[00:00:01] Speaker 00: Case number 22-7142. [00:00:04] Speaker 00: Andre Ferguson, at balance, versus Washington Metropolitan Area Transit Authority. [00:00:09] Speaker 00: Mr. Tucker, for the at balance. [00:00:10] Speaker 00: Mr. Guest, for the atally. [00:00:11] Speaker 01: Good morning, counsel. [00:00:14] Speaker 01: Mr. Tucker, please proceed when you're ready. [00:00:18] Speaker 03: Good morning, judges. [00:00:21] Speaker 03: Justices. [00:00:23] Speaker 03: I am Charles Tucker. [00:00:24] Speaker 03: I'm here to present on behalf of Mr. Andre Ferguson. [00:00:28] Speaker 03: In this matter, [00:00:30] Speaker 03: The trial court abused this discretion when it ruled on the defendant's motion for summary judgment as a matter of law. [00:00:37] Speaker 03: This morning, I'll be arguing three main points to support that. [00:00:42] Speaker 03: One, when the district court erred in determining the issues. [00:00:47] Speaker 03: First, that Mr. Ferguson's claims were time-barred. [00:00:52] Speaker 03: Two, that there was no adverse employment actions and found no discrimination on the basis of race. [00:01:00] Speaker 03: Three, most importantly, the plaintiff was engaging in protected activity at all times. [00:01:08] Speaker 03: And it was affirmed that he reported race prior to being denied opportunities at promotion. [00:01:20] Speaker 03: When the court found that the decision makers were different people, this clearly was not supported by the record. [00:01:31] Speaker 03: But in fact, WMATA continues to contradict itself on several matters in regards to whether or not the actors and the reasons for the denial of a employment opportunity to Mr. Ferguson was actually based on race. [00:01:52] Speaker 03: In fact, we believe that the depiction in WMATA, which was granted summary judgment as flawed as a matter of law, [00:02:01] Speaker 03: because it's like a house of cards. [00:02:03] Speaker 03: At the base of it, you pull out one of the cards, the entire house will fail. [00:02:11] Speaker 03: It's based on the predisposition, as ruled by the district court, that they provided a legitimate non-pretextual reason for Mr. Ferguson not to have been granted an opportunity in being interviewed. [00:02:31] Speaker 03: Not only were the actors the same in the 2017 and the 2019 denial of his employment opportunity, but most importantly, the reasons proffered by WMATA clearly are not consistent with what the record has been submitted. [00:02:57] Speaker 03: Let me take the arguments in turn. [00:03:00] Speaker 03: Whether or not [00:03:02] Speaker 03: Mr. Ferguson's claims of hostile work environment, retaliation, and race are time barred. [00:03:10] Speaker 03: It's our position they are not, and it's supported by case law. [00:03:15] Speaker 03: We would like to present to the court, National Railway Passenger Court versus Morgan 536, US 101, 122nd Supreme Court case. [00:03:27] Speaker 03: We believe this is persuasive in that it deals with the case involving hostile work environment claims. [00:03:36] Speaker 03: In this case, the court pointed out that hostile work environment claims are quite different from cases involving discrete acts. [00:03:48] Speaker 03: Most importantly, by the quoting from the case, because their very nature involves repeated conduct. [00:03:56] Speaker 03: we submit to the court in this case, the 2017 non-selection. [00:04:02] Speaker 03: Matter of fact, he wasn't even not selected. [00:04:05] Speaker 03: He was never interviewed. [00:04:07] Speaker 03: At the time of the 27th non-selection process, Mr. Ferguson had operated in that position six months as an acting director. [00:04:21] Speaker 03: He had proffered to the department a electronic program [00:04:26] Speaker 03: that would benefit the way the business was able to do its job. [00:04:32] Speaker 03: What happened? [00:04:33] Speaker 03: He wasn't even considered. [00:04:36] Speaker 03: He was reviewed and given a role model by the performance evaluation as submitted for his leadership and his ability to lead the team. [00:04:49] Speaker 03: They selected Mr. Gregory Collins. [00:04:52] Speaker 03: Yes. [00:04:53] Speaker 00: What is your best evidence that these decisions were on the basis of race? [00:05:00] Speaker 00: That these employment decisions were on the basis of race? [00:05:03] Speaker 03: Sure. [00:05:04] Speaker 03: Jedroyo, our best evidence that the decisions were on the basis of race was because the actors involved acted accordingly. [00:05:15] Speaker 03: Two, so I would answer your question in two parts. [00:05:20] Speaker 03: One, the pattern and culture of WMATA has a history of racial discrimination. [00:05:28] Speaker 03: And that's not something that is being made up. [00:05:31] Speaker 03: WMATA has admitted it to their leaders and teams in meetings itself. [00:05:37] Speaker 03: So the admission is one. [00:05:39] Speaker 03: Two, the actors as proffered provide conflicting information as to why Mr. Ferguson was not selected. [00:05:51] Speaker 03: They proffered affidavits that are not supported by the facts of this case, of what actually occurred. [00:05:58] Speaker 03: Mr. Ferguson drew attention to the individual that was selected over him, Mr. Gregory Ferguson, saying, [00:06:07] Speaker 03: This individual has a racist issue, and I've had problems with it in the past, on the basis of race. [00:06:14] Speaker 03: What happens? [00:06:17] Speaker 03: He gets selected for the job of which Mr. Ferguson was never considered. [00:06:22] Speaker 03: Two, during that tenure, a hostile environment based on racial discrimination takes charge against Mr. Ferguson. [00:06:32] Speaker 03: Three, to my most important point, [00:06:35] Speaker 03: What Mr. Ferguson feared the most occurred. [00:06:39] Speaker 03: In August of 2019, Mr. Collins was terminated for violation of workplace policy when he was violently and aggressively yelling at an African-American female employee. [00:06:57] Speaker 03: See, it's not like Mr. Ferguson made this stuff up. [00:07:00] Speaker 03: He voiced his concerns, raised it, [00:07:05] Speaker 03: thus putting himself in protected activity, but they allowed him to remain under his supervision for Mr. Collins until it finally manifested into an incident where they finally had to act. [00:07:19] Speaker 03: So again, to answer your question, General, the combined best evidence that we have that this was non-selection on 2017 was on the basis of race was because [00:07:34] Speaker 03: One, Mr. Ferguson was very qualified for the job. [00:07:38] Speaker 03: How do we know this? [00:07:38] Speaker 03: He was operating in the position. [00:07:41] Speaker 03: Two, he was recognized for the operation of the position. [00:07:46] Speaker 03: And the reasons proffered by Wamata simply don't make sense. [00:07:50] Speaker 01: He was put on a performance improvement plan. [00:07:53] Speaker 01: Is that right? [00:07:54] Speaker 01: Judged by Wamata's account, he was. [00:07:57] Speaker 03: But when and why is what is big the question. [00:08:01] Speaker 03: And the record does not support it. [00:08:04] Speaker 03: The trial court found that Mr. Ferguson did not provide a legitimate basis for his defense, that these were pretextual. [00:08:21] Speaker 03: They were actually based on race. [00:08:24] Speaker 03: But looking at the record, it's actually the opposite. [00:08:31] Speaker 03: What's presented is, [00:08:32] Speaker 03: One, there were emails. [00:08:35] Speaker 03: In the record, there are emails that they discovered that the PIP that was allegedly presented to Mr. Ferguson didn't even look right because the signature looked transposed by their own admission. [00:08:52] Speaker 03: But Mr. Ferguson's account, he was never presented it. [00:08:56] Speaker 03: This was something that was created. [00:08:58] Speaker 03: And it's not just my words. [00:08:59] Speaker 03: If we look at the transcript, see, the trial court looked at the transcript, Mr. Ferguson. [00:09:05] Speaker 03: They just didn't look the right place. [00:09:07] Speaker 03: Had they looked at page 178, we would understand how the PIP was actually created. [00:09:13] Speaker 03: It was a conversation with Mr. Powell-Mary. [00:09:15] Speaker 03: But Mr. Powell-Mary says, oh, by the way, I was going to consider you for the position. [00:09:22] Speaker 03: This was in 2019, Judge. [00:09:24] Speaker 03: We're going to consider you for the position this time, but you're on a PIP. [00:09:29] Speaker 03: Mr. Ferguson responds, I've never been on, I'm not on a PIP. [00:09:32] Speaker 03: Wasn't presented to me. [00:09:35] Speaker 03: Mr. Paul Mary's response was, if you're not on a PIP, I will create one. [00:09:41] Speaker 03: And if we look at the emails that are in the record, that's exactly what they did. [00:09:46] Speaker 03: In fact, in the conversation with HR, they have concerns at the appearance of it and the way it was a, never [00:09:54] Speaker 03: to HR, and it wasn't properly presented to the employee. [00:09:59] Speaker 03: So the creation and the words by Mr. Palmieri, oddly enough, Judge, it points out, Chief Judge, in Mr. Palmieri's affidavit, he kind of left that part out. [00:10:10] Speaker 03: Again, this house of cards clearly fails because in his affidavit, he doesn't point out the fact that he had a conversation with Mr. Ferguson. [00:10:20] Speaker 03: And he told him if the PIP wasn't [00:10:22] Speaker 03: there that he would create. [00:10:26] Speaker 01: I'm sure my colleagues don't have additional questions for you at this point. [00:10:29] Speaker 01: We'll give you a little time for rebuttal. [00:10:32] Speaker 01: OK. [00:10:32] Speaker 01: Thank you. [00:10:33] Speaker 01: Mr. Tucker. [00:10:42] Speaker 02: Mr. Gus. [00:10:43] Speaker 02: Good morning, Your Honors, and may it please the court. [00:10:47] Speaker 02: Well, the decision by the district court, granny will modest summary judgment was the correct one. [00:10:53] Speaker 02: And I want to start with the failure to exhaust issue, which was pretty clear. [00:10:59] Speaker 02: WMATA sits in a different place in the District of Columbia. [00:11:03] Speaker 02: You have to file a charge of discrimination within 180 days as opposed to 300 days. [00:11:09] Speaker 02: There were three of Mr. Ferguson's allegations, one being the failure to be promoted to the TAMO position in 2017, the denial of the opportunity to present a program to the executive management team, [00:11:27] Speaker 02: and the late receipt of his paycheck in 2019, the lower court correctly concluded that those three allegations were outside the 180-day limit. [00:11:39] Speaker 02: And so they were not considered because Mr. Ferguson failed to exhaust those claims. [00:11:46] Speaker 02: Um, and that this they're backed up by number one, the April 30th letter. [00:11:51] Speaker 02: Um, you don't necessarily have to file an advocate in your charge of discrimination if there's other, uh, file these to the EEOC indicating what, you know, what a employee is prepared to file his charge. [00:12:05] Speaker 02: But even in that letter, there is no mention at all, uh, of those three issues, the 2017 TMO, [00:12:13] Speaker 02: pay to be promote a promotion in 2017. [00:12:17] Speaker 02: No mention of the denial of the opportunity to present to E a si to the executive management team and the late check issue. [00:12:25] Speaker 02: So those three allegations were properly disposed of. [00:12:33] Speaker 02: In terms of the retaliation claim, the lower court also ruled that Mr. Ferguson failed to exhaust his allegations under Title VII for retaliation, specifically that he failed to mention in this EEOC letter actually what his retaliation was. [00:12:54] Speaker 02: He failed to check the box as well. [00:12:56] Speaker 02: So those claims were properly not in front of the court, and the lower court [00:13:02] Speaker 02: made the correct decision that those retaliation claims were not exhausted. [00:13:10] Speaker 02: WMATA, I want to reserve from the back end that the lower court did address Mr. Ferguson's hostile work environment. [00:13:16] Speaker 02: And WMATA's argument was that, first of all, Mr. Ferguson's allegations were more discrete, meaning that there were more, they weren't [00:13:30] Speaker 02: a pattern of a hostile work environment, but he was trying to piggyback his hostile work environment claim based on actual incidents of what he alleged adverse actions. [00:13:40] Speaker 02: So under his hostile working claim, he included the very good promote in 2017. [00:13:46] Speaker 02: He included the paycheck issue, those issues that were not exhausted from the EEOC. [00:13:58] Speaker 02: So the lower court did address those issues. [00:14:00] Speaker 02: WMATA in its brief does state that we believe the hostile work environment claim was not exhausted. [00:14:12] Speaker 02: Again, we have the charge of discrimination. [00:14:14] Speaker 02: It's not in his letter to the EEOC. [00:14:17] Speaker 02: The hostile work environment box is not checked in the original charge of discrimination. [00:14:22] Speaker 02: Mr. Ferguson's [00:14:25] Speaker 02: It doesn't matter that much that the box wasn't checked, right? [00:14:30] Speaker 02: It doesn't matter that much, but it has to be some in particular, some narrative to show that EEOC what they're investigating. [00:14:38] Speaker 02: And it wasn't there, there was nothing indicating that his allegation was a hostile work environment in the charge of discrimination that would have alerted the EEOC that these were also claims that needed to be investigated. [00:14:53] Speaker 02: But that Lamada kept that argument in for the sake of the court that the hostile work environment was also not properly exhausted. [00:15:01] Speaker 02: Moving on to the real meat of the claim, the legitimate nondiscriminatory reason for not promoting or hiring Mr. Ferguson to the TAMO position in 2019. [00:15:13] Speaker 02: This is where the facts are important here. [00:15:23] Speaker 02: Miss Ferguson received a seven on his end of 2019 end of year evaluation. [00:15:30] Speaker 02: That was in August of 2019. [00:15:31] Speaker 02: At that time, he was reporting to Mr. Collins. [00:15:37] Speaker 02: A seven on WMATA's end of year employment evaluation mandates a performance improvement plan. [00:15:45] Speaker 02: What happened is that the following day, and this was given to him on August 1st, on the following day, Mr. Ferguson just goes to WMATA's EAP program and takes leave. [00:15:57] Speaker 02: And he stays on leave until October 1st, 2019. [00:16:01] Speaker 02: In between that time, WMATA has reorganized the department that Mr. Ferguson was in. [00:16:09] Speaker 02: So and also Collins is terminated for unrelated issues. [00:16:15] Speaker 02: Terminated for yelling at a colleague. [00:16:17] Speaker 02: She happened to be African-American, but there's no evidence that it was he yelled at his colleagues because of anything to do with race. [00:16:25] Speaker 02: She just happened to be African-American, but that was not why he was terminated. [00:16:30] Speaker 02: He was terminated because he's a supervisor yelling at our employee. [00:16:34] Speaker 02: There's no evidence that there were any racial connotation to that incident. [00:16:38] Speaker 02: But he's terminated in August 16, 2019. [00:16:43] Speaker 02: Mr. Palamari, because of the reorganization, now becomes Mr. Ferguson's supervisor. [00:16:49] Speaker 02: And this is when he has every intention to interview Mr. Ferguson for that TAMO position, because Mr. Ferguson has been, at the time, because Mr. Palamari was not [00:17:04] Speaker 02: supervising Mr. Ferguson to the reorganization. [00:17:08] Speaker 02: Mr. Ferguson is so high up in middle management, so of course he would be considered if they were to hire for this director position. [00:17:17] Speaker 02: At that time, Mr. Palamari is told that from HR that there is an employee that he has inherited that should be on a performance improvement plan. [00:17:30] Speaker 02: At the same time, Mr. Palamari is observing, because Mr. Ferguson comes back off for leave in October, he actually is personally observing Mr. Ferguson's interaction with his colleagues, and he doesn't like what he sees. [00:17:42] Speaker 02: And at that point, he inquires with our HR department, and they reveal to him that Mr. [00:17:50] Speaker 02: Ferguson was the one that received the 7 on his 2019 end-of-year evaluation. [00:17:55] Speaker 02: He mandated a PIP. [00:17:57] Speaker 02: That's why Mr. Polymery, at that time, because of his observations of Mr. Ferguson, decided that, OK, I'm not going to interview him for the 2019, not interview him for the TAO position in 2019, but also the PIP needs to be formalized because he received the 7. [00:18:15] Speaker 02: And that's when Mr. Ferguson is placed on a performance improvement plan. [00:18:19] Speaker 02: But the decision not to promote Mr. Ferguson was not strictly because of the performance improvement plan. [00:18:26] Speaker 02: It was also because of Mr. Palamari's personal observations. [00:18:30] Speaker 02: And that is Lamada's nondiscriminatory reason for not promoting Mr. Ferguson. [00:18:38] Speaker 01: Another. [00:18:40] Speaker 01: You also have the nondiscriminatory reason. [00:18:41] Speaker 01: I understood from your. [00:18:43] Speaker 01: Sorry, Your Honor. [00:18:44] Speaker 01: I thought from your submissions, I also understood that you had a nondiscriminatory reason to the effect [00:18:49] Speaker 01: that there was a belief that Mr. Ferguson was on a performance improvement. [00:18:53] Speaker 02: That is as well, because the seven on the end of year evaluation mandated the PIP. [00:19:00] Speaker 02: So yes, it was finally formalized and [00:19:07] Speaker 02: after the decision, somewhat after the decision, but when Mr. Polymery learns that he's supposed to be on a performance plan because of this seven, that weighed into the decision not to promote Mr. Ferguson. [00:19:28] Speaker 02: Your honor, and that is WMATA's argument. [00:19:31] Speaker 02: I reserve the radio by time. [00:19:34] Speaker 01: Thank you, counsel. [00:19:36] Speaker 01: Mister Tucker will give you 2 minutes for a rebuttal. [00:19:57] Speaker 03: Hostile work environment claims by its nature, supported by case laws seen in our brief, clearly illustrate the reasons that they should be taken into consideration outside of this jurisdictional bar by simply checking off a box. [00:20:17] Speaker 03: WMATA's position is that these are isolated incidents and don't really rise to the level of the exception. [00:20:26] Speaker 03: the exception which indicates where a person in Mr. Ferguson's position can show a pattern in practice. [00:20:35] Speaker 03: As I stated earlier, this was in fact a pattern in practice. [00:20:40] Speaker 03: Sean Kamen, the same individual that told Mr. Ferguson, oh, I didn't get your application. [00:20:46] Speaker 03: Can you submit it again? [00:20:48] Speaker 03: He submits it again, and he's still not interviewed in 2017, even though he occupied the position. [00:20:54] Speaker 03: Second, [00:20:55] Speaker 03: when he's not interviewed in 2019, the same individual comes to him and said, is involved in the decision-making of non-selection. [00:21:06] Speaker 03: The PIP that they speak of, yet arguably whether it was created and when it was created, Sean Kamen was not his supervisor, but he was involved again in this process. [00:21:19] Speaker 03: His name appears on the doctored text [00:21:24] Speaker 03: How do we know it's doctored? [00:21:26] Speaker 03: When we look at their own evidence, Exhibit 5 and 6 in the record support two performance plans that were allegedly given to Mr. Ferguson at the mid-year. [00:21:39] Speaker 03: It details a lot of information. [00:21:42] Speaker 03: And in one of the versions, it shows seven that Wemata justifies as the reason for his non-selection. [00:21:49] Speaker 03: Oddly enough, at the last question underneath the signatures, it presents the opportunity for Wemata to indicate that he would be put on a PIP. [00:22:00] Speaker 03: In neither version. [00:22:02] Speaker 03: is the PIP box checked off, showing that there was never really a reason to put them on a PIP that it was part of a pattern impact practice of racial practices by WMATA. [00:22:15] Speaker 01: Thank you, counsel. [00:22:16] Speaker 01: Thank you to both counsel. [00:22:17] Speaker 01: We'll take this case under submission. [00:22:19] Speaker 01: Thank you.