[00:00:00] Speaker 00: Case number 21, 1597 large a balance versus Mary B. Garland and his official capacity as attorney general of the United States. [00:00:10] Speaker 00: Mr. Cuba for the balance. [00:00:12] Speaker 00: Mr. T for the ability. [00:00:14] Speaker 02: Morning, Council. [00:00:15] Speaker 01: Cuba, please see when you're ready. [00:00:17] Speaker 01: Good morning, Your Honor, and may it please the court. [00:00:19] Speaker 01: David Cuba on behalf of the plaintiff appellant Laura Ramo. [00:00:23] Speaker 01: Your Honor, this case arises under Title VII of the Civil Rights Act, a statute and a title that was enacted largely to prevent discrimination and retaliation in the workplace. [00:00:34] Speaker 01: We respectfully submit that reversal and remand is necessary here to achieve those purposes. [00:00:40] Speaker 01: Miss Ramos brought an action under Title VII after her employer, the Federal Bureau of Investigation, retaliated against her for filing a formal complaint with the Equal Employment Office in 2011. [00:00:51] Speaker 01: The district court aired when granting summary judgment on Miss Ramos' retaliation claim. [00:00:58] Speaker 01: Now, the actions at issue here span past 2011. [00:01:02] Speaker 01: They go on for several years. [00:01:04] Speaker 01: I want to spend most of my time today talking about the events and actions in 2011, because I think those events and actions are sufficient alone to establish a retaliation claim that should have survived summary judgment. [00:01:16] Speaker 01: In May of 2011, Ms. [00:01:18] Speaker 01: Ramos filed an informal EEO complaint with the EEO alleging that her supervisor was discriminating against her in the workplace. [00:01:28] Speaker 01: In late August of 2011, she filed a formal complaint raising the same allegation. [00:01:34] Speaker 01: Around the same time, her assistant section chief, whose name was Edward Finnegan, had offered, made an offer to Ms. [00:01:42] Speaker 01: Ramos to transfer her to a different unit, to the cyber counterintelligence unit. [00:01:48] Speaker 01: This would be a unit with a new supervisor, new coworkers, new work area, new opportunities, and new responsibilities. [00:01:56] Speaker 01: Ms. [00:01:56] Speaker 01: Ramos accepted that offer in an email on September 9th, 2011, and her new would-be supervisor began looking forward to and preparing for her arrival. [00:02:06] Speaker 03: But she didn't really accept the offer because she said, I'll do it on, I think her words were, as an interim solution. [00:02:16] Speaker 03: Then she used the words interim and she had been told this is a permanent job. [00:02:21] Speaker 03: If you get transferred, that's your job until you find another job. [00:02:26] Speaker 01: You're honored referring to an argument that the Bureau made after the fact to explain why it didn't view her email as an acceptance. [00:02:35] Speaker 01: Her email says, I accept your offer. [00:02:38] Speaker 01: If you look at the email that was sent to her, it explains what the offer was, and it expressly says, when you take this new position, you can continue to look for other job opportunities. [00:02:47] Speaker 01: So when Ms. [00:02:48] Speaker 01: Ramos says, I'll accept it as an interim measure, that's what she's telling him. [00:02:52] Speaker 01: Essentially, yes, I'll go do this and I'll continue to look for other job opportunities. [00:02:57] Speaker 01: If Mr. Finnegan had interpreted it the way that he said he did after the fact, one would expect he would have emailed her back and said that. [00:03:06] Speaker 01: And that's not what his email back to her said. [00:03:08] Speaker 01: He never mentioned that until after this action was filed. [00:03:14] Speaker 05: doesn't matter whether she accepted it or not or isn't the point that there was an opportunity that was proposed negotiations at most were going on or she accepted and then it was just cut off from her. [00:03:25] Speaker 01: It doesn't matter for several, for two different reasons. [00:03:28] Speaker 01: One, at a minimum, we're talking about a factual issue, right? [00:03:32] Speaker 01: With respect to whether she accepted it. [00:03:34] Speaker 01: And two, simply taking away a transfer offer from an employee who's been trying to transfer out of her job because of discrimination would itself be adverse enough to support a retaliation. [00:03:47] Speaker 05: And so her complaint was with this particular person, the acting chief, Diana Race. [00:03:56] Speaker 05: I was just wondering, in the succeeding efforts to transfer, was Ms. [00:04:01] Speaker 05: Race still her supervisor or she was only acting? [00:04:03] Speaker 05: So at what point was she gone? [00:04:05] Speaker 01: She was gone, I believe, in December. [00:04:07] Speaker 01: So not long after 2011, correct? [00:04:10] Speaker 01: In December of 2011, so not long after she would have followed her formal complaint by November of 2011, there's email evidence from Mr. Finnegan describing this Ramos as a known entity within her unit. [00:04:23] Speaker 01: There's other evidence that after that people were aware of her having engaged in protected activity and ultimately whether whether Asian race was there. [00:04:34] Speaker 01: Even in August of 2011, we think it's still adverse action because when you offer to transfer somebody, they file a formal EEO complaint. [00:04:45] Speaker 01: The next thing you do is rescind that offer and say, we're not going to transfer you. [00:04:49] Speaker 01: We think that is sufficiently adverse, regardless of whether her supervisor race was still in that unit or not. [00:04:55] Speaker 05: Just that Ortiz Diaz case seems to couch this in terms of trying to get away from the discriminatory supervisor, having better opportunities. [00:05:04] Speaker 05: But the discriminating supervisor is no longer an issue after December of 2011. [00:05:10] Speaker 01: Correct. [00:05:11] Speaker 01: I think that it is fair to analogize this case some to RTCS. [00:05:16] Speaker 01: Of course, there was a discrimination case. [00:05:18] Speaker 01: Here we're talking about a retaliation case. [00:05:20] Speaker 01: The standard for an adverse action in a retaliation case is broader than it is in a discrimination case. [00:05:27] Speaker 01: This court recognized that, most recently in chambers, the Supreme Court recognized it in Burlington North v. White. [00:05:33] Speaker 01: In order to show retaliation, it really turns on whether or not a reasonable employee [00:05:39] Speaker 01: would be dissuaded from engaging in protected activity. [00:05:43] Speaker 01: We would submit that a reasonable employee would certainly be dissuaded from engaging in protected activity if it knew the cost of doing so would be to forfeit an opportunity to transfer from their existing unit. [00:05:56] Speaker 01: I personally think that would be true in just about any line of work. [00:05:59] Speaker 01: But the record here, I think, supports that it is absolutely true, somewhere like the FBI, where agents depend on transferring to other units to develop their career. [00:06:09] Speaker 01: It's normal. [00:06:10] Speaker 01: It's commonplace. [00:06:11] Speaker 01: And so when you take away the ability to transfer from an FBI agent, you are necessarily harming their career prospects, if you will. [00:06:23] Speaker 01: to just take a step back. [00:06:24] Speaker 01: There are three requirements for a retaliation claim. [00:06:27] Speaker 01: There's no dispute here that Miss Ramos was engaged in protected activity. [00:06:31] Speaker 01: We don't think there could be any reasonable dispute that the FBI's decision to take away her [00:06:39] Speaker 01: transfer offer or to not let her transfer transfer after she accepted it whichever way you want to interpret that we think there is sufficient evidence that that was falsely related to her protected activity and a lot of title seven cases sometimes it's hard to show that causal connection between a protected activity and an adverse action here we have direct unrefuted evidence that uh Mr. Finnegan [00:07:04] Speaker 01: told her in no uncertain terms we're not going to transfer you because you have filed your formal EEO complaint. [00:07:09] Speaker 03: Can we move on to the other claims that issue the temporary reassignment to backup program manager and the um I guess denials of transfer to Boston and New York and IOD um for those um [00:07:34] Speaker 03: Who were the decision-makers and is there any evidence that was presented that those decision-makers were aware of for EEO activity? [00:07:45] Speaker 01: Sure. [00:07:46] Speaker 01: You know, a lot of times in the record, it's not exactly clear who's making the decisions, but just to focus on the removal of Ms. [00:07:54] Speaker 01: Ramlis' supervisory responsibilities over the double agent program. [00:07:58] Speaker 01: The person who announced that change was an individual named Mr. Jett. [00:08:04] Speaker 01: This was in 2013 that he announced in March of 2013. [00:08:08] Speaker 01: Agent Jett had submitted an affidavit as part of Ms. [00:08:12] Speaker 01: Ramos's formal EEO complaint, the investigation process there in 2012. [00:08:17] Speaker 01: So I think it's fair to assume he was aware of her protected activity. [00:08:21] Speaker 01: Okay. [00:08:21] Speaker 03: What about the others after the IOD and the Austin in New York? [00:08:26] Speaker 01: Sure. [00:08:28] Speaker 01: Again, there is evidence in the record that Mrs. Ramos, as Chatham Command, were aware of her protected activity. [00:08:34] Speaker 01: In May of 2013, a litigation hold memo went around to all the employees who'd worked with her, who basically said, you know, she has filed this complaint in federal court. [00:08:46] Speaker 01: And I think, I don't want to get the month long- When is the date you gave me? [00:08:52] Speaker 01: The litigation hold went out when? [00:08:54] Speaker 01: May of 2013. [00:08:55] Speaker 01: She filed her complaint of March 2013. [00:08:59] Speaker 01: Mid-March, it was served mid-March. [00:09:02] Speaker 01: End of March, she was removed from her supervisory position. [00:09:06] Speaker 01: May of 2013, the litigation hold memo went around. [00:09:09] Speaker 01: She was denied transfer around, kind of around the same time in July of 2013. [00:09:15] Speaker 01: She had a conversation with her then acting unit chief who said he was aware of her EEO complaint, who was aware of her federal district court complaint. [00:09:25] Speaker 01: And another individual, [00:09:27] Speaker 01: Either her acting unit chief or assistant unit chief mentioned that he had spoken to the EEO about it and at one point even told her that she was not allowed to talk to the EEO without clearing it with him first. [00:09:42] Speaker 01: So I think there's sufficient evidence [00:09:44] Speaker 01: to show that her superiors were aware of this. [00:09:48] Speaker 01: In fact, this goes all the way back to 2011, right? [00:09:51] Speaker 01: When in November, her assistant section chief, Mr. Finnegan again, described her as a known entity and not as the way you'd want to be known. [00:10:01] Speaker 01: It's what the email says. [00:10:02] Speaker 02: On the question of whether those decisions were retaliatory. [00:10:07] Speaker 02: So with the Boston and New York transfers, denial of the transfers there, the ultimate basis for the decision was because of a lack of seniority. [00:10:14] Speaker 02: I think that's hard to. [00:10:16] Speaker 01: The Boston in New York were because she didn't meet the criteria because she had received a negative performance. [00:10:23] Speaker 00: Oh, that's right. [00:10:23] Speaker 00: That's right. [00:10:24] Speaker 00: I'm sorry. [00:10:24] Speaker 01: But you're speaking about the IOD. [00:10:26] Speaker 01: Yeah, of course. [00:10:28] Speaker 01: And in that one, it was what they say in their brief is that it was a lack of seniority, but they refer to the deputy assistant director Smith's decision to select an individual agent Larson. [00:10:40] Speaker 01: over other candidates, but Deputy Assistant Director Smith didn't have Agent Ramos, Ms. [00:10:48] Speaker 01: Ramos as an option because the IOD transfer was a two-stage process. [00:10:54] Speaker 01: So the first selection, the first decision was made further down the chain of command, closer to Ms. [00:10:59] Speaker 01: Ramos, and they selected Ms. [00:11:02] Speaker 01: Larson over Ms. [00:11:03] Speaker 01: Ramos. [00:11:04] Speaker 01: We sought discovery on the reasons for that selection. [00:11:07] Speaker 01: We never got discovery on it. [00:11:08] Speaker 02: So I guess that has to do with Brooks, I think. [00:11:11] Speaker 02: And I guess I didn't see anywhere in your opening brief where you actually made an argument specific to that IOD transfer swap. [00:11:20] Speaker 02: Is that a swap or transfer? [00:11:21] Speaker 02: I can't remember. [00:11:22] Speaker 02: Denial on retaliatory motive. [00:11:27] Speaker 01: I think our claim would be that it was retaliatory because it was based on protected activity. [00:11:34] Speaker 01: They chose not to transfer her because they were retaliating against her for engaging in protected activity. [00:11:40] Speaker 01: That was the motivation for it. [00:11:42] Speaker 02: I'm not sure I follow your... I guess I didn't see anything in the opening brief that gave a reason why we wouldn't accept [00:11:50] Speaker 02: the government's argument that there's no genuine issue as to what the basis of the decision was, it didn't have to do with retaliation. [00:11:59] Speaker 01: It had to do with... Well, I guess our point is that the government's response that it has to do with seniority is focused on the D.A.D. [00:12:08] Speaker 01: Smith decision, the second level, whereas the real discrimination that we allege, the real retaliation, pardon me, that we allege occurred at that first decision level. [00:12:16] Speaker 03: But you don't have any evidence [00:12:18] Speaker 03: about what happened there. [00:12:20] Speaker 03: You say you sought discovery and didn't get it, but that's not one of the grounds for your appeal. [00:12:25] Speaker 03: You're not saying that the district court [00:12:28] Speaker 03: should have granted a motion to compel that we had for discovery on that second level, so to speak, right? [00:12:36] Speaker 01: Right. [00:12:36] Speaker 01: No, that's not our argument. [00:12:37] Speaker 01: And we asked the decision maker there. [00:12:40] Speaker 03: How are we defined that it was discrimination, that you have evidence that that was discriminatory when you say you don't have any evidence about how that was done? [00:12:49] Speaker 01: Right, I think we rely on decisions that have held that when the plaintiff comes forward with evidence that adverse actions were taken in close temporal proximity to protected activity, that is sufficient to push the burden back on the government or the other side here. [00:13:06] Speaker 01: and they haven't come forward with any evidence of a non-retaliatory reason that really withstands scrutiny. [00:13:13] Speaker 01: The only non-retaliatory reason they identify in their brief, as they did below, is this idea that D.A.D. [00:13:19] Speaker 01: Smith selected Larson because she had more seniority. [00:13:24] Speaker 01: They never offered any evidence as to why the decision was made by Ms. [00:13:30] Speaker 01: Ramos' more immediate superior. [00:13:33] Speaker 02: Right, and I guess that none of that is in your opening brief. [00:13:35] Speaker 02: Okay, that's that's my only point is that you engage with that in your reply. [00:13:41] Speaker 02: But in the opening brief, the argument is really about spillover retaliation from what happened in 2011, which which is an argument, right? [00:13:50] Speaker 02: It's not that it's not an argument. [00:13:51] Speaker 02: It's just that the particular argument you're making now, which is to controvert what the district court and the government relied on below seniority just wasn't in your [00:14:01] Speaker 01: Okay, I apologize for that. [00:14:02] Speaker 01: I thought we did raise in our opening brief, the protected activity that was in close temporal proximity to the transfer. [00:14:10] Speaker 02: Yeah, the temporal proximity. [00:14:12] Speaker 02: But all I'm saying is understand that doesn't have to do with the first stage, second stage and the particular reason that seniority isn't a valid basis. [00:14:19] Speaker 02: That's just saying that in order to infer retaliation here, all you need to do is look back and see that there was retaliation at the outset in 2011 and that continues to carry forward. [00:14:28] Speaker 01: That's fair, Your Honor. [00:14:29] Speaker 01: I understand, and that's fair. [00:14:30] Speaker 01: We did not make that argument, and we briefly made it after the government raised it and its opposition to try to explain the lack of retaliatory. [00:14:38] Speaker 02: And I guess here's my question about the notion that what happened in 2011 continues to carry forward and we ought to kind of see the taint as [00:14:48] Speaker 02: applying on a limitless basis going forward, which is that the, suppose we agree with you on 2011, just, just for argument purposes, we agree with you. [00:14:59] Speaker 02: The explanation given by the supervisor was that there's an active EEO investigation going on right now. [00:15:06] Speaker 02: And while that's cause you filed a formal complaint and while that's going on, I'm just going to play hands off. [00:15:12] Speaker 02: And, um, [00:15:14] Speaker 02: But that explanation in and of itself is temporarily limited. [00:15:18] Speaker 02: So it's not the type of thing. [00:15:19] Speaker 02: It'd be one thing if the record were that we really dislike you because you filed an EEO complaint and the whole [00:15:28] Speaker 02: Division is against you because we don't stomach this, you know, you're being disloyal and that's not gonna happen. [00:15:35] Speaker 02: And that type of thing, I could see why you could say, well, that continues to go forward and when does that stench ever get removed? [00:15:41] Speaker 02: I don't know. [00:15:42] Speaker 02: But this one actually by its very explanation was tethered to that particular process. [00:15:47] Speaker 01: I think that's fair, Your Honor, insofar as if our claim was only that, let's say, she didn't get a transfer in 2015, and our only evidence of this retaliatory is that 2011 email. [00:16:00] Speaker 01: And the EEO process is completed. [00:16:01] Speaker 01: Everything's completed about her 2011 complaint. [00:16:05] Speaker 01: And I do think there comes a point where you can no longer rely on that 2011 email that that explanation or in that refusal to transfer. [00:16:14] Speaker 01: There does come a point where you can no longer rely on that. [00:16:17] Speaker 01: I don't think we were at that point in 2013. [00:16:20] Speaker 01: I don't know if you could rely on that alone, if that was all the evidence you had for retaliatory animus. [00:16:26] Speaker 01: But again, she didn't stop engaging in protected activity and people, her coworkers, people in her chain of command, didn't stop being aware of that protected activity in 2011. [00:16:36] Speaker 02: But nobody after that, I mean, there's no indication that for any of the protected activity that occurred later, [00:16:42] Speaker 02: that the reason for denying whatever was requested like a subsequent transfer had to do with the pending nature of some EEO complaint in the same way that was the case in 2011. [00:16:53] Speaker 02: And I don't even think you allege that. [00:16:54] Speaker 01: No, we don't allege that, and that's correct. [00:16:56] Speaker 01: We do not have the direct evidence of causation for the 2013 and 2014 alleged activity that we do for the 2011 activity. [00:17:07] Speaker 01: For the 2011 refusal to transfer Ms. [00:17:10] Speaker 01: Ramos, we think there's irrefutable evidence of causation there. [00:17:14] Speaker 01: For the later retaliatory action, we rely on more circumstantial evidence. [00:17:18] Speaker 01: We tried to create an evidentiary issue that we think was sufficient to at least reach the jury. [00:17:24] Speaker 02: On the Boston and New York transfer denials, so the stated basis is that the eligibility criteria weren't met because of the 2013 performance [00:17:37] Speaker 01: and why isn't that just dispositive? [00:17:41] Speaker 01: Right. [00:17:41] Speaker 01: I understand your question and that is a hard case for us, but I don't think we would want to waive that argument because here the criteria is directly tied to what we alleged below as retaliatory actions. [00:17:55] Speaker 01: When Ms. [00:17:55] Speaker 01: Ramos received [00:17:59] Speaker 01: reviews, annual evaluations. [00:18:02] Speaker 01: She received an evaluation from a supervisor who'd been her supervisor for less than six months that was considerably lower than anything she had received before. [00:18:09] Speaker 01: The FBI then relies on that as the basis for denying a transfer. [00:18:14] Speaker 05: And didn't you move to a mental complaint to challenge the performance? [00:18:18] Speaker 05: ratings. [00:18:20] Speaker 01: Exactly. [00:18:20] Speaker 01: We sought to bring that in as a separate allegation of retaliatory conduct. [00:18:25] Speaker 01: Uh, the district court denied that and then it allows the FBI to pardon me. [00:18:30] Speaker 05: I'm sorry. [00:18:30] Speaker 05: So, but, so, but for purposes of the transfer requests, they relied on the performance evaluation and that seems dispositive of the transfer request, but you could, if you were allowed to amend your complaint, independently challenge the performance evaluation. [00:18:45] Speaker 01: That's exactly right. [00:18:46] Speaker 01: And that's really why, why, you know, we would preserve our argument on this because as it is, you know, the FBI was able to keep out the performance evaluation at the, at the pleading stage. [00:18:58] Speaker 01: And then later on the proceedings say, Oh no, we didn't transfer her because she had this bad evaluation. [00:19:03] Speaker 02: But you'd have to win on being able to allow you and on getting a reversal of the denial of amendment. [00:19:08] Speaker 02: Right. [00:19:08] Speaker 02: Leave to a major complaint. [00:19:09] Speaker 02: Yeah. [00:19:11] Speaker 01: I think that's ultimately correct. [00:19:12] Speaker 05: So why didn't you raise that earlier? [00:19:15] Speaker 05: Why didn't you try to challenge the performance evaluation earlier? [00:19:18] Speaker 05: Why did you wait? [00:19:20] Speaker 01: Why did we seek an appeal on that before? [00:19:22] Speaker 05: No, I'm now talking about your motion to amend your complaints. [00:19:27] Speaker 05: It was denied by the district court and one of the factors for that is your timing. [00:19:33] Speaker 05: Why did you move to amend with respect to the performance evaluations at the time that you did instead of raising it earlier in the case, perhaps in your first complaint? [00:19:42] Speaker 01: Right, I don't know if there have been a few different amended complaints and a few different motions to amend that were denied. [00:19:51] Speaker 01: We did have a couple of complaints that were denied because we hadn't exhausted the administrative process yet. [00:19:57] Speaker 01: So Ms. [00:19:57] Speaker 01: Ramos filed additional EEO complaints as I referred to the additional protected activity. [00:20:02] Speaker 01: We tried to add those allegations, those alleged acts to our complaint before the EEO process had been completed. [00:20:11] Speaker 01: and the district court said we couldn't do that. [00:20:13] Speaker 03: When was the EEO process exhausted? [00:20:17] Speaker 03: Was there an EEO claim made for the negative performance evaluation of 2013? [00:20:25] Speaker 03: All right. [00:20:26] Speaker 01: That's that's the that's the year of the performance. [00:20:28] Speaker 01: Correct. [00:20:29] Speaker 01: Yes, it may have been early 2014, your honor, and I don't want to mistake the record. [00:20:33] Speaker 01: I cannot recall if that was part of one of her EEO complaints. [00:20:37] Speaker 01: I suspect that it was because Ms. [00:20:39] Speaker 01: Ramos was very diligent when it came to getting things in front of the EEO and trying to preserve her rights. [00:20:45] Speaker 01: But I don't want to say that without being 100% sure of it. [00:20:49] Speaker 01: I know it for certain. [00:20:50] Speaker 05: Well in the district court's denial of your motion to amend it she didn't accuse you of being dilatory or anything. [00:20:56] Speaker 05: Right. [00:20:58] Speaker 05: That wasn't one of her bases. [00:20:59] Speaker 05: That was one of her bases. [00:21:01] Speaker 05: No it was not. [00:21:02] Speaker 01: It wasn't. [00:21:02] Speaker 01: It was not. [00:21:03] Speaker 01: Thank you your honor. [00:21:04] Speaker 01: I didn't think it was because she was the one who had had us complete the administration. [00:21:08] Speaker 01: She did conclude it was unduly delayed. [00:21:10] Speaker 02: She did cite the undue delay criteria. [00:21:13] Speaker 02: I don't think so. [00:21:14] Speaker 01: I think she did say it was late in time, but not unduly late. [00:21:21] Speaker 01: So in other words, she at one point she denied a motion to amend because she said a lot has happened. [00:21:27] Speaker 01: You know, we're at the close of discovery. [00:21:29] Speaker 01: These events happened later, but she didn't say that we had, you know, [00:21:33] Speaker 03: uh dragged our heels or done anything improper in terms of moving to amend because again we moved to amend i thought specifically she specifically referenced undue delay but i could be wrong well she she definitely referenced that that there would be prejudice and i thought that that the district court said undue delay but cut to the heart of the matter you've got to convince us that there was an abuse of discretion what was the abuse of discretion [00:21:58] Speaker 01: I would say the abuse of discretion began with the way that she treated the retaliatory conduct in 2011. [00:22:14] Speaker 01: I guess we would just say that under the standard for amendment, which is typically freely given, of course, that free, freely given leave becomes less so as the case goes on. [00:22:25] Speaker 01: We would just submit that clearly these events are related to the events that are in the complaint. [00:22:31] Speaker 01: We're talking about the performance evaluation today as a basis for them denying a transfer. [00:22:36] Speaker 01: That's part of our complaint. [00:22:38] Speaker 01: So her conclusion that they weren't sufficiently related to be part of the complaint, we would say was an abusive discretion as subsequent proceedings have sort of that's that's another item which you can correct me if I'm wrong and you can rebuttal if I'm wrong. [00:22:50] Speaker 02: And I never mind being corrected. [00:22:52] Speaker 02: I thought in the in the opening brief, I didn't see an argument that there was an abuse of discretion. [00:22:59] Speaker 02: in the district court's determination that the seeking of leave to amend was unduly delayed and prejudicial. [00:23:07] Speaker 02: I think you made arguments that that should have been granted because it was wrong to think that it would have been futile, because as a matter of law, you actually had enough. [00:23:15] Speaker 02: But I didn't see anything in the opening brief that talked about, that took on the district court's determination. [00:23:19] Speaker 02: Whether it was sufficiently related. [00:23:21] Speaker 02: That it was unduly delayed and unduly prejudicial to have these. [00:23:25] Speaker 01: No, I don't think we challenged that. [00:23:27] Speaker 01: I'm not sure that the court had ruled that way against us. [00:23:31] Speaker 05: So if I may, looking at the transcript now, it seems that in the context of undue delay, she said that granting your motion would unduly delay this action or cause undue prejudice. [00:23:42] Speaker 05: She wasn't saying that you unduly delayed in filing your motion on these claims. [00:23:47] Speaker 05: And I think that's an important distinction. [00:23:49] Speaker 01: Correct. [00:23:50] Speaker 01: And that's my recollection as well. [00:23:52] Speaker 01: And if we were speaking past one another, Your Honor, I'm happy to address the question of whether it would unduly delay the proceedings and not whether we unduly delayed in seeking leave to a man. [00:24:05] Speaker 02: She found undue prejudice. [00:24:07] Speaker 02: Pardon me. [00:24:07] Speaker 02: She said it would be unduly prejudicial to the government. [00:24:11] Speaker 01: But not because of anything we did wrong. [00:24:13] Speaker 01: I guess I don't know where the prejudice is, especially given the way we're already talking about a long time since the events took place. [00:24:24] Speaker 01: You know, it would, it would be nice to have all of all of the various acts that we're taking again. [00:24:29] Speaker 01: Miss Ramos. [00:24:30] Speaker 01: Treated in a single case that she didn't have to file a separate complaint. [00:24:33] Speaker 01: She has a second complaint pending now about some. [00:24:36] Speaker 01: Later retaliatory acts, I'm not sure. [00:24:40] Speaker 01: really granted that discovery had taken place. [00:24:44] Speaker 01: Um, but we hadn't sought, obviously, since we hadn't had our complaint amended, we hadn't sought any additional discovery on these new allegations or claims. [00:24:52] Speaker 01: I'm not sure that it would have really created a whole lot of new work. [00:24:56] Speaker 01: Um, but that doesn't seem like a good basis for for hypothetical good basis for denying leave to amend. [00:25:02] Speaker 01: But in the abstract, I think that would have been a better thing to me. [00:25:05] Speaker 03: Isn't isn't the general point that [00:25:10] Speaker 03: look, I have a summary judgment motion, which if it has merit will end the case. [00:25:18] Speaker 03: And I have a motion to amend the complaint, which if I grant means that I can't resolve this case and get it over with. [00:25:29] Speaker 03: We have to go back and do discovery, et cetera, et cetera. [00:25:35] Speaker 03: And it's going to be another year before I can resolve it. [00:25:40] Speaker 03: And, you know, all good cases must come to an end, you know, um, that are bad. [00:25:49] Speaker 03: Um, I mean, isn't that basically what the district court saying? [00:25:53] Speaker 03: And why isn't that just, uh, I guess what I'm trying to find out is like hone in on if our standard of review is deferential, which is what an abuse of discretion, um, standard is where [00:26:10] Speaker 03: Where is the abuse there? [00:26:13] Speaker 01: Right? [00:26:14] Speaker 01: Take it taking about the beginning of your question when you talk about resolving summary judgment. [00:26:18] Speaker 01: I guess one is we don't think we never thought obviously that summary judgment should have been resolved against us. [00:26:24] Speaker 01: I don't think our motion to amend proceeded, you know, briefing being finished on the summary judgment motion followed by the government. [00:26:32] Speaker 03: Do you think it was filed before the summary judgment briefing was finished? [00:26:38] Speaker 01: I know it was filed before, yes, it was filed before the summary judgment briefing was finished. [00:26:44] Speaker 01: There were certain delays and stays in the case and was it filed before the opening brief for summary judgment? [00:26:49] Speaker 01: I think so because I didn't see anything from the government moving to strike it or saying, hey, you can't amend your complaint on the summary judgment. [00:26:57] Speaker 05: I don't know that we were... I thought discovery was still open. [00:26:59] Speaker 05: I could be wrong, but that was my recollection. [00:27:02] Speaker 03: That may be right here. [00:27:03] Speaker 03: That timing is important. [00:27:05] Speaker 03: I hated nothing more as a district court judge and seeing the summary judgment from one side and then getting a motion to amend from the other side. [00:27:16] Speaker 03: I thought we were at the point where we're going to. [00:27:20] Speaker 01: As a practitioner, I hate getting a motion to amend after filing a summary judgment, so I can totally appreciate where you're coming from on that. [00:27:27] Speaker 05: Could you check your records and answer that on rebuttal? [00:27:31] Speaker 05: Explain the timing of your motion to amend. [00:27:34] Speaker 05: Yes, whether discovery was still ongoing and whether the timing of it was due to the fact that she had at that point exhausted her claims. [00:27:43] Speaker 02: Right. [00:27:45] Speaker 02: And the relevant motion to amend with the 2015 one because there was other other ones. [00:27:49] Speaker 02: There was one of them that doesn't matter anymore because you filed a new lawsuit, right? [00:27:52] Speaker 02: Or somebody called a new lawsuit. [00:27:53] Speaker 01: Yeah. [00:27:53] Speaker 01: I think if we're speaking about the 2015, when I think your honor is right, that discovery was still open. [00:27:58] Speaker 01: Certainly they hadn't filed a motion for summary judgment on the entire case in 2015. [00:28:06] Speaker 02: My colleagues have additional questions for you this time. [00:28:09] Speaker 02: Thank you counsel. [00:28:10] Speaker 02: Later from government now. [00:28:13] Speaker 02: Mr. T. [00:28:24] Speaker 04: Good morning. [00:28:25] Speaker 04: May it please the court. [00:28:26] Speaker 04: Sean Teep on behalf of the government. [00:28:29] Speaker 04: I want to address a number of the arguments made by appellant and clarify the record. [00:28:34] Speaker 04: I'll start with the 2013-2014 transfer request by Ms. [00:28:40] Speaker 04: Ramos. [00:28:41] Speaker 04: I think the panel has hit on the right points, which are number one, that the actual decision makers [00:28:49] Speaker 04: for those transfer decisions. [00:28:51] Speaker 04: There's no evidence in the record that they had knowledge of Ms. [00:28:55] Speaker 04: Ramos's protected activity or certainly not protected activity within the temporal scope that, you know, the courts say, well, we can infer perhaps some retaliation because it occurs right after a protected activity. [00:29:11] Speaker 04: And so, for example, with the International Operations Division, it was a swap of supervisory special agents. [00:29:19] Speaker 04: The decision-maker there was Deputy Assistant Director Smith. [00:29:23] Speaker 04: There's no evidence in the record that Ms. [00:29:25] Speaker 04: Smith was aware of, I guess, in this point, this is October of 2013, that she was aware of... Does there have to be specific evidence that a particular person was aware, or is it just enough to know [00:29:40] Speaker 02: But it was generally out there. [00:29:42] Speaker 04: No, according to this court's Talavera decision, you need to have evidence, at least at summary judgment. [00:29:49] Speaker 04: Now, if you're talking about a motion dismissed and whether or not there's a prima facie evidence or pure fish case has been made. [00:29:58] Speaker 04: But at summary judgment, you need to have evidence. [00:30:01] Speaker 04: that the decision maker was knowledgeable of the protected activity because otherwise the action of that decision maker would not be because of the complainants protected activity. [00:30:15] Speaker 05: We can infer that though. [00:30:16] Speaker 05: And I want to ask you about when Ms. [00:30:20] Speaker 05: Ramos was temporarily reassigned from the GAOP program. [00:30:25] Speaker 05: She had been the program manager for that. [00:30:27] Speaker 05: She went out on medical leave. [00:30:29] Speaker 05: and she had been back for two months. [00:30:32] Speaker 05: And on March 19th, she serves the FBI with her complaint. [00:30:35] Speaker 05: Then on March 28th, JET announces that Anthony Wagner is the new DAOP manager, relegating her to the backup program manager. [00:30:47] Speaker 05: And he says this was supposed to help her with her medical condition, but she'd been back for two months already at that point. [00:30:54] Speaker 05: And he waits until a week after she files her complaint to do that. [00:31:00] Speaker 04: Two points, Your Honor. [00:31:01] Speaker 04: Number one, there's no evidence in the record that Mr. Jett was aware of Ms. [00:31:06] Speaker 04: Ramos filing a federal court complaint, number one. [00:31:09] Speaker 04: Number two, Mr. Jett had raised with Ms. [00:31:14] Speaker 04: Ramos while she was on leave in January, so before the alleged protected activity that supposedly would be relied on for retaliation. [00:31:25] Speaker 04: um and said I listen I I'm being swamped because he was the acting unit chief had his own responsibilities he was taking on um the double agent program um responsibilities while Miss Ramos was out I'm getting swamped I want to you know bring someone in to help me out and I understand Judge Pan saying well you know by the time that um this actually happened [00:31:50] Speaker 04: um it was um in in march but that's just the function of the fact that he couldn't find someone to do a temporary detail this individual tony wagner he was going to be retired he had time and availability and so they bring him in and they don't this all for the jury to decide i mean the timing seems like it could support her claim and we could just let the jury well according to woodruff peters uh timing is is is not sufficient [00:32:18] Speaker 04: if there is a legitimate explanation for the action and here the jury would decide that. [00:32:26] Speaker 04: No, but the question here is, and again, that the plaintiff or the appellant has to come forward with evidence to rebut the explanation to say that what Mr. Jett said was pretextual. [00:32:40] Speaker 04: And there's no evidence in the record to suggest that Mr. Jett was making up this explanation for why he was reassigning Ms. [00:32:50] Speaker 04: Ramos temporarily [00:32:52] Speaker 04: to be the backup while she recovered from her injuries and her medical leave. [00:32:59] Speaker 04: And so what we're saying is on the double agent program reassignment, there's two problems for appellate here. [00:33:07] Speaker 04: One is that [00:33:08] Speaker 04: There's insufficient evidence that it was taken because of her protective activity. [00:33:14] Speaker 04: And number two, as we've argued below, there's also no material adverse action here because one of the things that this court looks to in determining whether or not just a change in work assignments is material is, well, is there a significant [00:33:33] Speaker 04: difference and diminishment in the responsibilities. [00:33:36] Speaker 04: And while this program was Ms. [00:33:39] Speaker 04: Robinson's highest profile program, she did testify that she had other high profile programs. [00:33:44] Speaker 04: And so when you look at the entire context, it's clear that this was not a material adverse action as the district court had found. [00:33:53] Speaker 05: But the materiality of the responsibilities is generally a jury question. [00:33:59] Speaker 04: The standard by this court is that under Sokolsky and has been supported in other cases, that there needs to be a significant difference and diminishment in responsibilities. [00:34:11] Speaker 04: And that's a question that this court can make. [00:34:15] Speaker 02: And so... Oh, in 2011? [00:34:17] Speaker 02: Yes. [00:34:18] Speaker 02: So there's just evidence in the record that the reason that the transfer wasn't moved on is that she filed an EEO complaint. [00:34:25] Speaker 02: That's just, that's the government's own testimony. [00:34:30] Speaker 02: an indication in the email that she got. [00:34:33] Speaker 02: That has to go to the jury at that point, it seems like, because that is retaliation. [00:34:38] Speaker 02: It's not necessarily bad faith. [00:34:40] Speaker 02: I'm not suggesting that somebody bore ill will and thought that there was supposed to be a penalty here or anything like that, but it is a reaction to the filing of a formal EEO complaint. [00:34:51] Speaker 02: And it just seems like, just as a matter of law, that at least goes to the jury, because there's direct evidence [00:34:58] Speaker 02: filing of the formal EEO complaint was reacted to by withdrawing a potential transfer that otherwise would have been made available? [00:35:06] Speaker 04: Respectfully, Your Honor, the government disagrees. [00:35:08] Speaker 04: And there are two important points to make with regard to the 2011 transfer. [00:35:14] Speaker 04: First is that a decision [00:35:17] Speaker 04: here by Mr. Finnegan, to defer to the formal EEO process is not likely to dissuade a reasonable employee from engaging in the EEO process. [00:35:31] Speaker 02: That's the test under Burlington Northern. [00:35:33] Speaker 02: Really? [00:35:33] Speaker 02: So if somebody gets, if a supervisor just comes to it, a subordinate and says, here's the deal, [00:35:38] Speaker 02: You can file the formal EEO complaint if you want to, but I'm just letting you know if you do that, we're not going to give you your transfer. [00:35:45] Speaker 02: We're just going to let that play out. [00:35:46] Speaker 04: There's an important distinction in this case. [00:35:50] Speaker 04: This isn't a case in which Ms. [00:35:52] Speaker 04: Ramos was put in for a transfer. [00:35:54] Speaker 04: and was denied for a transfer. [00:35:56] Speaker 04: Again, we have to start with where this all begins, and that is a complaint about Diana Race's claim for discrimination that was made informally in May of 2011. [00:36:07] Speaker 04: What Ms. [00:36:08] Speaker 04: Ramos said is that to resolve my discrimination complaint, I would take a transfer. [00:36:15] Speaker 04: Mr. Finnegan, he decided that he will try and find a transfer location for Ms. [00:36:22] Speaker 04: Ramos. [00:36:23] Speaker 04: He was unsuccessful, or at least there was, as Judge Wilkins stated earlier in raising the interim measure, there, according to Mr. Finnegan, there was not an acceptance of what he was offering, which was a permanent reassignment. [00:36:38] Speaker 04: And so what Mr. Finnegan told Ms. [00:36:41] Speaker 04: Ramos on September 9th is, I've been notified that the EEO matter has now been made formal, and the next step is mediation. [00:36:49] Speaker 04: Since there's now an official formal process underway to address the issue, I think the most appropriate course of action is to allow that process to determine where you go and under what circumstances. [00:37:02] Speaker 04: And so what Mr. Finnegan was doing was he was participating in the EEO process, trying to find an informal way of resolving this. [00:37:11] Speaker 04: That did not seem to work at the time that Ms. [00:37:14] Speaker 04: Ramos had now, as of August 31st, [00:37:17] Speaker 04: file the formal complaint, he learns subsequently that, hey, this is not formal. [00:37:23] Speaker 04: The next process is mediation. [00:37:25] Speaker 04: I'm going to hand this off to the mediator. [00:37:28] Speaker 04: And what is, I think, also important for Your Honor to understand is that in that August 31 email, Mr. Finnegan... So we have a case Foreman that involved pretty similar situations. [00:37:41] Speaker 02: It also involved an EEO matter, and it also involved an explanation to the effect that [00:37:46] Speaker 02: not bad faith, totally good faith, but we're gonna hold off on your request because of the process and we held that that goes forward. [00:37:56] Speaker 04: Well, I'm not familiar with that case, Your Honor, but in this case, where Mr. Finnegan is handing off, and what I was going to say is that, copied on that August 31st email is Peter Giancomplos. [00:38:09] Speaker 04: He's the person that Mr. Finnegan identified as being responsible for the mediation. [00:38:14] Speaker 04: That is at JA389. [00:38:17] Speaker 04: Days later, Mr. Finnegan provides Mr. Giannopoulos a download on the back and forth about his efforts to informally find a transfer for Ms. [00:38:26] Speaker 04: Ramos and also provides his availability for mediation sessions. [00:38:31] Speaker 04: That's at JA 6-1-10. [00:38:34] Speaker 04: Ms. [00:38:34] Speaker 04: Ramos actually withdraws from the mediation process, and that's at JA1039. [00:38:41] Speaker 04: And so the context, and as the Supreme Court in Burlington, Northern says, context matters. [00:38:46] Speaker 04: In the context of this case, what we have here is Ms. [00:38:50] Speaker 04: Ramos engaging in the EEO process, trying to have an informal resolution. [00:38:55] Speaker 04: The FBI is trying to do that, but it didn't succeed. [00:39:01] Speaker 04: And so what happens is, [00:39:02] Speaker 04: the process moves forward. [00:39:04] Speaker 04: And so Ms. [00:39:04] Speaker 04: Ramos, in some sense, was left no worse off than if Mr. Finnegan had not even tried to provide a transfer option. [00:39:15] Speaker 04: The next step is the formal mediation process. [00:39:19] Speaker 02: So in your view, it would have been fine if Mr. Finnegan went to Ms. [00:39:21] Speaker 02: Ramos and said to her, before she files a formal EEO complaint, everything else stays the same. [00:39:28] Speaker 02: He goes to her before she files a formal EEO complaint and says, it's up to you. [00:39:32] Speaker 02: If you file the formal EEO complaint, I can't help you out with the transfer. [00:39:36] Speaker 02: It's up to you. [00:39:36] Speaker 02: You can file the formal EEO complaint if you want to. [00:39:39] Speaker 02: But if you do, I'm done with the transfer. [00:39:42] Speaker 02: But that's not what you said. [00:39:43] Speaker 02: But I'm asking you, could he do that? [00:39:47] Speaker 02: Would that have been fine? [00:39:48] Speaker 02: Would you still have the same argument, which is? [00:39:51] Speaker 04: Well, again, I think it would be difficult for a reasonable jury to conclude that the man who has just spent a couple of months trying to find her a transfer then tries to interfere in the EEO process in such a way. [00:40:07] Speaker 02: What I thought what we were talking about is whether somebody would be dissuaded. [00:40:12] Speaker 02: And I guess what I'm putting to you is a hypothetical where instead of after she files a formal EEO complaint, he says, I can't do anything more. [00:40:21] Speaker 02: I'm not going to do anything more with your transfer request now because I'm going to leave it in the EEO's hands. [00:40:27] Speaker 02: Instead of doing that, if you went to her before she filed the formal EEO complaint, he says, I understand you're thinking about filing a formal EEO complaint. [00:40:34] Speaker 02: Here's the deal. [00:40:34] Speaker 02: You could do that. [00:40:36] Speaker 02: But if you do that, I'm going to withdraw from helping you with this transfer. [00:40:41] Speaker 02: And would you say that she should look at that and think, well, that's not going to affect my decision about whether to file the formal EEO complaint. [00:40:47] Speaker 02: It's not going to dissuade me at all. [00:40:49] Speaker 02: I'm just going to do what I'm going to do anyways, as if he never said that. [00:40:51] Speaker 04: I think a reasonable jury, a reasonable employee would not be dissuaded. [00:40:56] Speaker 04: They would say, OK, well, the resolution to my discrimination claim is not occurring now. [00:41:03] Speaker 04: Therefore, I need to continue with my discrimination claim. [00:41:07] Speaker 04: So no, I don't think under even that hypothetical, which is not the facts of this case, that an unreasonable employee would be dissuaded. [00:41:16] Speaker 04: But there's one other point that I think is important, and I want to correct the record. [00:41:20] Speaker 04: And that is that when Mr. Finnegan made his decision to defer and hand off to the EEO process, the person that Piz Ramos was complaining about was no longer the supervisor. [00:41:35] Speaker 04: And I'll direct you to JA 601 and 602, where Mr. Finnegan is making reference to Ken James, who was her new supervisor. [00:41:49] Speaker 04: And this is one of the things that makes us different from the Ortiz-Diaz case, as relied upon by [00:41:54] Speaker 04: appellant in the briefing, and that is Ms. [00:41:58] Speaker 04: Ramos is not being left with the person that she feels is discriminated against her. [00:42:04] Speaker 04: She has a new supervisor. [00:42:07] Speaker 04: And so at the time that Mr. Finnegan makes the decision that, hey, we now have a mediation process, which all evidence suggests that he was going to participate in because he's giving the mediator his schedule for availability, is that [00:42:22] Speaker 04: She had a new supervisor who was happy to have her again. [00:42:26] Speaker 04: Those 2 sites support that. [00:42:30] Speaker 04: She would be, you know. [00:42:32] Speaker 04: Continuing on with your process and otherwise, as the district court found. [00:42:39] Speaker 04: She was, was not materially harmed because that's, that's what the court uses. [00:42:43] Speaker 04: Like, okay, is there a material injury here? [00:42:45] Speaker 04: And that's how we decide, is this going to dissuade a, uh, a reasonable employee from, um, from, from engaging in the EO process? [00:42:55] Speaker 05: I'm sorry. [00:42:55] Speaker 05: So you're saying that she files her complaint against this particular supervisor and by the time the transfer is withdrawn, the supervisor has changed. [00:43:09] Speaker 04: That's correct, Your Honor. [00:43:10] Speaker 04: That's correct. [00:43:12] Speaker 05: And so what happens to the EEO complaint once the supervisor isn't her supervisor? [00:43:16] Speaker 05: Doesn't become mooted or anything? [00:43:17] Speaker 04: No. [00:43:21] Speaker 04: But again, her claim continues. [00:43:24] Speaker 04: I mean, this is, in some sense, this is the process. [00:43:28] Speaker 04: The process, the EEO process is set up so that there is an informal complaint, there's a period of time in which the employer and employee can figure out, okay, do I really want [00:43:36] Speaker 04: continue with this, is there an informal resolution? [00:43:39] Speaker 04: Mr. Finnegan participates in that. [00:43:42] Speaker 04: And then, you know, by the time he gets an answer, nine days for his offer, which again, he didn't think was ultimately accepted because, you know, there's evidence in the record that she wanted a temporary detail. [00:43:55] Speaker 04: He couldn't do that. [00:43:57] Speaker 04: And so, but the evidence in the record is that [00:44:00] Speaker 04: you know, by the time, um, September nine rolls around, um, there's just a new process and that's just how the process works. [00:44:09] Speaker 05: So for purposes of material adversity, you're saying that it doesn't have the elements from our T's Diaz that she would have an opportunity to get away from the discriminatory supervisor. [00:44:20] Speaker 05: But there's also evidence that she, I guess a little bit later on, she's not become a known quantity. [00:44:26] Speaker 05: Somebody who's a, [00:44:27] Speaker 05: Complainer does that affect the analysis on material adversity? [00:44:30] Speaker 05: She can get out of. [00:44:31] Speaker 05: The job where. [00:44:34] Speaker 05: she has a reputation and have sort of a fresh start and better opportunities. [00:44:39] Speaker 04: Well, I guess I think appellant has to pick what argument she wants. [00:44:45] Speaker 04: With the known quantity thing, that's a known entity. [00:44:51] Speaker 04: That was a remark in November of 2011 with respect to her grieving elements of a performance review. [00:45:00] Speaker 04: And but, you know, that doesn't that doesn't make what happened in September. [00:45:07] Speaker 04: material and so but it's stating something that might have happened earlier like that the statements made in november but she might become a known entity my time before i mean there's a lot of a lot of speculation here was a known entity at that time you know when it ripened exactly that's what i'm trying to do right but i think ultimately if i were to encapsulate the the entire case here is there's just a lot of um failures of evidentiary proof [00:45:35] Speaker 04: We see that in the transfer, where there's no evidence that the decision makers were aware. [00:45:41] Speaker 04: There's no argument or evidence of pretext for the explanations for these various decisions. [00:45:49] Speaker 04: The district court got it correct. [00:45:50] Speaker 04: And I understand that I've run over. [00:45:52] Speaker 04: And so if there's any other questions, I'm happy to take it from the honors. [00:45:57] Speaker 05: Could you address the denial of the motion for leave to amend? [00:46:00] Speaker 04: Oh, yes. [00:46:01] Speaker 05: Because I understand that the timing was that [00:46:05] Speaker 05: The motion for leave to men was filed July 31st of 2015. [00:46:09] Speaker 05: I'm sorry, the motion was filed August 25th of 2015, but the performance evaluation claim exhaustion happened on July 31st of 2015. [00:46:18] Speaker 05: So that seems timely. [00:46:20] Speaker 04: Right the issue here with the quote couple things on the the amendment as one of your honors noted plaintiff hasn't articulated a basis that judge Jackson's decision not to amend on certain issues. [00:46:36] Speaker 04: Was an abuse of discretion and and with respect to the grieving, you know, the, the, the performance evaluation that was an allegation that was made in the context of other allegations about how the FBI allegedly. [00:46:54] Speaker 04: handled her leave in 2013 and her return from leave. [00:46:59] Speaker 04: And so there were a variety of allegations that Judge Jackson said, OK, here's a bunch of stuff that's new. [00:47:06] Speaker 04: It's not related to the original case. [00:47:09] Speaker 05: And so the allegation was not that performance evaluation was in retaliation for the same protected activity, different protected activity. [00:47:18] Speaker 05: Is that what you're saying? [00:47:19] Speaker 04: No, what I'm saying is that appellant hasn't demonstrated as an abusive discretion in keeping out the allegation of the performance appraisal in 2013. [00:47:31] Speaker 05: But I believe the district court said a number of things. [00:47:35] Speaker 05: Some things were futile, some things she said arise out of different facts. [00:47:39] Speaker 05: I'm just trying to hone in on what you're saying happened because [00:47:43] Speaker 05: I don't know that it writes a rise out of different facts because come to find out on summary judgment, you're relying on those very same performance evaluations to say that there was no retaliation and not the transfer. [00:47:55] Speaker 05: So it seems to be part of the same. [00:47:58] Speaker 05: nucleus of facts. [00:47:59] Speaker 05: And then the question is just, you're supposed to allow amendments must be freely given unless you actually have a reason not to. [00:48:06] Speaker 05: And it seems that discovery was open. [00:48:08] Speaker 05: These claims have just been exhausted. [00:48:10] Speaker 05: Why? [00:48:11] Speaker 05: Why is it not an abusive discretion to deny that if it is part of the same nucleus of facts, there is no undue delay on their part. [00:48:19] Speaker 05: They did it as soon as [00:48:20] Speaker 05: That was exhausted. [00:48:21] Speaker 04: It was not presented as part of the same nucleus of facts. [00:48:25] Speaker 04: It was presented in. [00:48:28] Speaker 04: proposed paragraph 18C. [00:48:32] Speaker 04: And that allegation about her minimally successful rating was alleged in the context of events that occurred while she was on leave for surgery in December of 13. [00:48:43] Speaker 04: And all of those allegations about what happened during her leave and after her leave [00:48:52] Speaker 04: was determined by Judge Jackson in the exercise of her discretion as being not sufficiently related to the original. [00:49:00] Speaker 02: So it is true, as my recollection is, it is true that the way they were teed up seemed to tie the allegations about the 2013 performance review to the ones about the firearms. [00:49:15] Speaker 02: And so it seemed like it was a different factual complex. [00:49:17] Speaker 02: I think my recollection is that is right in the way it was teed up. [00:49:20] Speaker 02: But in the way that the 2013 [00:49:22] Speaker 02: performance evaluation actually factored into the denial of summary judgment, it turns out it's not factually distinct because that is the basis for saying that there was a denial of the transfer to Boston and New York. [00:49:35] Speaker 04: But there's essentially what that [00:49:38] Speaker 04: If it came into the case, that is, if the 2013 performance appraisal had come into the case as its own claim, then the evidence of it factoring into a transfer later on would be evidence of the materiality of that [00:49:57] Speaker 04: you know, um, retaliatory allegedly, um, um, uh, performance appraisal, it would not make a sub subsequent decision, um, by a different, um, entity, um, using different criteria retaliatory. [00:50:13] Speaker 02: I think it definitely could, because if there's retaliation that ultimately is manifested in a denial of transfer, that kind of thing happens that we have discrimination claims where even if [00:50:27] Speaker 02: the ultimate decision-maker is making a decision based on something that they think has sanctity, that if it's infected in the process going up, that ultimate decision is still invalid. [00:50:38] Speaker 02: And that's what would be the basis here. [00:50:40] Speaker 02: You'd say the 2013 performance review was a product of retaliation. [00:50:45] Speaker 02: And then that became the basis for the denial of transfers to Boston and New York. [00:50:50] Speaker 04: Respectfully, I'm not aware of akin to a fruit of the poisonous tree situation. [00:50:57] Speaker 04: Isn't that the cat's paw theory? [00:50:58] Speaker 04: Isn't that basically how that works? [00:51:00] Speaker 04: No? [00:51:00] Speaker 04: But you actually have to, in the cat's paw theory, it would be, you would be infecting the original retaliatory person with the retaliatory animus, would then be infecting [00:51:13] Speaker 04: um the decision by the you know for the later decision and that's that's kind of what we have here is that is is that later on you have a transfer unit making a decision based on its neutral criteria that hey in the most recent you know review session you need to have at least a minimal performance uh appraisal and so that wasn't there and so the transfer decision is still about so let's let's suppose that [00:51:40] Speaker 03: that the undisputed evidence based on videotapes were that we're going to give her a bad performance review so that she'll never ever be able to transfer in the future because we don't like her because she's filed EEO complaints. [00:52:01] Speaker 03: And then it's also undisputed that later the FBI transfer unit, they know nothing about her EEO activity [00:52:10] Speaker 03: their their motives are completely pure. [00:52:13] Speaker 03: Um, and they just say, well, based on the criteria, we can't consider you or prove you for a transfer because you don't have, you know, satisfactory performance appraisals. [00:52:28] Speaker 03: So you're saying in that world, um, summary judgment gets granted [00:52:34] Speaker 03: or the government and it doesn't matter that there was essentially, you know, discriminatory action to to prevent her from ever being transferred in the future. [00:52:48] Speaker 04: I believe that's correct because we also have to assume that there's materiality present. [00:52:55] Speaker 04: Let's assume that. [00:52:57] Speaker 04: And so if we're just focusing on causation, there's still no evidence that the decision, the later transfer decision under challenge, was because of her protected activity. [00:53:13] Speaker 04: If that decision, as it was, was based on a neutral [00:53:18] Speaker 04: Um policy there there isn't um, you know, perhaps the facts if if there was some connection some some actual factual connection between the two events, um, um that taints the later event but here [00:53:33] Speaker 04: you know, it's a separate allegation, the separate discreet event. [00:53:38] Speaker 04: And the question before the court is, did the district court make the right decision and district court make the right. [00:53:44] Speaker 03: So your argument is that she, she would have a claim to, you know, assuming she exhausted, et cetera, the challenge, the negative performance evaluations as a claim, but that that is essentially [00:54:01] Speaker 03: irrelevant or at least not enough to defeat summary judgment when those discriminatory performance evaluations were used in the later transfer. [00:54:17] Speaker 03: I agree with that. [00:54:19] Speaker 05: And so you're saying the district court didn't abuse its discretion in denying the motion to amend to add this. [00:54:26] Speaker 05: So is it your position that she should just bring a whole new case alleging the retaliation based on the performance evaluations? [00:54:36] Speaker 05: Why is that better than just [00:54:39] Speaker 05: putting it into this case. [00:54:41] Speaker 04: Well, again, it's not a question of, you know, is it better or not? [00:54:44] Speaker 04: The question is, did Judge Jackson abuse her discretion? [00:54:48] Speaker 04: And she didn't because she interpreted the complaint. [00:54:51] Speaker 04: And, you know, based on, as the chief said, you know, this was allegation was made the context of other events. [00:54:58] Speaker 04: And she said, OK, I got nearly two dozen additional allegations [00:55:03] Speaker 04: of retaliation. [00:55:04] Speaker 04: What do I do with it? [00:55:05] Speaker 04: And so she made a very, I think, thoughtful analysis using the Rule 15 standards and said, okay, these ones are just too distinct from the original allegations and it would cause delay. [00:55:18] Speaker 04: additional discovery in terms of the timing, which I know is one of the questions, this amendment occurred six weeks before the schedule closed the discovery. [00:55:28] Speaker 04: And, you know, and so that was factoring into Judge Jackson's analysis that, hey, listen, we're basically at the finish line. [00:55:36] Speaker 04: And now we want to, the appellant wants to, or Promise wants to start with new allegations. [00:55:41] Speaker 04: The finish line often moves in district court. [00:55:44] Speaker 04: Right. [00:55:44] Speaker 04: But, but, but six weeks before the close, but that's, that's, but that's why, you know, but that's why the judge has discretion to figure out how to, how to manage her, her docket. [00:55:54] Speaker 04: And in this case, judge Jackson, and it hasn't been articulated in, in before your honor by, by appellant that this was an abusive discretion. [00:56:03] Speaker 02: My colleagues don't have additional questions for you. [00:56:06] Speaker 02: Thank you. [00:56:06] Speaker 02: Thank you. [00:56:07] Speaker 02: Thank you, Ron. [00:56:09] Speaker 02: Mr. Cuba will give you two minutes for rebuttal. [00:56:19] Speaker 01: Thank you, Your Honor, and I'll try to be quick. [00:56:22] Speaker 01: I appreciate the time. [00:56:25] Speaker 01: I guess the first observation I want to make is a general one, and it's how much these arguments that you're hearing today depend on the facts of this case, the evidence, the competing evidence in this case. [00:56:34] Speaker 01: And I think that goes to our broader point that summary judgment should not have been entered against Ms. [00:56:39] Speaker 01: Ramos. [00:56:40] Speaker 01: Um, just to address a few of the specific points council for the government raised one, he said that there's no evidence that, uh, that what jet did when removing Miss Ramos, um, there's no evidence that their explanation for removing Miss Ramos from her position, her supervisor position was textual. [00:56:59] Speaker 01: Um, they ignore the second time that they removed Miss Ramos from this position. [00:57:03] Speaker 01: they offer, and the district court made the same mistake, they focus on the temporary removal of her from this position in favor of another employee who then stepped down unexpectedly two months later, they put Ms. [00:57:17] Speaker 01: Ramos back there, but they got rid of her a second time. [00:57:19] Speaker 01: They never offer an explanation for that. [00:57:21] Speaker 01: They don't say it's because they were busy because she was on leave, because she wasn't on leave. [00:57:26] Speaker 01: So they haven't offered any non-protectual reason as to why she was removed that second time. [00:57:33] Speaker 01: The second point I want to address concerns to 2011 transfer. [00:57:38] Speaker 01: I neglected to mention earlier, but Mr. Finnegan understood at the time he said he would defer to the EEO or effectively the time that he removed the offer to transfer Ms. [00:57:50] Speaker 01: Ramos. [00:57:50] Speaker 01: He understood at that time that he could have consummated the transfer and allowed her to go to that new position. [00:57:56] Speaker 01: He chose not to do that. [00:57:58] Speaker 01: We think [00:57:59] Speaker 01: the court's correct. [00:58:01] Speaker 01: And it's, uh, at least it's questioning that suggests that's retaliatory. [00:58:06] Speaker 01: Um, we think clearly it meets the standard set forth in Burlington North be white because again, any reasonable employee would be dissuaded from filing a formal complaint if they knew if I file this formal complaint that transfer offer I want, [00:58:21] Speaker 01: that transfer I want that's been offered to me. [00:58:23] Speaker 01: If I follow this formal complaint, I'm going to lose it. [00:58:25] Speaker 01: That's exactly the kind of thing that would dissuade a reasonable employee from engaging in protected activity. [00:58:31] Speaker 01: Just to paraphrase an observation this court made in the Chambers case, refusing to transfer one employee but transferring a second employee, it treats the first employee worse than the second employee. [00:58:41] Speaker 01: We think there's a certain common sense element here that refusing to transfer someone after you told them you'd transfer them because they followed a formal EEO complaint [00:58:50] Speaker 01: does not only have retaliatory intent, but it's adverse because it deters protected activity. [00:58:59] Speaker 01: The other point I'll make on the argument that the government makes about deferring to the EEO process is this isn't a defense that they raised in their answer that we didn't retaliate because we were deferring to an agency. [00:59:13] Speaker 01: It's not an argument that they raised in their briefs below, at least not a legal argument they raised. [00:59:18] Speaker 01: Instead, it's one they came up with on appeal for the most part that says, um, you know, what they were really doing was handing it off to the EEO. [00:59:27] Speaker 01: Ultimately, it doesn't matter what their explanation is after the fact, when you take away a transfer offer, someone from someone that you don't have to take away, that's, that's adverse action. [00:59:37] Speaker 01: Um, but I did want to, uh, at least note that, um, unless the court- When the motion to amend, I mean, don't we have to, [00:59:45] Speaker 03: Um, we can't Monday morning quarterback, so to speak, district court. [00:59:50] Speaker 03: If the motion to amend articulated like the argument for why these things were related and why the amendment should be granted and didn't really connect up [01:00:05] Speaker 03: the performance evaluations to these transfer requests in 2014, 2015, or I guess they were all in 2014. [01:00:18] Speaker 03: Can't blame the district court for that. [01:00:20] Speaker 03: We can't say that that's an abuse of discretion that the district court couldn't look in their crystal ball and know that they were actually gonna be related. [01:00:29] Speaker 03: That was plaintiff's job to explain the connection, right? [01:00:36] Speaker 01: Um, that is fair. [01:00:37] Speaker 01: And your honor's question reminds me that I didn't answer your honor's question about discovery. [01:00:41] Speaker 01: It was still open as of the time we moved to amend in 2015, um, to add this. [01:00:47] Speaker 01: And I think that's an important point when we consider whether or not the judge abuse or discretion discovery was still open. [01:00:52] Speaker 01: We didn't know exactly how the government might attempt to explain away the 2013 and 2014 retaliatory actions. [01:01:00] Speaker 01: And as it's played out, we see now that the performance was [01:01:03] Speaker 03: discovery likely to be able to be concluded on these new claim within six weeks. [01:01:09] Speaker 01: I think that would have been a challenge if I'm entering. [01:01:12] Speaker 01: Yeah, exactly. [01:01:13] Speaker 03: So discovery was still open, but granting this motion was going to require extending the discovery deadline, right? [01:01:21] Speaker 01: Correct. [01:01:21] Speaker 01: It would have required extending the discovery deadline. [01:01:24] Speaker 01: My point is that [01:01:26] Speaker 01: We wouldn't we weren't at a point in the litigation where we could explain the connection between the performance evaluation and refusal to transfer to Boston in New York because we know the government would be relying on the way that they. [01:01:42] Speaker 03: Why wouldn't you know that? [01:01:44] Speaker 03: Why hadn't you taken discovery on those transfers, the New York and Boston transfer request? [01:01:51] Speaker 01: I believe, yes, we had taken discovery on that. [01:01:54] Speaker 01: And again, I'm not sure what our particular arguments were when moving to a man. [01:01:58] Speaker 01: Um, and I don't have that proposed amended complaint in front of me. [01:02:01] Speaker 01: Unfortunately, I do know that it was a, at least according to the government, it was a sub paragraph that we raised allegations in which suggests me that it was part of a sort of broader allegation. [01:02:12] Speaker 01: Um, but again, I apologize that I don't have that information readily readily available to answer your question. [01:02:20] Speaker 02: Thank you. [01:02:21] Speaker 02: Thank you counsel. [01:02:22] Speaker 02: Thank you to both counsel. [01:02:23] Speaker 02: We'll take this case under submission.