[00:00:00] Speaker 00: Case number 22-5310, Tammy Hartzler, a balance versus Alejandro and Majorca's Secretary of Homeland Security. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: McDonough for the appellant, Ms. [00:00:11] Speaker 00: Oblea for the appellee. [00:00:14] Speaker 05: Good morning, counsel. [00:00:16] Speaker 05: Ms. [00:00:16] Speaker 05: McDonough, please proceed when you're ready. [00:00:20] Speaker 04: Good morning, and may it please the court, Sarah McDonough, counsel for Ms. [00:00:24] Speaker 04: Hartzler. [00:00:25] Speaker 04: I'll get right to it. [00:00:26] Speaker 04: This is a case that respectfully should not have been dismissed on summary judgment. [00:00:31] Speaker 04: First of all, the district court was too granular in assessing pretext. [00:00:36] Speaker 04: FEMA claims that it took the adverse actions because of Ms. [00:00:39] Speaker 04: Hartzler's unacceptable performance as demonstrated by specific incidents. [00:00:44] Speaker 04: But instead of viewing those incidents as examples of unacceptable performance, the court treated each incident as a separate reason and opined that Ms. [00:00:53] Speaker 04: Hartzler couldn't prevail [00:00:54] Speaker 04: unless she proved that each incident was pretextual. [00:00:57] Speaker 04: In other words, she had to be perfect. [00:00:59] Speaker 04: But on the contrary, even FEMA acknowledges that there is an acceptable margin of error. [00:01:05] Speaker 04: The performance improvement plan, the PIP, says for each improvement action, you must not fail to do this more than one time per month or more than two times per month. [00:01:14] Speaker 04: Moreover, in each of the cases the district court relied upon, the employer proffered multiple discrete reasons, each of which alone could have supported the challenged action. [00:01:24] Speaker 04: For example, in curfew small, the employee was fired for four different reasons disruptive conduct disregard for duties, insolence towards management and failure to follow leave procedures. [00:01:34] Speaker 04: And so the problem wasn't that the employee couldn't dispute each incident of disruptive cons conduct or each incident of failure to follow leave procedures. [00:01:43] Speaker 04: It was that she failed to dispute three of those four major reasons at all. [00:01:47] Speaker 02: So in this case, you've got your failure to accommodate, and then you've got also the performance improvement plan, which leads to the revocation of the telework, which leads to eventually termination. [00:01:57] Speaker 02: Yes, Your Honor. [00:01:58] Speaker 02: You're focused on the performance improvement plan. [00:02:00] Speaker 02: Are you bringing any of the failure to accommodate into all of that, or do you believe that this was cabined off at essentially the communication issues? [00:02:08] Speaker 04: No, we believe that the PIP was imposed in retaliation for her request for reasonable accommodations, her EEO activity, and the fact that she had disabilities and her supervisors didn't want to accommodate those. [00:02:24] Speaker 02: But if you look at the time periods of when she's actually making her various informal and or formal complaints, they start in 2015, but then you have the termination way later. [00:02:38] Speaker 02: I know that there are things going around for some time, but even at the best estimate, I believe that, let's say you, we use the latest one, November about 2017, would you say that's about correct for when she asked about the EEO complaint? [00:02:53] Speaker 02: Then you go into other scenarios about the communication issues. [00:02:59] Speaker 02: It seems like the failure to accommodate piece was essentially over by then. [00:03:05] Speaker 04: I don't believe so, your honor. [00:03:08] Speaker 04: The FEMA did not accept Ms. [00:03:11] Speaker 04: Hartzler's formal complaint until February of 2018. [00:03:16] Speaker 04: And Mr. Burchette and Mr. Soucy, her supervisors, didn't have to start answering for the complaint until May of 2018. [00:03:22] Speaker 02: Do we have any evidence in the record that Mr. Burchette even knew about that particular complaint, the November 2017 or the February 2019? [00:03:31] Speaker 04: There is evidence in the record, his EEO affidavit that at May 2018 that he submitted his required affidavit to the investigator. [00:03:43] Speaker 01: And what about for February 2019? [00:03:44] Speaker 01: I'm sorry? [00:03:46] Speaker 01: February 2019. [00:03:47] Speaker 04: For that, I don't believe there is in the record, but per the EEO's process, the counselor was supposed to notify him. [00:03:55] Speaker 01: Okay. [00:03:59] Speaker 04: Sorry, OK. [00:04:01] Speaker 04: And then, I'm sorry, trying to re-gather here. [00:04:07] Speaker 03: Let me just ask you to address something. [00:04:09] Speaker 03: So for the discrimination claims, it seems part of your best argument is based on the comments that Burchette made in the phone call and in a meeting, for example, when you're [00:04:23] Speaker 03: your argument is he laughed when she was describing her medical conditions. [00:04:27] Speaker 03: And I think what the other side says is, well, those actually are maybe unlike the EEO activity are about a year in advance of the PIP placement and termination. [00:04:39] Speaker 03: And that the actual basis for the PIP termination are relatively sort of objective and the events are undisputed. [00:04:46] Speaker 03: And just wonder if you have a response to that. [00:04:50] Speaker 03: I know there's a lot built into it. [00:04:51] Speaker 04: Absolutely. [00:04:52] Speaker 04: So yes, I believe that the mocking and the comments that he made during that September 2017 call is a strong piece of evidence of his discriminatory animus, which has no expiration date. [00:05:05] Speaker 04: It's not temporal proximity, where it just happens to be two things that happen at points of time. [00:05:11] Speaker 04: And the distance between those is the evidence. [00:05:14] Speaker 04: Here, he is making objectively derogatory comments about this woman who has no thyroid. [00:05:20] Speaker 04: and cannot control her, regulate her body temperature, who he knows has back issues, I mean, is limited in her mobility and he's laughing at her and saying, bring your sunscreen, bring your boots, you're gonna be moving tractors around in a muddy field. [00:05:35] Speaker 04: And so, no, I mean, there's no expiration, no indication that his attitude changed, especially in light of his criticisms in the third quarter review in 2018. [00:05:46] Speaker 04: where he referred to Ms. [00:05:48] Speaker 04: Hartzler's request for an ad hoc telework day when it was 102 degrees and she wasn't gonna be able to regulate her body temperature as a communication and teamwork, or I'm sorry, as a challenge in teamwork and communication. [00:05:59] Speaker 04: That's how he referred to her request for an accommodation. [00:06:03] Speaker 04: And so there was a continuation of those kinds of comments and criticisms made to her about her and in connection with both her disabilities and her ability to perform the job. [00:06:16] Speaker 04: And going back to the line of cases that the court cited, in the proceedings below, the district court already found that there's a genuine dispute of material fact as to at least one of the alleged incidents supporting the PIP and one supporting the removal. [00:06:35] Speaker 04: It should have found more. [00:06:36] Speaker 04: But based on this, a reasonable jury could find that whatever Mr. Burchette and Mr. Canish believed [00:06:42] Speaker 04: that Miss Hartzler did or didn't do. [00:06:44] Speaker 04: They didn't honestly believe that those things were bad enough that she deserved to be put on a hip and fired. [00:06:50] Speaker 04: Relatedly, the court failed to consider reasonableness as a factor of honesty. [00:06:56] Speaker 04: And these two are linked because a belief may be so unreasonable that a fact finder could suspect it was not honestly held. [00:07:02] Speaker 04: The two performance elements at issue here as well as their assessment of the alleged incidents are extremely subjective. [00:07:09] Speaker 04: This isn't a matter of she failed to communicate. [00:07:12] Speaker 04: She failed to do this. [00:07:14] Speaker 04: It's along a sliding scale. [00:07:17] Speaker 04: It's not that she didn't communicate at all. [00:07:19] Speaker 04: It's that she didn't communicate quite well enough. [00:07:22] Speaker 04: It's not that she wasn't a team player at all. [00:07:24] Speaker 04: It's just that on a couple of occasions, they're saying that she failed. [00:07:29] Speaker 05: You're not suggesting that any time that you have those kinds of subjective assessments are going to be inherent in an employment relationship to some extent. [00:07:36] Speaker 05: And I don't take you to be suggesting that any time a decision is based on a subjective assessment of that kind and that it lies at some point in a spectrum where there's points on a continuum, that that necessarily means that some other explanation could have been at work such that the defendant can't get some reach out. [00:07:58] Speaker 04: No, Your Honor. [00:08:00] Speaker 04: No, I understand what you're saying. [00:08:02] Speaker 04: However, in this case, especially in connection with the removal, all of the alleged deficiencies are subjective, completely subjective. [00:08:11] Speaker 04: I mean, if you take away the words, oh, you failed in this, look at what she actually did. [00:08:16] Speaker 04: She forwarded an email saying, please let me know if you'd like to share this with the team. [00:08:20] Speaker 04: She submitted a weekly review or a weekly activity report that had two bullet points. [00:08:26] Speaker 04: And she forwarded an email [00:08:28] Speaker 04: Are these the kinds of things, just looking at them on their face, that are objectively failures? [00:08:35] Speaker 03: What's your response to the presentation issue where, at least according to the other side, the event was essentially a direct question to her about whether she had hosting privileges. [00:08:45] Speaker 03: She said no, and the answer is yes. [00:08:48] Speaker 04: So that's a good example, and that one I think is the closest call. [00:08:53] Speaker 04: In the record, there is an email that reflects Mr. Susie's immediate reaction to discovering that she did in fact have rights to access. [00:09:05] Speaker 04: This is at the, in the appendix at 281. [00:09:10] Speaker 04: And so this is the email Mr. Susie sent to Mr. Burchette when he learned that she did have rights. [00:09:16] Speaker 04: He wrote to her, I'm not sure where the miscommunication with Tammy occurred. [00:09:21] Speaker 04: I think that this example is directly analogous to what happened in De Jesus, where the employee apologized for requesting a marketing study without his supervisor's approval. [00:09:34] Speaker 04: In response, she said, no worries. [00:09:36] Speaker 04: But then later she recast that incident as insubordination supporting his firing. [00:09:44] Speaker 04: And I think that here it's the same thing. [00:09:47] Speaker 04: He has recast what he calls himself a miscommunication. [00:09:51] Speaker 04: is a failure to engage in teamwork and cooperation. [00:09:55] Speaker 04: And just as the court did in DeJesus, I think they should make the same finding here, that where the supervisor's immediate response did not hint at any irretrievable misstep, the jury could find that that interpretation of the events, that this was insubordination, not mere miscommunication, so unreasonable that it provoked suspicion of mendacity. [00:10:19] Speaker 04: I think the same happens in connection with the other part of with the Eagle Horizon exercise where her supervisors accused her of forwarding an email without context and then failing to timely provide a requested summary. [00:10:39] Speaker 04: Here again, when she forwarded the email, Mr. Suzy's immediate response was, thank you for sharing, Tammy. [00:10:45] Speaker 04: And that was at 577. [00:10:47] Speaker 04: Um, additionally, the other part of that that she failed to tell me and provide the debt of the, um, I'm sorry, the summary. [00:10:55] Speaker 04: Uh, I think a jury could find that they didn't honestly believe that because there was no deadline and no indication that it was urgent. [00:11:01] Speaker 04: I'm sorry. [00:11:01] Speaker 04: I see everyone at a time. [00:11:03] Speaker 05: Let me make sure my colleagues don't have additional questions at this time. [00:11:05] Speaker 05: Well, we'll give you a little time for rebuttal. [00:11:07] Speaker 05: You will have from the government now. [00:11:13] Speaker 05: So boy. [00:11:18] Speaker 06: Good morning. [00:11:21] Speaker 06: May it please the court, this is Erica Oblea for Secretary of Homeland Security. [00:11:25] Speaker 06: This case is about an employee who merely subjectively disagrees with their performance evaluation, evidence that this court has held many times insufficient on its own to establish pretext. [00:11:37] Speaker 06: In this case, you know, Ms. [00:11:39] Speaker 06: Hartzler goes through many of the reasons why she believes that she did not perform well. [00:11:43] Speaker 06: But again, if you look deeply into it, all of it relies a lot on her subjective disagreement with this court is held in the performance evaluation. [00:11:52] Speaker 02: you are trying to connect this kind of with her specific activity. [00:11:57] Speaker 02: So this is not one that is just a general performance evaluation. [00:12:02] Speaker 02: That's kind of one of your standard documents. [00:12:04] Speaker 02: This is peculiar to her situation, Brett. [00:12:07] Speaker 06: Yes, your honor, the performance plan, I'm sorry, the pivot issue here was specific to Ms. [00:12:12] Speaker 06: Hartzler. [00:12:12] Speaker 02: But would you consider that some of these items on here, one could easily fail? [00:12:18] Speaker 02: And what I mean by that is when you say don't copy someone else on an email, then, you know, easily you could fail that. [00:12:28] Speaker 02: In today's world, because we're using technology, to me, I would hold that akin to, we have kind of a hostile situation here. [00:12:37] Speaker 02: I don't want to be in a room with you unless somebody else is also present. [00:12:40] Speaker 02: And so therefore, copy somebody on the email because they're present, at least through technology. [00:12:46] Speaker 06: The evidence here shows, Your Honor, that this was a history of Ms. [00:12:50] Speaker 06: Hartzler being counseled again and again and again since 2017 that she was sent up emails appropriately to the individuals. [00:12:57] Speaker 06: She admits in her paper bottles, in fact, that she was sent specifically a document called supervisory control document, instructing her specifically who she was supposed to send these appropriate emails to. [00:13:08] Speaker 06: We see again and again in 2018, Mr. Burchette counsels her in her performance evaluations about sending things, communicating correctly to the right people. [00:13:17] Speaker 06: In fact, this is a concern that it was shared by Mr. Kadesh, his own supervisor, who said, I've been receiving these emails from Ms. [00:13:25] Speaker 06: Hartzler. [00:13:26] Speaker 06: counsel her appropriately. [00:13:28] Speaker 06: So in this case, you know, the evidence shows that this wasn't, by the time that Ms. [00:13:33] Speaker 06: Hartzler got on the PIP, this wasn't the first time she's been notified that she needs to, you know, better communicate her emails to. [00:13:42] Speaker 03: It was at least a different sort of CC, right? [00:13:46] Speaker 03: She's not copying Kadesh any more. [00:13:49] Speaker 03: She's copying Susie on her complaints about the PIP plan when Burchette copied Susie on the email with PIP plan. [00:13:59] Speaker 03: That seems a little nitpicky, doesn't it? [00:14:03] Speaker 06: The question here is whether Mr. Burchette reasonably and honestly believed that [00:14:08] Speaker 06: Mr. Susie was an inappropriate recipient for those emails. [00:14:11] Speaker 06: And Ms. [00:14:12] Speaker 06: Hartzler has not provided that evidence. [00:14:14] Speaker 06: Again, the language of the PIP states he's the one who's handling the PIP. [00:14:18] Speaker 06: Ms. [00:14:18] Speaker 06: Gonzalez, the HR representative, is the one she's supposed to direct her questions about the PIP to. [00:14:25] Speaker 06: And again, I will reiterate, again, this was in the context of Mr. Bruchette counseling her over the past, since 2017, which is almost two years at this point, about directing her emails to the appropriate individuals. [00:14:38] Speaker 03: Ms. [00:14:39] Speaker 03: McDonough started her argument with more of a methodological point that the district court erred by requiring Ms. [00:14:46] Speaker 03: Hartzler to show that each and every one of the reasons for her pit placement and then termination were pretextual. [00:14:54] Speaker 03: What is your response to that? [00:14:55] Speaker 03: Is it the government's position that if just any one of these seems to be non-protectual, that that's enough to warrant summary judgment? [00:15:05] Speaker 06: I will try to address that in two ways. [00:15:07] Speaker 06: First, as to her retaliation claim, the standard there is a but for causation. [00:15:12] Speaker 06: And here, Mr. Bouchette found that Ms. [00:15:15] Speaker 06: Hartzler had failed the PIP for two core reasons. [00:15:17] Speaker 06: One, that she failed in the teamwork and cooperation, and two, she failed in the communication. [00:15:20] Speaker 06: And the PIP specifically stated that she had to improve in both areas in order to succeed on the PIP. [00:15:27] Speaker 06: So each of the failures in the teamwork and the communication on their own would be independent reasons for Tut failed the PIP. [00:15:38] Speaker 06: As to the discrimination, it's fairly the same inquiry here. [00:15:43] Speaker 06: Whatever the court might find as to one or the other, at the end of the day, each of those are independent reasons for Tut failed the PIP. [00:15:56] Speaker 05: The government has a lot of these employment discrimination cases. [00:16:00] Speaker 05: And there's a difference between a reason for a decision being dubious and a reason for a decision being discriminatory. [00:16:09] Speaker 05: I take that point. [00:16:12] Speaker 05: But have you encountered a lot of cases in which there's been a sanction visited on somebody because they added additional people to emails that shouldn't have been added to emails? [00:16:25] Speaker 06: frankly, haven't been at the US attorney's office long enough to opine on that. [00:16:29] Speaker 06: But I mean, at this case, [00:16:32] Speaker 06: As this court is held in fishback, the question is not whether this was wise, fair, correct, or whether your honors might have done something differently. [00:16:39] Speaker 06: It's whether Mr. Bruchette reasonably and honestly believed in the reasons that she had failed in her performance. [00:16:45] Speaker 06: And this isn't, by the time this starts again, by the time this starts, this wasn't her first time. [00:16:50] Speaker 06: She was notified over and over and over again. [00:16:52] Speaker 06: You need to improve. [00:16:53] Speaker 02: You're zooming in on those communication issues. [00:16:56] Speaker 02: Starting off, you know, with your opposing counsel's presentation was just that animus from Mr. Bruchette from the beginning, you know, just with respect to the mockery about her condition and then accommodations and then other things. [00:17:12] Speaker 02: And then eventually we get to a PIP. [00:17:14] Speaker 02: So what would you respond there about the overlying alleged animus? [00:17:20] Speaker 06: Yeah, yes, your honor. [00:17:21] Speaker 06: I mean, if we do look at all of the evidence, yes, the evidence shows that Mr. Bouchette approved her 2018 request for an ergonomic chair. [00:17:30] Speaker 06: He approved. [00:17:30] Speaker 02: I understand that on fair to accommodate, but I'm talking about the bigger picture of them claiming that the animus starts right from the beginning and then keeps bleeding into all the way up to the PIP. [00:17:42] Speaker 06: At the end of the day, Ms. [00:17:44] Speaker 06: Hartzler points to at best two comments here. [00:17:47] Speaker 06: Yes, the straight comments have to be considered in the light most favorable to Ms. [00:17:52] Speaker 06: Hartzler and in the context of all the record. [00:17:54] Speaker 06: But the context of that record shows that Mr. Pritchett's concerns about our performance deficiencies were shared by Mr. Kadesh, whom Ms. [00:18:02] Speaker 06: Hartzler has failed to proffer any evidence, made any such discriminatory comments. [00:18:06] Speaker 06: And in the end of the day, Mr. Kadesh was the ultimate decision maker for determination. [00:18:12] Speaker 06: If your court has no other questions, we ask that the judgment below be affirmed. [00:18:18] Speaker 05: Thank you. [00:18:19] Speaker 05: Thank you. [00:18:21] Speaker 05: This McDonald will give you two minutes for a rebuttal. [00:18:28] Speaker 04: Thank you, Your Honors. [00:18:30] Speaker 04: I just wanted to respond regarding the copying appropriate parties. [00:18:35] Speaker 04: The district court already concluded that a jury could find that [00:18:39] Speaker 04: Mr. Bruchette, Mr. Kaddish didn't honestly believe it was inappropriate to copy Mr. Sousi. [00:18:45] Speaker 04: The court erroneously concluded that Mr. Kaddish didn't know that Mr. Chaplin had any connection to the PIP for Ms. [00:18:51] Speaker 04: Hartzler's discrimination complaint, and therefore he could have honestly thought that he had no connection, shouldn't have been copied. [00:18:59] Speaker 04: And as opposing counsel mentioned, Mr. Kaddish was the deciding official for the removal. [00:19:04] Speaker 04: However, Mr. Kaddish did know, or at least have reason to know, in his removal decision, [00:19:09] Speaker 04: at 233 at his deposition at 476. [00:19:13] Speaker 04: He confirmed that he considered the written reply that Ms. [00:19:16] Speaker 04: Hartzler's former attorney submitted on the second page of that reply, page 580. [00:19:22] Speaker 04: It explains that Ms. [00:19:23] Speaker 04: Hartzler filed a prior complaint against Mr. Burchette, a second complaint regarding the PIP. [00:19:27] Speaker 04: It also says Mr. Chaplin is the agency attorney assigned to Ms. [00:19:31] Speaker 04: Hartzler's complaint of discrimination as such is an appropriate party to include on email because both the PIP and the rebuttals are relevant to the case. [00:19:39] Speaker 04: Now at that point, Mr. Kaddish had reason to know that Mr. Chaplin was in fact relevant and involved in both the PIP and the rebuttals. [00:19:50] Speaker 04: He could have walked that back. [00:19:52] Speaker 04: He could have chosen not to sustain the charge of unacceptable performance and communication, but he didn't. [00:19:58] Speaker 04: Moreover, the PIP rebuttals themselves are protected activity. [00:20:03] Speaker 04: She says, you've used the process to further discriminate against me. [00:20:07] Speaker 04: This is a toxic work environment. [00:20:08] Speaker 04: You're both fully aware of my disabilities. [00:20:11] Speaker 04: This is at 556. [00:20:12] Speaker 04: The whole point of these was to dispute the allegations on the merits and to allege that it was instead pretextual and continued discrimination or retaliation. [00:20:22] Speaker 04: And because this is not just some innocuous email she's sending about work, this is protected activity. [00:20:27] Speaker 04: Whether Mr. Burchette knew or thought that it was protected activity doesn't matter. [00:20:32] Speaker 04: Respectfully, we ask that [00:20:34] Speaker 04: that you vacate the decision or remain the case for trial. [00:20:37] Speaker 04: Thank you. [00:20:38] Speaker 05: Thank you, counsel. [00:20:39] Speaker 05: Thank you to both counsel. [00:20:40] Speaker 05: We'll take this case under submission.