[00:00:00] Speaker 00: Case number 22-1767, Amir Cooper at Balance versus American University. [00:00:07] Speaker 00: Ms. [00:00:07] Speaker 00: Park for the balance, Mr. Rennie for the votes. [00:00:09] Speaker 03: Good morning, council. [00:00:23] Speaker 03: Ms. [00:00:24] Speaker 03: Park, please proceed when you're ready. [00:00:30] Speaker 00: Good morning, Your Honors, and may it please the court. [00:00:33] Speaker 00: My name is Sumi Park, representing Appellant Mr. Amir Cooper. [00:00:41] Speaker 00: Summary judgment, I would like to reserve two minutes for rebuttal. [00:00:46] Speaker 00: Summary judgment in this case was not warranted for two main reasons. [00:00:51] Speaker 00: One, because there was a genuine dispute of material fact regarding whether the [00:00:57] Speaker 00: But the reported comparators were similarly situated based on comparably serious acts. [00:01:13] Speaker 00: And second, there was evidence of inconsistent application of the progressive disciplinary policy. [00:01:23] Speaker 00: And third, the district court [00:01:27] Speaker 00: made its decision partly based on focusing on the irrelevant similarities. [00:01:33] Speaker 00: So similarities that were not actually considered, dissimilarities that were actually not considered by the decision makers. [00:01:42] Speaker 00: We also believe that the university did not show that it held a reasonable and honest belief in the reason for terminating him, which is that Cooper committed sexual harassment [00:01:55] Speaker 00: And lastly, if I have time, I would like to just briefly touch upon the suspension issue. [00:02:00] Speaker 00: But if I do not, I would like to respectfully rest and agree regarding that matter. [00:02:07] Speaker 00: First of all, Cooper provided evidence of similarly situated individual Lieutenant RS. [00:02:17] Speaker 00: For the first condition, I would like to just refer to her as the Lieutenant. [00:02:20] Speaker 00: There is no other Lieutenant that is relevant in this case. [00:02:23] Speaker 00: So Lieutenant R.S. [00:02:25] Speaker 00: was comparable to Cooper based on Wheeler v. Georgetown University Hospital, a case from this circuit. [00:02:35] Speaker 00: Because both, it was reasonably inferable and a reasonable jury could find that both the Lieutenant and Cooper were accused of committing sexual harassment. [00:02:49] Speaker 00: And the sexual harassment is a category of misconduct [00:02:53] Speaker 00: that is stated in the university's sexual harassment and discrimination policy. [00:03:00] Speaker 00: Like in Wheeler, Nurse Wheeler proposed several reported, proposed comparators. [00:03:08] Speaker 00: And the record in Wheeler showed that although their actions were sort of labeled slightly differently, Nurse Wheeler was fired for [00:03:21] Speaker 00: that performance and failure to follow the university's, excuse me, the hospital's policies and the proposed competitors had engaged in actions that involved misadministration of medicine and also. [00:03:37] Speaker 01: Is someone who commits 10 violations of policy comparable to somebody who commits only one violation of policy? [00:03:52] Speaker 00: Your honor is asking under Wheeler. [00:03:56] Speaker 01: Under under Wheeler under all the case law. [00:04:00] Speaker 00: I think based on the case law, the prior bad performance or prior misconduct can be relevant. [00:04:08] Speaker 00: In Wheeler, I believe Georgetown pointed out that Ms. [00:04:13] Speaker 01: Wheeler had... I'm not saying prior, I'm saying that there's an investigation and they conclude that there were 10 violations of policy [00:04:22] Speaker 01: Um, and then they have another person who has one violation of policy and they're the same category or those in everything else about them is the same. [00:04:33] Speaker 01: Are those two people comparable under our case? [00:04:40] Speaker 00: Um, I don't think the number of actions that constitute the violation of the one policy should matter too much as long as the [00:04:50] Speaker 00: and the employer can assess the seriousness of the actions just based on the overall perspective of the misconduct. [00:05:00] Speaker 00: So one single incident leading to one violation of the university policy may be just as serious as several not so serious violations of the same policies. [00:05:13] Speaker 01: I don't understand how that can be. [00:05:15] Speaker 01: I mean, if you were given a quiz [00:05:19] Speaker 01: you know, school, there's 20 questions. [00:05:23] Speaker 01: There's a person who misses one question supposed to get the same grade as somebody who misses 10 questions. [00:05:31] Speaker 00: So I may be understanding your honor's question incorrectly, but as it applies to this case, I know that Cooper has like [00:05:39] Speaker 00: four or five complaints that were made against him and they found him in violation of level three of the university policy and I think the lieutenant has like two complaints against her but the underlying the two complaints are several different incidents where she engaged in the in the malicious sexual gossip so [00:06:03] Speaker 00: In that sense, we all think that it should make a difference. [00:06:07] Speaker 00: There are several incidents that led to the complaint or the number of the complaint. [00:06:13] Speaker 03: Maybe one way to ask the same question that Judge Wilkins was getting at is this. [00:06:17] Speaker 03: Suppose that two people are asked the same question. [00:06:20] Speaker 03: Did you get an A in the class? [00:06:23] Speaker 03: And one of them got an F and the other one got a B. They both could say no. [00:06:28] Speaker 03: But doesn't it seem like there's a pretty big difference between the person who got the B and the person who got the F? [00:06:35] Speaker 00: So in your honors as hypothetical, the person who wrote the F, is that Cooper? [00:06:40] Speaker 03: I'm not even necessarily trying to relate it to Cooper. [00:06:42] Speaker 03: I'm just saying that just because it's some level of generality, you could describe two people as similarly situated in the abstract. [00:06:50] Speaker 03: For instance, two people who didn't get an A seems like for a lot of reasons, they're not similarly situated because one failed and the other one just barely missed the A. So it doesn't seem like it's enough as a matter of law [00:07:04] Speaker 03: to say that both the Lieutenant and Cooper would at a high level of generality be described as similar in that they engaged in misconduct or that they engage in misconduct that had some sexual component when the underlying conduct actually is quite distinct. [00:07:25] Speaker 00: But I actually don't think this wide, well, I don't want to call it wide, but quasi-wide reading of Wheeler is inconsistent with the other precedents from this circuit. [00:07:36] Speaker 00: For example, I'm not aware of a case where the court just zoned in on the factual differences to consider their actions. [00:07:47] Speaker 00: to find their actions to be completely dissimilar. [00:07:50] Speaker 00: For example, in Burleigh, I do believe the court there said, well, the underlying misconduct is different, but it's because it's contributed differently to the train derailment, which was the reason why the plaintiff was fired. [00:08:04] Speaker 00: And the court found that Amtrak reasonably found that the reported comparator had less of a role, and so his misconduct was less serious. [00:08:17] Speaker 00: than the plaintiffs, and that justified viewing them in a dissimilar manner. [00:08:24] Speaker 00: But to answer your Honor's question, so we do understand that there are some factual discrepancies between Cooper and the lieutenants [00:08:41] Speaker 00: misconduct, but I think it just comes down to how the university characterized it. [00:08:49] Speaker 00: One was characterized as using a pseudonym and approached the woman in an inappropriate manner, and the other one was accused of gossiping. [00:08:58] Speaker 00: But at the end of the day, they both engaged in actions that purportedly involved inappropriate sexual conversations. [00:09:11] Speaker 00: And if you look at the university's sexual harassment policy, there's like 10 different categories of misconduct involving sex. [00:09:20] Speaker 00: So sexual harassment is barely one of them. [00:09:22] Speaker 00: There's sexual assault, rape, more serious categories as well. [00:09:27] Speaker 00: Arguably, RS's conduct falls into two of them, but one of them is sexual harassment. [00:09:33] Speaker 00: her actions and Cooper's overlap, and it should be viewed similarly, we believe, even if there are factual discrepancies, because they would have to be judged by the same standard if they are reasonably in violation of the same [00:09:51] Speaker 00: policy same standard, then it does not make sense to differentiate them on the small differences when the record does not show that it was the small differences that made the discipline distinct and different. [00:10:09] Speaker 03: I know you wanted to reserve some time for rebuttal. [00:10:16] Speaker 03: I do. [00:10:17] Speaker 03: Make sure my colleagues don't have further questions for you at this time. [00:10:21] Speaker 03: We'll give you some time for rebuttal. [00:10:23] Speaker 03: Thank you. [00:10:23] Speaker 03: Thank you. [00:10:24] Speaker 03: Mr. Remy. [00:10:31] Speaker 04: Maybe I will just go to the suspension issue, unless you all think I'm happy to take any questions on the termination issue. [00:10:38] Speaker 04: But everything that has come out during argument just now, where these are different types, that's our position, different categorically different violations by these two individuals. [00:10:51] Speaker 04: Um, but the suspension issue, uh, this is the chamber speaks is a relatively new case. [00:10:57] Speaker 04: I thought I'd spend a moment on that. [00:11:01] Speaker 01: So why isn't your first argument that the district court ruled that there was no clear error which is required to grant the motion for reconsideration because the suspension wasn't raised in the complaint. [00:11:18] Speaker 01: Why isn't your argument that that there's that that ruling should be affirmed? [00:11:26] Speaker 04: Your honor, so the district court agreed to the argument subsequently. [00:11:31] Speaker 04: Our position is that it wasn't your exactly that it wasn't raising the complaint. [00:11:36] Speaker 04: Just raise it. [00:11:38] Speaker 01: You say that in your brief, but I mean, I don't understand why you don't say it stronger because. [00:11:45] Speaker 01: District courts first ruling was. [00:11:48] Speaker 01: under Rule 59E, you don't prevail because there's no clear error, full stop. [00:11:54] Speaker 01: And then the district court says, nevertheless. [00:11:57] Speaker 01: So as a good district court judge would do, they have belt and suspenders. [00:12:04] Speaker 01: Why aren't you relying on the belt? [00:12:06] Speaker 01: Why are you going to the suspender? [00:12:08] Speaker 04: Well, I just thought we'd hit the district court's main opinion, Your Honor. [00:12:14] Speaker 04: They just sort of go right past it. [00:12:17] Speaker 04: Judge goes right past that issue. [00:12:21] Speaker 04: I do believe that not only was it not raised in the complaint, but he took deposition testimony where Mr. Cooper testified that, yeah, his claim in the case is that he was terminated inappropriately. [00:12:32] Speaker 04: He actually added a little flavor to that. [00:12:34] Speaker 04: He said the investigation was conducted unfairly. [00:12:36] Speaker 04: So it wasn't as if he was just a yes or no answer. [00:12:39] Speaker 04: He gave his statement. [00:12:40] Speaker 04: And so maybe we should have emphasized that a little more, Judge, but the district court [00:12:48] Speaker 04: I don't really understand how the district court can say there was no clear and then go on to say, nevertheless, it was raised appropriately. [00:12:55] Speaker 04: That's probably why I didn't focus on that. [00:12:57] Speaker 04: There are point judges that make a lot of, maybe it's just about the suspenders argument, but I don't believe it was raised appropriately. [00:13:03] Speaker 01: If, if, if, if, if determination ultimately, um, should be upheld, then what is the injury from him being paid, put on paid administrative leave? [00:13:17] Speaker 01: because if the termination was correct, then he's fired and he gets no salary. [00:13:25] Speaker 01: So it's almost a benefit for him to be put on paid administrative leave for a while until the termination happens. [00:13:36] Speaker 01: I'm just not understanding what the injury is here. [00:13:39] Speaker 04: We don't believe there's an injury that's why our arguments this no adverse action here the argument has always been that the injury is his lack of access to the pool because he was participating in the law fit program and get an underlying health condition and so swimming fit very well with his position this is the argument the course the point is that he was suspended from going [00:14:05] Speaker 04: suspended with pay. [00:14:06] Speaker 04: In other words, after the accusations by these five lifeguards, right, that he was sexually harassing them, there's no, it's undisputed that he was told not to go back to the pool. [00:14:15] Speaker 04: Now there's some dispute over whether that was an obstruction versus direct order. [00:14:19] Speaker 04: There's no doubt there was a conversation with a captain where he was told not to go back to the pool. [00:14:24] Speaker 04: So there is no. [00:14:25] Speaker 01: The district court didn't seem to resolve that. [00:14:30] Speaker 01: Acknowledge that there was a dispute about whether it was an order or whether it was just a suggestion. [00:14:36] Speaker 04: We agree with the district court and that it doesn't matter. [00:14:39] Speaker 04: There was some indication that he was not to use the pool and there's no. [00:14:43] Speaker 04: And the and it's undisputed that. [00:14:47] Speaker 04: He was not with his suggestion and destruction order. [00:14:50] Speaker 04: All those words have been used that came that was directed at him before the paid suspension. [00:14:56] Speaker 04: So in other words. [00:14:58] Speaker 04: The the. [00:14:59] Speaker 04: plaintiff's hook into a damage from this paid suspension, which is the lack of use of pool. [00:15:08] Speaker 01: It's not related to suspension. [00:15:10] Speaker 01: Isn't it materially different if a supervisor says, you know, maybe you shouldn't do that anymore or shouldn't go there anymore versus don't go there anymore? [00:15:23] Speaker 01: I mean, why aren't those two things materially different? [00:15:28] Speaker 04: Your Honor, because the [00:15:30] Speaker 04: The reason that distinction doesn't matter here is because, so the alleged damage from the suspension, the suspension from the university's workforce, paid suspension, is I wasn't allowed to use the pool. [00:15:43] Speaker 04: But whether it was just a suggestion or whether it was once he goes in order, once he goes back to the pool, it's clear he was not going to be able to continue using the pool whether they put him on paid suspension or not. [00:15:56] Speaker 04: And we all agree it's reasonable in these factual circumstances [00:16:00] Speaker 04: Remember the police department using an alias for talking to students at the pool that telling him not to use the pool while they investigate this is not an adverse employment action and is perfectly reasonable to do. [00:16:12] Speaker 04: They'd be derelict if they let him go back to the pool in that circumstance. [00:16:16] Speaker 04: And my only point here is that I agree with your honor that there is no adverse employment action because there is no damage from the paid suspension because he was not going back [00:16:28] Speaker 03: But I think there's a difference between saying there's no adverse action and saying that there's no adverse action that's based on an illicit characteristic. [00:16:36] Speaker 03: It is, isn't it? [00:16:37] Speaker 03: It is adverse not to be able to go to the pool. [00:16:39] Speaker 03: It's just everybody can understand why he can't. [00:16:43] Speaker 04: Well, I mean, there's two steps there, Your Honor, right? [00:16:45] Speaker 04: There has to be an adverse employment action. [00:16:47] Speaker 04: And the next question is, is it based on an illicit characteristic? [00:16:50] Speaker 04: Just the court ruled. [00:16:51] Speaker 04: And the last argument here, a winning argument, is that [00:16:56] Speaker 04: Whether it's going back to the pool and getting a paid suspension, none of that had anything to do with race or gender, right? [00:17:01] Speaker 04: That's clear. [00:17:02] Speaker 04: But even the step before that, should we even get to that point, is being on a paid suspension or being not allowed to use the pool in these circumstances, an adverse employment action. [00:17:12] Speaker 03: But I don't understand. [00:17:12] Speaker 03: I mean, on the last point, you might well have a forceful argument, which is the district court did say that the administrative leave, paid administrative leave, was not based on race or any illicit characteristic. [00:17:25] Speaker 03: But after Chambers, your argument, I guess, is that even if an employer decided to place people on administrative leave, albeit with pay, purely on the basis of their race, that that's not actionable under Title VII. [00:17:41] Speaker 04: Well, your honor, that's a kind of looking at it in a, in sort of the last point first, right? [00:17:47] Speaker 04: I think our point is that to have an act to, but I think it has to be your art. [00:17:51] Speaker 03: It's not looking at the last. [00:17:53] Speaker 03: Can I finish? [00:17:55] Speaker 03: It's not, it's not looking at the last point first, because if I'm taking the last point out of play, I'm saying let's assume it is race-based. [00:18:05] Speaker 03: Your argument, I think, as I understand your brief is that an employer nonetheless, [00:18:12] Speaker 03: can lawfully decide to place people on administrative leave based on the race, because placing somebody on administrative leave is not an adverse employment act. [00:18:23] Speaker 04: That is our right. [00:18:25] Speaker 04: And and the reason for that is because an adverse employment action is the first inquiry in a title seven case. [00:18:34] Speaker 04: And [00:18:35] Speaker 04: And so chambers, right? [00:18:38] Speaker 04: So there was a Douglas case that said, when it's not an obvious adverse impact, you have to have a potentially tangible harm. [00:18:44] Speaker 04: And I guess the question is, does chambers alleviate that and say that that no longer exists, that everything that happens at work is an adverse employment action? [00:18:52] Speaker 04: Or does chambers take the position now I read it, which is that a transfer isn't obvious. [00:18:57] Speaker 04: It does have an obvious harm because one of the lines in that opinion is that the job you hold is essence to the employment relationship. [00:19:04] Speaker 04: So, of course, if you don't get the job you want, whether your pay would have been the same in your hours doesn't make a difference. [00:19:10] Speaker 04: I don't think that ruling obviates the need for an adverse employment action. [00:19:14] Speaker 03: They may well not, but I guess the question is being placed on administrative leave without pay. [00:19:20] Speaker 03: With pay? [00:19:21] Speaker 03: I mean, I'm sorry, with pay, even with pay. [00:19:23] Speaker 03: Being placed on administrative leave even with pay you think is not an adverse employment action. [00:19:27] Speaker 04: I think that when there is allegations of sexual harassment and someone is placed on administrative leave with pay for an dependency on investigation and that leave ends when the investigation ends, it's actually in the start. [00:19:41] Speaker 04: What if the investigation takes five years? [00:19:44] Speaker 04: There could be a limit, Judge. [00:19:45] Speaker 04: I'm not asking, saying there's never a reasonableness standard. [00:19:52] Speaker 04: But to be reasonable, what is an employer supposed to do? [00:19:55] Speaker 04: I mean, what if it's in an office? [00:19:57] Speaker 03: People are all building around the same place. [00:20:01] Speaker 03: All of that just goes to whether it's a valid administrative leave, and it may well be a valid administrative leave. [00:20:07] Speaker 03: It doesn't mean that administrative leave is not an adverse employment action as a matter of law. [00:20:12] Speaker 03: It just means that an administrative leave very often can be totally justified, and it may be necessary in a lot of situations. [00:20:19] Speaker 03: The question is whether an administrative leave based on race is just [00:20:24] Speaker 03: as a matter of law non-actionable under Title VII, which is your position. [00:20:28] Speaker 03: I mean, you maybe won't be right that administrative leave in the circumstances of this case and circumstances in many cases is entirely reasonable and necessary to administer a safe and effective workplace. [00:20:39] Speaker 03: That just seems to me to be quite different from saying administrative leave, even with pay, as a matter of law is never actionable. [00:20:45] Speaker 04: We can take that argument further then, right? [00:20:47] Speaker 04: We can say, well, the provision of napkins in certain lunchrooms [00:20:52] Speaker 03: Is that an adverse employment action? [00:20:54] Speaker 03: Well, of course, I mean, you can come up, you can say, is a non adverse employment action an adverse employment action? [00:20:59] Speaker 03: The answer to that is going to be no. [00:21:01] Speaker 03: The question is whether an administrative leave is a matter of law, not an adverse employment action. [00:21:05] Speaker 03: And I'm just, I'm not sure how that could be the case, even if it's with pay, because going on administrative leave, even with pay, [00:21:14] Speaker 03: can very well be seen as adverse to employees. [00:21:17] Speaker 03: They'd rather be in the workplace, not everybody, but certainly some people would rather be in the workplace. [00:21:21] Speaker 03: There's all kinds of things you're missing out in the workplace. [00:21:23] Speaker 03: Now, again, it may be justified that you're on administrative leave, but the notion that as a matter of law, administrative leave, even without pay, is non-actionable because it's never an adverse employment action seems to me to be quite a surprising argument. [00:21:38] Speaker 04: There are a lot of courts that have, there's a lot of case law behind that, but [00:21:44] Speaker 04: But your honor, we're not taking the position that administrative leave with pay, no matter what the circumstances or the length, could never be an adverse employment action. [00:21:55] Speaker 04: I agree. [00:21:55] Speaker 04: That would be unreasonable. [00:21:59] Speaker 04: But looking at it not for the issue of was it based on race or not, without getting to that issue, say in these factual circumstances, is placing someone on administrative leave. [00:22:10] Speaker 02: The length of it for one month, the length of the investigation and the district court was that your only argument against the motion for reconsideration? [00:22:19] Speaker 02: No, you're not. [00:22:19] Speaker 02: There were three arguments. [00:22:20] Speaker 04: There was the other two. [00:22:22] Speaker 04: There were. [00:22:22] Speaker 04: It wasn't raised below that non adverse employment action. [00:22:27] Speaker 04: and that there's no evidence that it was based on race because obviously he wasn't on leave. [00:22:31] Speaker 02: It wasn't pretextual. [00:22:32] Speaker 04: There's no evidence at all that it's related. [00:22:36] Speaker 02: This was a motion for reconsideration of which the judge ruled after writing summary judgment. [00:22:43] Speaker 02: Our review of the summary judgment is de novo. [00:22:47] Speaker 02: Is that also true for a motion for reconsideration is de novo review? [00:22:53] Speaker 04: I understand. [00:22:54] Speaker 04: I believe that's the case. [00:22:56] Speaker 04: I thought it was abuse of discretion. [00:22:59] Speaker 04: Well, abuse of discretion on the granting of the reconsideration, right? [00:23:04] Speaker 04: But then the judge then rules grant summary judgment in the motion for reconsideration. [00:23:09] Speaker 02: So it's sort of right that in the motion for reconsideration, he revises summary judgment. [00:23:16] Speaker 02: Essentially the court does. [00:23:17] Speaker 02: Essentially the district court says... So why should that be de novo review? [00:23:22] Speaker 02: So if the judge said this is not an adverse employment action, we could affirm on the basis that there's no reasonable juror who could find it to be protectual. [00:23:34] Speaker 02: Yes, Your Honor, but he couldn't from that basis. [00:23:36] Speaker 04: So the court does essentially amend the summary judge's motion to address this issue. [00:23:41] Speaker 04: in the reconsideration. [00:23:42] Speaker 04: And the court does say that there's no evidence that it's respect. [00:23:44] Speaker 04: It's both. [00:23:45] Speaker 04: You get both the issues. [00:23:46] Speaker 04: The court finds that no upper section and no evidence. [00:23:50] Speaker 01: And isn't it true that plaintiff did not dispute that the university was given these complaints and was investigating these complaints before he was placed on paid administrative? [00:24:05] Speaker 04: Oh, yes, there's no dispute of the timeline. [00:24:06] Speaker 04: There's no dispute as to what the students said during the investigation. [00:24:10] Speaker 04: There's there's no dispute as to the that's all in dispute. [00:24:13] Speaker 01: That's all. [00:24:14] Speaker 01: So isn't that essentially undisputed that there is no pretext? [00:24:19] Speaker 01: So your honor, that's our business. [00:24:23] Speaker 03: Make sure my colleagues don't have additional questions for you. [00:24:25] Speaker 03: Thank you. [00:24:27] Speaker 03: Spark will give you the two minutes you asked for for rebuttal. [00:24:37] Speaker 00: Thank you. [00:24:39] Speaker 00: So um, [00:24:40] Speaker 00: To answer Judge Wilkinson's latest question about the reason for the suspension, we think that is a brand new reason that the appellee provided at this level when it says that he was basically suspended because he was being investigated. [00:24:59] Speaker 00: He was never suspended until he reportedly violated an order [00:25:07] Speaker 00: We think that it matters whether or not he received an order because it goes directly to pretext. [00:25:13] Speaker 00: We think there was enough evidence to show the falsity of the reason that he did not violate an order. [00:25:19] Speaker 00: He wasn't given an order, but even if he was, he didn't violate it. [00:25:23] Speaker 00: Because later, Sergeant Salazar gave him permission to go to the pool, which raises an inference that there was never a formal order banning Cooper not to go to the pool. [00:25:32] Speaker 00: Otherwise, Sergeant Salazar would have been aware and not so easily allow Cooper to go. [00:25:37] Speaker 00: So drawing all inferences in favor of the Plenary Cure Honors, we do think that it shows strong evidence of pretext based on the falsity and the comparators, the same two officers that we suggest [00:25:53] Speaker 00: the dispatcher of BC and Lieutenant RS were not similarly suspended. [00:25:59] Speaker 00: And there's also evidence of those that were also immediately suspended, which is one of them is an African-American female officer and the other is a Hispanic male officer. [00:26:10] Speaker 00: So we do think that supports Cooper's race and sex claims respectively. [00:26:21] Speaker 00: Chief Judge Srinivasan, you brought up a concern about the termination. [00:26:26] Speaker 00: I think you were suggesting maybe I'm wrong that they found him guilty, basically. [00:26:35] Speaker 00: And maybe you thought that the lieutenant's case was a little different, but the lieutenant was also investigated. [00:26:44] Speaker 00: She was investigated by the police department, but they, you know, we think that the investigation itself is faulty and a little bias in her favor. [00:26:55] Speaker 00: Sergeant Queen had a conversation with Captain Morris in person, like expressing his concerns that this investigation was not going to be conducted fairly based on his experience of the police department. [00:27:07] Speaker 00: Sergeant Queen is an African-American male also. [00:27:10] Speaker 00: And Captain Morris reassured him that normal investigation is going to be, I'll make sure it's fair, but he did not receive any discipline. [00:27:23] Speaker 00: So we think, we don't think the formal investigation by HR differentiates them because they did commit the same infractions under the same policy. [00:27:37] Speaker 00: Yeah, so we believe that. [00:27:40] Speaker 00: that Wheeler should have been and should be applied to this case. [00:27:45] Speaker 03: Thank you. [00:27:46] Speaker 00: Thank you. [00:27:47] Speaker 03: Thank you, counsel. [00:27:48] Speaker 03: Thank you to both counsel. [00:27:49] Speaker 03: We'll take this case under submission.