Speaker 01:
That's fine.

[00:20:41] Speaker 07:
Taylor had three additional years of experience that factored into his selection for this position in 2014.

[00:20:49] Speaker 01:
I thought there was a two-year gap.

[00:20:51] Speaker 01:
Am I wrong?

[00:20:51] Speaker 01:
Is there a three-year gap?

[00:20:53] Speaker 01:
Are you including the hiring process time?

[00:20:56] Speaker 07:
I believe his affidavit speaks to the 2011 time period.

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And the job announcement was 2014.

[00:21:02] Speaker 07:
OK.

[00:21:02] Speaker 01:
Thanks.

[00:21:08] Speaker 07:
Well, Your Honor, that's the issue, is whether there is admissible evidence in the record from which a reasonable jury could conclude that

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the non-selection of Wilson was due to unlawful discrimination.

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And our view is that there is no such evidence in the record and that the court properly.

[00:21:31] Speaker 01:
No evidence or insufficient evidence.

[00:21:35] Speaker 07:
I think I'll say insufficient, Your Honor, from which a reasonable jury could make that conclusion.

[00:21:41] Speaker 01:
And I'm sorry, did I step on your questions, Judge Walker?

[00:21:44] Speaker 01:
I'm sorry.

[00:21:44] Speaker 04:
No, not at all.

[00:21:47] Speaker 01:
All right.

[00:21:48] Speaker 01:
So if you look at the posting for the job, where they wanted specialized experience, including overseeing the bank card program and supervising staff.

[00:22:00] Speaker 01:
And Wilson were to introduce admissible evidence, which she seems to have, of six years of experience managing the bank card program and directly supervising three individuals and indirectly supervising 66 others.

[00:22:14] Speaker 01:
And then the jury also heard

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that Mr. Taylor had, as he said repeatedly at his testimony, no bank card experience and very little supervisory experience, but to be sure you would have your evidence of the other skills that he had.

[00:22:33] Speaker 01:
Could a jury factor, a rational jury factor how closely Ms.

[00:22:42] Speaker 01:
Wilson's resume mapped onto

[00:22:45] Speaker 01:
the actual job description, could they factor that into a decision about whether there was pretext or discrimination, or would it be irrational to do that?

[00:22:58] Speaker 07:
I think the candidate's qualifications is a basis from which the jury could infer pretext in the event that one candidate was substantially more qualified than the other.

[00:23:15] Speaker 01:
Um, What evidence did they have?

[00:23:19] Speaker 01:
What evidence?

[00:23:20] Speaker 01:
Um, I think what, one of the things that was relied on here was, uh, that mysterious, is it Babich or Babich Babich Babich Babich.

[00:23:30] Speaker 01:
Um, and Morgan Loden talked about the evolution of the position.

[00:23:38] Speaker 01:
Um, other than them referencing that in terms of then

[00:23:45] Speaker 01:
describe Mr. Taylor's quali, after the fact, describing Mr. Taylor's qualifications, was there external evidence that the position had evolved so significantly in two-year period?

[00:24:04] Speaker 07:
I think that, you know, Director Babich was relatively new to the position that he had to fill here.

[00:24:12] Speaker 07:
The context of the

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announcement was the need for stronger internal controls and risk prevention, which required a broad set of skills that was different from what the position had demanded in the past.

[00:24:34] Speaker 01:
If evidence were introduced that Wilson had implemented internal control checklists for the bank card program and had worked with 66 program coordinators to ensure internal controls.

[00:24:45] Speaker 01:
And then the argument was that the position had evolved to emphasize internal controls.

[00:24:51] Speaker 01:
Could a rational jury factor that evidence in and determining whether this evolution was the basis for picking, was a genuine basis for picking Mr. Taylor over Ms.

[00:25:08] Speaker 01:
Wilson?

[00:25:09] Speaker 01:
And I even let Ms.

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Wilson out of the starting gate, honestly.

[00:25:12] Speaker 01:
She wasn't even allowed to interview.

[00:25:15] Speaker 07:
You don't see how... I just don't see how that... I'm just asking a narrow question.

[00:25:23] Speaker 01:
Not who wins.

[00:25:24] Speaker 01:
Yeah.

[00:25:25] Speaker 01:
Is there something irrational about a jury's reliance on that kind of those inferences and comparisons of evidence?

[00:25:30] Speaker 01:
They might be wrong and you might be able to disprove it, but is there something irrational as a matter of law about allowing a jury to weigh those things?

[00:25:39] Speaker 07:
I think those are facts in the record that... The juries would normally weigh.

[00:25:43] Speaker 07:
Can take into account.

[00:25:44] Speaker 07:
However, in this case, I don't see, I wouldn't be any inference from those facts that could give rise to pretext.

[00:25:54] Speaker 01:
I'm just, I'm going to add all this.

[00:25:56] Speaker 01:
We can add it all up together.

[00:25:57] Speaker 01:
We don't have to win everything on one of these, right?

[00:25:59] Speaker 01:
She doesn't, Wilson doesn't have to do that.

[00:26:01] Speaker 01:
So Morgan Lowden and Bobich both said that they were looking for an ability to lead projects and people and to lead change.

[00:26:09] Speaker 01:
And Taylor, I think it might've been three times.

[00:26:14] Speaker 01:
said he hadn't had supervisory roles.

[00:26:16] Speaker 01:
Maybe at the end, he'd finally had a little one.

[00:26:18] Speaker 07:
A jury could consider that.

[00:26:22] Speaker 01:
You wouldn't consider it contrary to law to allow a jury to rely on evidence like that as part of other things in deciding whether to infer discrimination or not or pretext.

[00:26:33] Speaker 07:
Well, I think what Taylor was referencing was that he wasn't a supervisor in the sense of,

[00:26:42] Speaker 07:
you know, being in a position to discipline people, hire, fire people.

[00:26:47] Speaker 07:
And I believe the agency was looking, considered supervisory experience to include, you know, supervising a project or leading a team.

[00:26:58] Speaker 01:
Oh, I thought they said lead people and projects.

[00:27:00] Speaker 01:
Am I wrong about that?

[00:27:03] Speaker 01:
You think they only wanted leading projects?

[00:27:05] Speaker 07:
Leading a team to accomplish a project.

[00:27:09] Speaker 07:
And he led a nine person team so that,

[00:27:13] Speaker 07:
I think from the agency's point of view, that will qualify as supervisory experience.

[00:27:21] Speaker 01:
There were some questions from Judge Walker about Morgan Lowden's testimony, her deposition, sorry, not testimony, on whether Ms.

[00:27:32] Speaker 01:
Burris had been assaulted at the interview stage.

[00:27:38] Speaker 01:
But Morgan Lowden said they didn't all sit together.

[00:27:40] Speaker 01:
They talked one at a time.

[00:27:43] Speaker 01:
with Mr. Babich, correct?

[00:27:45] Speaker 01:
M1J192?

[00:27:47] Speaker 07:
That was her testimony.

[00:27:48] Speaker 01:
Right.

[00:27:48] Speaker 01:
And so she didn't really know whether he'd talked to Ms.

[00:27:52] Speaker 01:
Burris or not.

[00:27:53] Speaker 01:
She just said, he's extremely thorough and detailed in knowing process.

[00:27:59] Speaker 01:
So that's what she was relying on.

[00:28:01] Speaker 07:
She was not present for a conversation between Babich and Burris regarding... And she hadn't even really asked Babich.

[00:28:09] Speaker 01:
There's nothing here to indicate she'd asked Babich about whether Ms.

[00:28:11] Speaker 01:
Burris was involved.

[00:28:12] Speaker 07:
She didn't inquire about their discussions regarding the selection, but there was no dispute.

[00:28:18] Speaker 01:
The admissible is evidence then?

[00:28:23] Speaker 07:
On what point?

[00:28:23] Speaker 01:
She's speculating that she thinks Mr. Babich would have talked with Ms.

[00:28:27] Speaker 01:
Burris, but she doesn't know.

[00:28:29] Speaker 07:
But there's no dispute that Ms.

[00:28:31] Speaker 07:
Burris reviewed the 47 resumes, including Wilson's.

[00:28:36] Speaker 01:
Well, she said she says it's just it's kind of confusing what she did or what she thought her role was because Judge Walker's pointed out that that she says she certainly wasn't involved in the final interview stage, Mr. Taylor.

[00:28:51] Speaker 01:
But she also says a couple of times, I have no basis for comparison when asked to compare the two of them.

[00:28:56] Speaker 01:
So that's what's kind of confusing.

[00:28:57] Speaker 01:
And it's you know, it's a it's a declaration.

[00:28:59] Speaker 01:
It's not a deposition where questions are asked.

[00:29:01] Speaker 01:
So it's kind of confusing.

[00:29:03] Speaker 01:
Well, the inferences are that would come from that.

[00:29:06] Speaker 07:
I don't see the confusion, Your Honor.

[00:29:09] Speaker 01:
I have no basis for comparison.

[00:29:12] Speaker 07:
Right, because she can't compare Babich versus Taylor, but she reviewed the 47 resumes.

[00:29:18] Speaker 01:
You mean Wilson versus Taylor.

[00:29:19] Speaker 01:
Well, then she would have a basis for comparison.

[00:29:21] Speaker 01:
If she had reviewed the resumes and she was aware of this evolution in the position, she'd have some basis.

[00:29:27] Speaker 01:
She wouldn't be able to evaluate their oral skills in an interview, but she would have a basis for comparing whether they were qualified

[00:29:37] Speaker 01:
Right.

[00:29:38] Speaker 07:
Based on the resumes that she reviews.

[00:29:40] Speaker 01:
She have been privy to this evolution in the position too.

[00:29:45] Speaker 07:
I don't think that that's covered specifically in the record, but it appears that Mr. Babich explained to both Morgan Loudon and Boris, you know, what they were looking for to fill the position.

[00:30:00] Speaker 01:
Okay.

[00:30:00] Speaker 01:
Thank you.

[00:30:00] Speaker 01:
Sorry.

[00:30:01] Speaker 01:
I've been, I've been too greedy here.

[00:30:03] Speaker 01:
My question asking.

[00:30:04] Speaker 01:
I apologize.

[00:30:05] Speaker 07:
I noticed my time is expired.

[00:30:08] Speaker 07:
And if there are no further questions, we'll rest on our brief and ask the court to affirm the district court's judgment.

[00:30:16] Speaker 06:
Thank you, Mr. Serino.

[00:30:18] Speaker 06:
Mr. Moore, we'll give you two minutes for a rebuttal.

[00:30:21] Speaker 03:
Yes, Your Honor.

[00:30:22] Speaker 03:
Thank you.

[00:30:23] Speaker 03:
Yes, I want to direct my attention to the statement that was made by counsel for DHS regarding

[00:30:34] Speaker 03:
Mr. Taylor indicated Mr. Taylor had three years of experience between 2011 and 2014 that may have been relevant to the bank hard job.

[00:30:47] Speaker 03:
I just wanted to say that that experience probably was not relevant in as much as Mr. Boyd who had supervised Mr. Taylor and who worked at the adjoining

[00:31:04] Speaker 03:
position also within the same department and who was in charge of bank cards would have known if Mr. Taylor had done bank card work because that bank card work would have had to come through his particular department.

[00:31:20] Speaker 03:
So any indication that Mr. Taylor would have picked up three years of experience between 2011 and 2014 regarding bank card is not accurate.

[00:31:37] Speaker 03:
And also one last issue, your honor, regarding internal controls.

[00:31:42] Speaker 03:
One of the issues in this case that was raised by the government was that my client did not have internal control.

[00:31:53] Speaker 03:
That's completely false.

[00:31:56] Speaker 03:
I indicated that in a deposition that she did have internal controls experience.

[00:32:01] Speaker 03:
And if you go back and look at

[00:32:03] Speaker 03:
the statements made in our statement of facts to which the government agreed to show that she had plenty of internal control experience in addition to the bank card experience.

[00:32:17] Speaker 05:
Thank you, counsel.

[00:32:19] Speaker 05:
Thank you to both counsel.

[00:32:20] Speaker 05:
We'll take this case under submission.