[00:00:00] Speaker 01: Case number 24-5201, Susan Koshu, PhD, also known as Pamela L. At-Balance versus Marco Rubio. [00:00:09] Speaker 01: Ms. [00:00:09] Speaker 01: Khan, federal at-balance, Mr. Walker, for the appellee. [00:00:12] Speaker 05: Good morning, counsel. [00:00:13] Speaker 05: Ms. [00:00:13] Speaker 05: Khan, please proceed when you're ready. [00:00:16] Speaker 02: Thank you, your honor. [00:00:17] Speaker 02: May it please the court? [00:00:18] Speaker 02: During her fellowship at the State Department, Dr. Susan Cashew's supervisors ridiculed her disability, berated her when she requested help with her assistive technology, diminished her responsibilities, and did not renew her fellowship. [00:00:32] Speaker 02: I will begin with a non-renewal of her fellowship, which a jury could find was discriminatory. [00:00:38] Speaker 02: State claims that it rescinded Dr. Cashew's fellowship because she did not return her renewal paperwork on time and couldn't commit to remaining in the Office of Ocean and Polar Affairs. [00:00:48] Speaker 02: A jury could disbelieve both explanations. [00:00:51] Speaker 02: Three pieces of evidence contradict state's misdeadline explanation. [00:00:55] Speaker 02: First, AAAS representatives in an email at JA449 provided Cashew an extension on returning her renewal paperwork while they considered her proposed changes. [00:01:07] Speaker 02: Second, Cashew testified at JA64 that she called each week to check in on the status of her paperwork. [00:01:15] Speaker 02: And third, state fellowship coordinator, Jennia Dana, informed Cashew that her proposed changes were approved at an email at JA229 without alerting her to any missed deadline or risk to her fellowship. [00:01:29] Speaker 02: Given this ongoing dialogue, a jury could conclude that, I'm sorry, a jury could, to disbelieve state's explanation that it rescinded Dr. Cashew's fellowship a few days later [00:01:40] Speaker 02: because she had missed the renewal deadline. [00:01:43] Speaker 02: Second, a jury could also disbelieve the State Department's explanation that it did not renew Dr. Cashew's fellowship because she could not commit to staying in the Office of Ocean and Polar Affairs. [00:01:54] Speaker 02: Dr. Cashew only saw minor proposed changes in her paperwork, which is that JA 226. [00:02:01] Speaker 02: She simply wished to change the reference to Dave Sawyer from [00:02:05] Speaker 02: mentor to point of contact slash supervisor. [00:02:08] Speaker 02: And that change was ultimately approved in the same email at J.A. [00:02:12] Speaker 02: 229. [00:02:12] Speaker 02: So given the fact that at that point, the State Department, AAAS, and Dr. Cashew were all operating on the assumption that she was going to stay in the Office of Ocean and Polar Affairs with Dave Sawyer as her supervisor, a jury could disbelieve State's explanation that it rescinded her fellowship because she could not commit to staying in that office. [00:02:34] Speaker 05: There have been some back and forth about her switching offices though, right? [00:02:39] Speaker 02: Yes, there was some testimony that in early June, Dr. Cashew considered switching offices or supervisors, but she at that time also was willing to commit to staying in the Office of Ocean and Polar Affairs. [00:02:52] Speaker 02: as she testified at JA64. [00:02:55] Speaker 02: And at that time, she also tried to hand in paperwork, which kept her in the Office of Ocean and Polar Affairs. [00:03:00] Speaker 02: Because if you look at her proposed edits to the paperwork at JA226, there's no edit to the statement that the second year of her fellowship will continue in the Office of Ocean and Polar Affairs. [00:03:12] Speaker 05: So when you say at JA64, that's where I look to see indication that she, her perspective was, [00:03:22] Speaker 05: Yes, first best solution is I'd like to switch offices. [00:03:26] Speaker 05: But second best solution is renew but stay in the same office. [00:03:30] Speaker 05: It wasn't as if it was being framed as [00:03:33] Speaker 05: I'd like to renew, but only if I can switch offices. [00:03:36] Speaker 02: Yes, exactly. [00:03:36] Speaker 02: And that's the whole State Department's whole argument that she was either wanting to change offices or supervisors or not continue her fellowship. [00:03:43] Speaker 02: But that's really contradicted by evidence in the record. [00:03:45] Speaker 02: I mean, she testified that she was willing to stay in the Office of Ocean and Polar Affairs from the beginning because she loved her ocean acidification work. [00:03:53] Speaker 02: And that's at J65, where she testified that she was willing to stay in the Office of Ocean and Polar Affairs. [00:04:00] Speaker 02: And even one of the supervisors that she sought to change to, Julie Gourley, was also in the Office of Ocean and Polar Affairs. [00:04:06] Speaker 02: So there's just no evidence that she was so intent on changing offices that she would have preferred to, I guess, not to do the fellowship at all. [00:04:15] Speaker 02: And also by July, by the time of the July 12th email, there is clear evidence in the record that she was willing to stay in the Office of Ocean and Polar Affairs. [00:04:23] Speaker 02: because the only change she requested was changing the reference to Dave Sawyer from mentor to supervisor slash point of contact. [00:04:31] Speaker 02: And in order for Dave Sawyer to have been her supervisor, she would have had to be in the Office of Ocean and Polar Affairs because that was where he was situated. [00:04:38] Speaker 05: Where do you think it gets you if we think that there's some doubt about those two rationales? [00:04:51] Speaker 05: One being you didn't submit your paperwork in time, and the other being you wanted to switch offices, but you're not going to be able to switch offices. [00:05:00] Speaker 02: Yes. [00:05:00] Speaker 02: So this court said in Acre versus Washington Hospital Center that evidence from which a reasonable jury could conclude that an employer's proffered explanation is false can be enough to get the case to a jury, because the fact that an employer hid their true explanation [00:05:18] Speaker 02: suggest that they have something to hide, and that something may well be discriminatory intent. [00:05:22] Speaker 02: But here, we also have independent evidence of discriminatory attitudes on the part of decision makers. [00:05:30] Speaker 05: So before we go to that, I do want to hear what that is in your estimation. [00:05:33] Speaker 05: But before we go to that, if we just put that to the side for a second, and suppose all we have is the two profferred justifications, and then in your mind, neither of those holds up. [00:05:47] Speaker 05: Or does that leave us vis-a-vis some range of that alone? [00:05:50] Speaker 02: Yeah. [00:05:51] Speaker 02: So that would allow you to send the case to a jury, because a jury could infer from the fact that the State Department's proffered explanation is not the real one, from that evidence alone, that there was a discriminatory motive. [00:06:08] Speaker 02: And because we're in a situation where the State Department has been accused of discrimination and are providing an explanation in that context as to why they took these [00:06:17] Speaker 02: challenge employment actions. [00:06:18] Speaker 02: And so if their reason for the challenge employment action turns out to be false, I think a jury could infer from that that they, like I said, they have something to hide and that something could. [00:06:27] Speaker 05: But a couple of times you said that we could allow it to go to a jury. [00:06:30] Speaker 05: But do we have to? [00:06:32] Speaker 05: Or what factors into it, apart from the evidence that you think independently shows that there was potentially a discriminatory [00:06:41] Speaker 02: Yes, well, so I think this case, this court said in Jesus v. Washington Post that it's not an easy answer because in ACCA v. Washington Hospital Center, the court essentially said there's no concise and generic way to condense under what circumstances the evidence calling an employer's explanation into question is enough to go to a jury. [00:07:05] Speaker 02: But I think here what you have is [00:07:08] Speaker 02: both the prima facie case, which is the fact that Dr. Cashew is a member of a protected class and was terminated for a reason that was neither that she wasn't successful at her job, because that was never in the record, and not that her position was eliminated, which are the two most common reasons that an employer will eliminate a position. [00:07:30] Speaker 02: And this court said in George versus Levitt that that's enough to show a prima facie case. [00:07:34] Speaker 02: So you have that evidence plus [00:07:36] Speaker 02: the State Department's reason being called into question by evidence in the record. [00:07:39] Speaker 02: So I think those two things together are enough to send this to a jury. [00:07:44] Speaker 06: But as I said, there's something about the shift gears a bit if you're ready. [00:07:49] Speaker 06: On accommodation of her handicap disability, I don't understand how we could take into consideration anything [00:08:02] Speaker 06: on that score that predates, that predates her saying it was great. [00:08:07] Speaker 06: Everything was wonderful. [00:08:10] Speaker 06: Well, your honor, I think to wash out whatever predates that. [00:08:13] Speaker 02: Well, I have two responses to that, your honor. [00:08:15] Speaker 02: So first of all, when she said that it was everything was stupendous and fabulous, she was only referring to the accommodations that come from the disability and reasonable accommodations office, all the computer stuff, the equipment, all of that. [00:08:28] Speaker 02: Yes, but it doesn't have anything to do with, for instance, her move to a quieter office, because her supervisors in OPA were the ones who had the purview over whether or not she could change her office. [00:08:38] Speaker 06: Well, there's a lot in your brief about equipment. [00:08:41] Speaker 02: Yes, there's a lot in your brief. [00:08:43] Speaker 06: A lot of it predates the relevant statements. [00:08:46] Speaker 02: Yes. [00:08:46] Speaker 06: Can't we just disregard that? [00:08:48] Speaker 06: I mean, I was taking out, you know, grant you if there's other things that post stated that aren't covered because they weren't part of the equipment grad provides. [00:08:58] Speaker 02: Well, no, I think the fact is that this email does not conclusively show that she was fully reasonably accommodated. [00:09:06] Speaker 02: I think the email that you're referring to is the exchange with her supervisor, Shever Voltmer, in which Voltmer said, you know, basically where Dr. Cashew said, I'd like to have a meeting with you in the office of DRAD. [00:09:18] Speaker 02: Would you be willing to do that? [00:09:19] Speaker 02: And Voltmer said, I'm too busy to do that. [00:09:21] Speaker 02: So is that really, essentially, is that really necessary? [00:09:25] Speaker 06: What? [00:09:25] Speaker 06: What was the date of that? [00:09:26] Speaker 02: September 2016, which is after this thing. [00:09:32] Speaker 02: Well, no, so I think this this statement is a part of an email exchange with the Office of DRAD because it's at I think it's at J 195. [00:09:41] Speaker 02: I'm sorry, it's. [00:09:50] Speaker 02: So it's at J 196 and it's part of the exchange that starts at J 195 and it's it's dated September 23rd 2016 and basically. [00:10:01] Speaker 02: In the context of this email, Shever-Voltmer had asked whether there was some support that Dr. Cashew needed from the office that she's not getting. [00:10:12] Speaker 02: But the tone of the email was that she didn't want to, like, I don't really need a meeting. [00:10:16] Speaker 02: She wasn't showing a lot of enthusiasm toward meeting with Dr. Cashew. [00:10:20] Speaker 02: And so my point with all that is just to say that at this point in September, Dr. Cashew had been experiencing hostility for requesting reasonable accommodations for months. [00:10:30] Speaker 02: And so at that point, I think a jury [00:10:32] Speaker 06: Can't hear as fast as you're talking. [00:10:34] Speaker 02: Sorry. [00:10:35] Speaker 02: And so I think at that point, a jury could conclude that at least one interpretation of this evidence would be that Dr. Cashew didn't feel comfortable asking for additional accommodations at that point, given the hostility that she'd faced, and also because her supervisor's email indicated a reluctance to meet from the beginning. [00:10:57] Speaker 02: And so I don't think that it conclusively shows [00:10:59] Speaker 02: that all of her reasonable accommodations were completely adequate at that time. [00:11:04] Speaker 06: And on the move, moving the office, that was about the noise, isn't that right? [00:11:09] Speaker 06: Yes. [00:11:09] Speaker 06: So she was given the headphones early on. [00:11:12] Speaker 06: Yes, so- Long before she said everything was great. [00:11:15] Speaker 02: Yeah, so I think that that indicates that the headphones weren't enough to block out- What is there on the record? [00:11:22] Speaker 02: Yeah, so at JA255, well, first of all, just to take a step back. [00:11:27] Speaker 02: So she was given the headphones from the first day of her employment, which was February 7, 2016. [00:11:34] Speaker 02: And she states in her declaration at JA255 that she first sought a move to a quieter office in March 2016. [00:11:48] Speaker 02: And so at that point, she already had the headphones. [00:11:52] Speaker 02: since or not much sorry. [00:11:58] Speaker ?: Yeah. [00:12:01] Speaker 02: Sorry, I meant to say JA273. [00:12:03] Speaker 02: She states at JA273 that she started asking Sawyer for an office accommodation in March 2016, but she'd been given the headphones on February 7, 2016. [00:12:15] Speaker 02: And so she already had the headphones when she was making the statement that her office was too noisy for her to hear the assistive technology. [00:12:23] Speaker 02: And earlier on in that same declaration, she says that she would wear her headphones every day. [00:12:27] Speaker 02: And so I think that that could have visibly signaled to her supervisors that her headphones were not enough to block out the noise of the printer, scanner, machine, and the noise of her other colleagues talking. [00:12:40] Speaker 02: So I think that the headphones given, the really key point here is that no accommodation was given to her after she asked to move to a quieter office. [00:12:48] Speaker 02: The headphones were given to her before. [00:12:50] Speaker 02: I think any supervisor could understand that if she's asking to move to a quieter office because she can't hear technology like the accommodation she already has aren't fixing that problem. [00:12:59] Speaker 02: And you also see that at J 267 because she's stated that she has to stay until 10 p.m. [00:13:04] Speaker 02: at night to finish her work because she couldn't hear. [00:13:07] Speaker 06: Another score failure to promote her is the way I think you put it in the brief. [00:13:15] Speaker 06: This isn't mentioned in the complaint. [00:13:18] Speaker 06: Only the demotion that shows up in the alleged demotion that shows up in the complaint. [00:13:25] Speaker 06: And so the district court didn't deal with separately with failure to promote. [00:13:32] Speaker 06: And I'm not sure it's a promotion, right? [00:13:34] Speaker 06: There was no change in GS level for Volcker, whoever it was, who got the position that she would have liked, or that you're saying she would have liked, right? [00:13:45] Speaker 02: Yes. [00:13:46] Speaker 06: Okay, so there was nothing in the complaint about that. [00:13:50] Speaker 06: The district court differ, didn't deal with it. [00:13:53] Speaker 06: And when asked whether she wanted to take the lead, which is all this is about, not her position, but the portfolio, some responsibility for that portfolio, she demurred. [00:14:08] Speaker 02: Well, okay. [00:14:08] Speaker 06: That's how she can complain about not being chosen when she's expressed no interest in the position. [00:14:15] Speaker 06: Well, so okay, so directly asked and expressed no interest and neither debunked Right either of them did so the supervisor. [00:14:24] Speaker 06: I think was good Case Evan bloom bloom. [00:14:30] Speaker 06: Thank you had to make a decision and made it [00:14:34] Speaker 02: Yeah, so I have two responses. [00:14:36] Speaker 02: So the first response is that at JA 291, Dr. Cashew said that she met with Sheber-Voltmer, her supervisor, and Voltmer supported her continued primary role on the portfolio and said that she would run that past Evan Bloom. [00:14:53] Speaker 02: So I think from that, this is a dispute of fact. [00:14:56] Speaker 06: And then the upper level supervisor decided the other way. [00:15:01] Speaker 02: Yes, but I think that a jury could find it discriminatory that the reason that state or could disbelieve states reason because it said that the reason that it didn't give her this role is because she didn't ask for it. [00:15:13] Speaker 02: But there's evidence in the record that she essentially did ask for it by speaking with her supervisor and asking her to check with Evan Bloom about whether she could continue in a primary role. [00:15:21] Speaker 06: And then my second point is that we know that Baltimore ever did that. [00:15:25] Speaker 02: Well, Volmer said that she never gave any recommendation to Bloom in her affidavit about who should take on the lead. [00:15:32] Speaker 06: But I think that as far as Bloom knew, she expressed no interest. [00:15:37] Speaker 06: The intermediate supervisor had never said anything one way or the other. [00:15:42] Speaker 02: Well, first of all, I think so. [00:15:43] Speaker 02: First of all, there's a dispute of fact, because obviously, Volmer says she never said anything to Bloom. [00:15:47] Speaker 02: But Cashew says Volmer told her that she would check with Bloom. [00:15:50] Speaker 06: So that's not inconsistent. [00:15:52] Speaker 06: We told her she would check with bloom, but turns out she never did Well, yeah, I guess but I think that it could be inferred that if she told a lot of inferences going Yeah, well my other inference are entitled to some inferences I'll grant you but not Right, but what about the problem of this wasn't raised that the failure brought just wasn't in the complaint in fact, it wasn't in the in the [00:16:17] Speaker 06: proceedings in the district court. [00:16:18] Speaker 06: It just goes up in your brief, different counsel, different arguments. [00:16:21] Speaker 06: That's not really quick, is it? [00:16:23] Speaker 02: Well, I think that definitely in the complaint at J206 at 103, and this is kind of, Doug telling with my second point that regardless of whether you call this a demotion or a promotion, our key argument here is that her responsibilities change significantly. [00:16:41] Speaker 06: And that's in the- Let's deal with that. [00:16:43] Speaker 06: Responsibility has changed. [00:16:44] Speaker 06: Why, what in the statute says a change of responsibilities is sufficient to make out a case? [00:16:51] Speaker 06: Well, I think that some of this... Are the responsibilities a term or condition of employment? [00:16:57] Speaker 02: Yes. [00:16:58] Speaker 06: Really? [00:16:59] Speaker 06: Well, I think that here... Responsibilities within a job? [00:17:03] Speaker 06: She did a lot of different things. [00:17:04] Speaker 06: Her evaluation lists about six different things that she was involved in. [00:17:11] Speaker 02: Yes, but I think that this court or the Supreme Court said it on call that terms and conditions aren't just reduced to what is a part of the contract. [00:17:19] Speaker 02: And this court said in Ciechowski versus Peters that a significant diminishment of responsibilities can be adverse to permit a claim under Title VII. [00:17:28] Speaker 02: And we're using the same standards here. [00:17:30] Speaker 02: And then also, we just had the Supreme Court case, Muldrow, where the key argument was a change in responsibilities because [00:17:37] Speaker 02: Jatanya Muldrow was moved from one role to another without being demoted. [00:17:42] Speaker 02: And she, her key argument was that her responsibilities. [00:17:46] Speaker 06: You need some harm. [00:17:48] Speaker 02: Yes, you need some harm. [00:17:49] Speaker 02: Some harm. [00:17:49] Speaker 02: Yes. [00:17:50] Speaker 06: And a change of responsibilities? [00:17:52] Speaker 02: Well, here we have, I think we do have some harm. [00:17:55] Speaker 06: I think it's also a material adverse action. [00:17:58] Speaker 02: I think a jury could find it to be a material. [00:18:00] Speaker 06: Really, it's even that? [00:18:01] Speaker 06: Not just, okay. [00:18:03] Speaker 06: Well, I, okay, so I- For the stars here. [00:18:06] Speaker 02: Well, no, I think that at JA524, you really get a good sense of what her responsibilities were prior to the switch and Bach taking over on October 25, 2016. [00:18:19] Speaker 02: And so prior to Bach taking over, she collaborated with interagency partners to run a conference in Helsinki on ocean acidification, provided expert technical advice on the topic, developed and reviewed calls for ocean acidification proposals, [00:18:35] Speaker 02: and then also spoke at inter-agency meetings and on behalf of the State Department. [00:18:39] Speaker 06: Which she continued to do apparently, right? [00:18:44] Speaker 06: At least through her emails. [00:18:46] Speaker 06: She's still involved, well after all. [00:18:50] Speaker 02: Well, so at J257 she explains how her duties changed after [00:18:55] Speaker 02: the like Beck taking over. [00:18:58] Speaker 02: And she states there that she was essentially reduced to a clerical role, that she could not speak on behalf of the State Department without Beck's permission. [00:19:06] Speaker 06: An estimate of how much time she spent on that portfolio? [00:19:10] Speaker 02: Yeah. [00:19:10] Speaker 02: So her performance review says that she spent a considerable amount of time on it and then a J524. [00:19:16] Speaker 02: And then if you look at the narrative description of what she did during her whole fellowship, it's almost all ocean acidification work. [00:19:22] Speaker 02: So I think from that, you could infer that at least- 524 that I'm looking at. [00:19:27] Speaker 06: Be engaged in a diverse range of ocean related issues over the last year. [00:19:32] Speaker 06: Also work to advance efforts to expand global ocean monitoring through the global ocean acidification network. [00:19:39] Speaker 06: Staffed in second world ocean assessment, separate issue, separate portfolio, more broadly made her expertise available widely within not just her office, [00:19:50] Speaker 06: but also the Bureau at large. [00:19:52] Speaker 02: Well, I think a jury could infer from this that because of the first sentences, a considerable amount of her time was spent advancing department efforts to combat ocean acidification. [00:20:01] Speaker 06: Yes, that's a fair inference on the page, but I'm not sure why that supports an action. [00:20:09] Speaker 02: Well, so just to go back, though, I think it's important to understand that after Beck took over, her duties changed drastically, or at least there's a dispute of fact over whether they did. [00:20:18] Speaker 02: So I think that this is at least a jury question as to whether her responsibilities were significantly diminished, because she says that she was reduced to a clerical role, which is different from a role in which she provides. [00:20:28] Speaker 06: That's what's said. [00:20:29] Speaker 06: But then after that, she's engaged in these emails. [00:20:31] Speaker 06: She clearly was doing more than just supporting both. [00:20:36] Speaker 02: Well, those emails were, you know, even under her own explanation of how her role changed, she did say that she could communicate with Beck's permission. [00:20:45] Speaker 02: And so it's possible that there were a few emails that that permitted her to send. [00:20:49] Speaker 02: And one of the key emails is about the conference in Helsinki, which everyone agrees that she took the primary lead on. [00:20:56] Speaker 02: So it may have been kind of grandfathered in that she'd already worked on that conference. [00:21:01] Speaker 02: But generally, I think there's a dispute of fact here over whether her roles changed significantly. [00:21:06] Speaker 02: She went from, as I said, running a whole conference in Helsinki and providing, you know, speaking on behalf of the State Department and inter-agency working group meetings, and also in staff meetings, to a role where she couldn't even speak in staff meetings on this topic at all without Beck's permission. [00:21:23] Speaker 06: And so I think any reason- Are we starting? [00:21:25] Speaker 06: Okay, go ahead. [00:21:27] Speaker 06: As far as we can tell, Beck just gave her blanket permission because there's no instance where she was, that we know of, where she was muffled. [00:21:34] Speaker 06: Thank you. [00:21:35] Speaker 05: I have just one final question on going back to the disparate treatment and non-renewal. [00:21:42] Speaker 05: So you were going to give us a quick list of what the evidence is from which not just that the proffered explanations were protectual, but that there was discrimination at work. [00:21:54] Speaker 05: And I'm just going to give you a chance to do that, but to focus on [00:21:59] Speaker 05: indicia that in fact indicate discrimination based on disability as opposed to maltreatment because the bosses were just not very charitable people. [00:22:10] Speaker 02: Yeah. [00:22:10] Speaker 02: So there are three basically groups of evidence that I'll highlight. [00:22:14] Speaker 02: First, the affidavit at J300 from Alicia Kahoon, a reader who worked regularly with Dr. Cashew. [00:22:20] Speaker 02: And she declared that, based on her experience working with Dr. Cashew, that [00:22:30] Speaker 02: That management also seem to resent the fact that people from our office were coming to assist doctor cashew and that someone had to be at the front door to let people from our office inside the managers at us which is Department of State seem to record reasonable accommodation for her as an as an imposition. [00:22:47] Speaker 02: And then later on, at paragraph eight, she states that, I also noticed that other employees were frequently treated better than the employees with disabilities with whom I worked. [00:22:56] Speaker 02: So that's one piece of evidence. [00:22:58] Speaker 02: The second piece of evidence is the evidence related to Sawyer, Cashew's first supervisor, who berated her when she was using readers and when she was trying to set up a printer [00:23:10] Speaker 02: to work with her assistive technology said, don't you see that people have better things to do, which could indicate that spending time on reasonable accommodations was a low priority for the office. [00:23:19] Speaker 02: And then he also engaged in pelvic movements whenever she was in his presence, which he did not do to other employees without disabilities. [00:23:28] Speaker 02: And she testifies that at JA71. [00:23:30] Speaker 02: And that appeared to be a way to exploit her limited eyesight, because I think a jury could infer that that was a way of exploiting her limited eyesight, because he assumed that she couldn't [00:23:39] Speaker 02: those derogatory gestures. [00:23:41] Speaker 02: And then third. [00:23:43] Speaker 05: I'm not quite following that one, because it would be one thing. [00:23:47] Speaker 05: I don't understand why that's discrimination based on disability, even if it's true that for somebody else to do the same kind of behavior, they'd have to have their back turned. [00:23:59] Speaker 02: Well, I think it's because it's taking advantage of the disability and sort of amusing himself at her expense, knowing that she has limitations that [00:24:08] Speaker 02: like sighted individuals don't have. [00:24:10] Speaker 02: And there's also the fact that she testified that he didn't do this to non-disabled employees, which is a desperate treatment. [00:24:17] Speaker 02: And then also, it's sort of like if you had a deaf employee and you said things in front of them that you knew they couldn't hear just for the purpose basically of like exploiting their disability for your own amusement. [00:24:31] Speaker 02: Yeah, and then our third piece of evidence is related to Bloom, Dr. Cashew's second other supervisor, [00:24:38] Speaker 02: higher up supervisor who would turn his back whenever she was in his presence, which this court has said can show discriminatory attitude in Tchaikovsky versus Peters, and then also did not respond to her complaints about the derogatory gestures of Sawyer. [00:24:56] Speaker 04: Let me make sure my colleagues don't have... [00:25:00] Speaker 04: Help me understand who made the decision on the renewal. [00:25:05] Speaker 04: There was AAA AAA S and then there was State Department. [00:25:10] Speaker 04: I take it those are two different entities and can you can you help me understand that better. [00:25:16] Speaker 02: Yes, so I think that they made the decision together because the State Department has admitted its involvement in this decision at least as to the staff's office, which is like [00:25:25] Speaker 02: the fellowship coordinating office. [00:25:28] Speaker 02: And then also, I guess there's a dispute of material fact over whether Sawyer and Bloom were involved in the decision. [00:25:34] Speaker 02: But there is evidence in the record suggesting that they were. [00:25:37] Speaker 02: So for instance, AAAS, before making the decision not to renew Dr. Cashew, called Sawyer to ask for his and Bloom's point of view on this. [00:25:48] Speaker 02: And that's at J375. [00:25:50] Speaker 02: And then also the AAAS 30B6 deponent [00:25:53] Speaker 02: testified at J-414 that if the host office and the fellow agree and both wish to seek a renewal, that AAAS wouldn't upset that decision. [00:26:04] Speaker 02: So that suggests that the State Department was involved. [00:26:06] Speaker 05: Thank you. [00:26:07] Speaker 05: And there's also, I guess, one of the letters at least speaks in terms of a three-way agreement. [00:26:12] Speaker 05: And I mean, there's obviously a question that later emerges about whether Cashew, in fact, was on board. [00:26:17] Speaker 05: But the other two legs are AAS and State. [00:26:20] Speaker 02: Yes, that's right. [00:26:21] Speaker 02: And that letter at JA 452 also references discussions with the host office as producing the decision not to renew. [00:26:31] Speaker 05: I'll give you a little bit of time for rebuttal. [00:26:32] Speaker 05: Thank you, counsel. [00:26:46] Speaker 03: Good morning. [00:26:48] Speaker 03: May it please the court, Johnnie Walker for the Secretary of State. [00:26:51] Speaker 03: The owners of the Department of State welcomes disabled employees and expends significant resources to ensure that their success at the agency. [00:26:59] Speaker 03: For Dr. Cashew, the department did that. [00:27:02] Speaker 03: On day one, when she began her one-year fellowship in 2016, it had acquired for her nearly a dozen different technologies and tools to accommodate her central vision loss. [00:27:12] Speaker 03: It provided her a desktop computer loaded with a software that can both read text out loud and zoom into the text. [00:27:20] Speaker 03: separate software that could also read out loud text, a laptop computer with both of those same softwares loaded onto it, an extra large monitor with an arm that she could use to extend it towards her face, a closed circuit television that she could use on her desk that she could put hard copy documents on, which would both magnify those documents and read them out loud to her. [00:27:39] Speaker 03: It also gave her a handheld device that she could take around the office to magnify things like displays on shared office equipment, [00:27:46] Speaker 03: and door numbers, as well as change the contrasts of those so that she can see them more clearly magnified. [00:27:52] Speaker 05: So most of this goes to the accommodation part of the case. [00:27:57] Speaker 05: And I know that that's been a meaty part of the briefing. [00:27:59] Speaker 05: But if you could start with where the other side started, which is on disparate treatment and the non-renewal. [00:28:07] Speaker 05: So as I read the ultimate decisional document, which is at JA-231, the first consideration mentioned [00:28:15] Speaker 05: is that there was a deadline to submit signed or new paperwork passed more than a month ago. [00:28:20] Speaker 05: And then the next one is that your request to change offices and mentors is not approved. [00:28:27] Speaker 05: There's some stuff in the middle about fit and things like that. [00:28:29] Speaker 05: It doesn't even sound like there's a whole bunch of reliance on that from your perspective, understandably, because that could, I'd bet, just dovetail with the office switch. [00:28:37] Speaker 05: But it sounds like that's what you think. [00:28:39] Speaker 05: But in terms of the signed paperwork being more than a month ago, which is the first thing that's stated, [00:28:45] Speaker 05: Just she did try to sign it. [00:28:48] Speaker 03: The record shows that she signed it and had it in her possession to turn in. [00:28:52] Speaker 03: But I think the key is that she consistently indicated her unwillingness to rejoin the office where her fellowship had been renewed and to be supervised by the deputy director of that office. [00:29:03] Speaker 03: And what you see consistently in the communication. [00:29:05] Speaker 03: Which deputy director? [00:29:06] Speaker 03: This is so here. [00:29:08] Speaker 05: But I thought what she was trying to clarify is that he was her supervisor. [00:29:14] Speaker 03: No, I mean, she says in her deposition that she wanted to change supervisors and she wanted to change offices. [00:29:20] Speaker 03: And she was continuously raising these concerns with the central office at the Department of State that makes these decisions. [00:29:27] Speaker 05: Did she not say, I'd like the letter changed so that it reflects that Sawyer is my supervisor, not my mentor? [00:29:34] Speaker 03: She did say that, and eventually Miss Dana reached out to her and said, I want to help understand your concerns with renewing with the Office of Ocean and Polar Affairs. [00:29:44] Speaker 03: Miss Cashew took over a month to get back to her and eventually did. [00:29:48] Speaker 03: And then Miss Dana responded that they would change Mr. Soher from her supervisor to her point of contact. [00:29:56] Speaker 03: Listen, I'm sorry, instead of mentor, they would call him a point of contact. [00:30:03] Speaker 03: Ms. [00:30:03] Speaker 03: Cashew, again, all this time, she's raising additional concerns about renewing with that office at all, saying that she didn't feel she was a good fit in that office and that she didn't want to be supervised by the person who is the deputy director of that office and is responsible in part for running the office. [00:30:18] Speaker 03: And so after Ms. [00:30:18] Speaker 03: Cashew doesn't respond to Ms. [00:30:20] Speaker 03: Dana's email, changing the designation of Mr. So here for over a week, [00:30:27] Speaker 03: AAS sends her that letter saying that her fellowship is not being renewed, that her request to change offices was being denied. [00:30:36] Speaker 05: So this entire explanation in your mind then turns on the notion that there's no reasonable dispute of fact on whether she would only accept renewal if her office was switched. [00:30:51] Speaker 03: I think that I don't know that that that we can get quite that far on the record that she was firm that she would absolutely not what she was definitely doing was raising concerns about the office that she had been renewed with that made the central office at state miss Dana. [00:31:07] Speaker 03: unwilling to process her renewal and accept her and renew it. [00:31:12] Speaker 03: There seems to have been a mutual concern about her fit in the only office that the Department of, I shouldn't say a mutual concern. [00:31:19] Speaker 03: There's a concern being raised by Cashew, which causes a concern on the part of the Department of State about Ms. [00:31:25] Speaker 03: Cashew being able to fit with the office, the only office in which she is being offered a spot. [00:31:32] Speaker 03: So I think that, I think that, [00:31:34] Speaker 03: You know, the explanation here is broadly consistent. [00:31:39] Speaker 03: She's definitely raising those concerns. [00:31:40] Speaker 03: There's no dispute about that in the evidence. [00:31:42] Speaker 03: And the Department of State is not renewing her position in the Office of Polar Affairs because she consistently expresses those concerns and does not retract them and explicitly accept the position in the office. [00:31:55] Speaker 05: So your view, I guess, is that she had expressed concerns about her current station. [00:32:01] Speaker 05: She might not have conditioned her renewal on switching station. [00:32:07] Speaker 05: But from state's perspective, she was concerned enough about her current station that she wasn't, that indicated a lack of sufficient commitment to the current station. [00:32:16] Speaker 05: And so then state thought, OK, look, you've said you're willing to sign. [00:32:22] Speaker 05: That's indisputed. [00:32:23] Speaker 05: This can't be about the paperwork of signing. [00:32:27] Speaker 05: That just seems like that's not possible. [00:32:29] Speaker 05: And, but what it indicated was you're not really that happy with where you are. [00:32:34] Speaker 05: And if you're not really that happy with where you are, then it's the fit just isn't good enough. [00:32:39] Speaker 05: And so we're not going to renew. [00:32:40] Speaker 03: That's kind of the way that you're- I think that's the way I put it. [00:32:42] Speaker 03: I don't think we see her explicit, Ms. [00:32:44] Speaker 03: Cascio, I don't think we see her explicitly conditioning on that, but she's certainly giving that impression with the concerns that she is raising. [00:32:51] Speaker 05: I see. [00:32:52] Speaker 05: And you think there's no, that's sufficient. [00:32:55] Speaker 05: there's enough of a clear indication of that in the evidentiary record that a jury couldn't conclude otherwise in terms of whether that's the real reason. [00:33:04] Speaker 03: Well, I want to back up a little bit. [00:33:06] Speaker 03: I'm just talking about the fact that I think the record is quite consistent. [00:33:09] Speaker 03: Even if you could draw the types of inconsistencies that my friend is drawing, they don't go so far as to demonstrate discrimination. [00:33:17] Speaker 03: This court's case law is clear that it's not enough to show the employer's reason to be pretext. [00:33:22] Speaker 03: And as I say, I don't think there's any indication of pretext here. [00:33:25] Speaker 03: It also has to show that the real reason is discrimination. [00:33:28] Speaker 05: I don't think that's true. [00:33:29] Speaker 05: It's not really judgmental. [00:33:31] Speaker 03: I think what ACA says is that there are times when the employer's explanation is so false and so disbelievable that it gives rise to a discriminatory motive that this is far from that circumstance. [00:33:45] Speaker 03: And I think this court has said. [00:33:46] Speaker 05: That's the government's view is that if the employer puts forward one explanation, [00:33:53] Speaker 05: And that explanation is disproved. [00:33:55] Speaker 05: It has to be so false that it could be discrimination, even if it's the only explanation that's given. [00:34:01] Speaker 05: I don't read the case. [00:34:03] Speaker 03: I read ACA as saying there are circumstances in which the explanation is so false that it gives rise to an indication of discrimination. [00:34:11] Speaker 03: And then the pretext cases say that an employer must show that the employer's reason is pretext and that the real reason is discrimination. [00:34:19] Speaker 03: But as I say, I think here, [00:34:21] Speaker 03: It doesn't come close to such falsity that there's some discrimination perceived here, and there's no pretext. [00:34:30] Speaker 03: And so what my friend does is try to rely on other indications of discrimination that she went through. [00:34:35] Speaker 03: Most of those relate to actions by Mr. Sohir and Mr. Bloom, the director and deputy director of the Office of Ocean and Polar Affairs. [00:34:44] Speaker 03: But the reason that those don't work here is because they both supported renewal of Miss Cashew's fellowship consistently. [00:34:53] Speaker 03: And she indicates that, I mean, my friend indicates that there was a call between the central office, I'd say I think it's the Office of the Science and Technology Advisor, to Mr. Sohear. [00:35:04] Speaker 03: But what Mr. Sohear testifies that call consisted of is that office asking if Mr. Sohear would be okay if that office decides not to renew Ms. [00:35:15] Speaker 03: Keshe's fellowship. [00:35:16] Speaker 03: So there's no indication of a cat's paw where Mr. Sohir, while indicating that he supports the renewal, somehow influences the central office to not renew it. [00:35:26] Speaker 03: It's quite the opposite. [00:35:27] Speaker 03: They check in with Sohir and say, we know that you support the renewal of the fellowship, but we want to withdraw it. [00:35:34] Speaker 03: Would that be OK with you? [00:35:42] Speaker 04: If I understand right, she took a month to reply to an email? [00:35:47] Speaker 04: Correct. [00:35:49] Speaker 04: Why isn't that alone a fireable offense, or at least a reason enough not to renew someone's fellowship? [00:35:56] Speaker 03: Yeah, I think it is a building block in this picture you have of the State Department. [00:36:02] Speaker 03: It had renewed Ms. [00:36:02] Speaker 03: Cashew's fellowship, let's be recall. [00:36:04] Speaker 03: It renewed it. [00:36:05] Speaker 03: It sent her a letter saying, congratulations, Dr. Cashew. [00:36:09] Speaker 03: Your fellowship has been renewed with the Office of Polar Affairs. [00:36:13] Speaker 03: Simply accept it. [00:36:15] Speaker 03: And what you have is a consistent string of events after that of her indicating that she did not want to work in that office, indicating that she did not want to work with that supervisor, and taking over long. [00:36:26] Speaker 03: to respond to emails and communications when she had been given a deadline. [00:36:31] Speaker 03: Now, she argues that her deadline had been extended indefinitely, but that's not what the email records show. [00:36:37] Speaker 03: I mean, she said that, I'm going to be on vacation next week. [00:36:40] Speaker 03: And she's told, we can certainly take up this issue next week when you return. [00:36:44] Speaker 03: But she's never told you can turn in this paperwork whenever you want indefinitely into the future. [00:36:48] Speaker 03: Do you agree with this? [00:36:50] Speaker 04: A reasonable jury [00:36:54] Speaker 04: could only conclude that after someone has given a week-long extension of a deadline, misses that deadline, and blows past it by an entire extra month, that the employer has a non-discriminatory reason to fire them. [00:37:13] Speaker 03: Yes, absolutely. [00:37:14] Speaker 03: And it's not a termination here, right? [00:37:16] Speaker 03: It's nothing so dramatic as that. [00:37:17] Speaker 03: To not renew their fellowship. [00:37:20] Speaker 03: Yes. [00:37:21] Speaker 03: I would agree with that. [00:37:22] Speaker 03: And I agree, particularly when you look at it in the broader picture of the concern she's raising, it's even more or less. [00:37:28] Speaker 06: The letter saying congratulations also said you have a week to return this. [00:37:35] Speaker 06: And that extends it that at least for the weeks you would be away, at least. [00:37:42] Speaker 03: That's correct. [00:37:42] Speaker 03: Nobody ever says she has an indefinite forever extension to return this. [00:37:46] Speaker 05: So where do you see the stated reason being that you took too long to respond? [00:37:52] Speaker 05: What is the indication that the reason she didn't get the renewal is because she took too long to respond? [00:37:57] Speaker 05: Is that coming from the fact the letter says the deadline passed more than a month ago? [00:38:03] Speaker 03: The reason is it's in the, I believe it's a June 19th letter from the director at AAAS that indicates that she did not accept replacement within the Office of Polar Affairs in a timely manner. [00:38:14] Speaker 03: And it also mentions that there's not a good fit and that her request to change offices. [00:38:20] Speaker 05: So it's that letter is then that has to be from the line that says it passed more than a month ago. [00:38:25] Speaker 03: Right. [00:38:26] Speaker 05: Yeah. [00:38:26] Speaker 05: It's clear that it's clear that they didn't care that she didn't respond more than a month ago. [00:38:33] Speaker 03: Perhaps not independently, but it's all mentioned in this letter as part of a broader reason. [00:38:39] Speaker 03: You did not timely accept the offer that we provided you. [00:38:41] Speaker 03: You're consistently raising concerns about renewing with the office, the only office that you've been permitted to renew in, and working with that supervisor. [00:38:49] Speaker 03: So I think this all fits within the same narrative, and there's nothing contradictory about the time that she takes to sign the paper. [00:38:58] Speaker 04: Maybe I'm a little confused on what was going on in the month was it kind of constant back and forth between her and the people who were deciding what the next year's fellowship would look like or was there a period of several weeks up to even a month where they just didn't hear. [00:39:16] Speaker 03: The record makes it look like there was a period where they did not hear from her for a month. [00:39:21] Speaker 03: She ghosted. [00:39:23] Speaker 03: At least she gave no indications that she wanted to accept with the Office of Polar Affairs. [00:39:28] Speaker 03: I mean, she testifies, I think, in her deposition that at some unspecified time, she was calling and leaving messages with them. [00:39:36] Speaker 03: But she also testifies that she was inquiring about her request to change offices. [00:39:41] Speaker 04: Is there someone who either emailed her or left her a message that she didn't [00:39:45] Speaker 04: reply to for about a month. [00:39:47] Speaker 03: There's no indication of that. [00:39:48] Speaker 03: I mean, except for the email that we have in the record that she did not, from Ms. [00:39:51] Speaker 03: Dana, that she did not respond to in a month. [00:39:54] Speaker 05: And was there any indication when she did indicate at one point, I'm happy to come in and sign, right? [00:39:59] Speaker 03: Yes, but not to renew with the Office of Polar Affairs. [00:40:01] Speaker 03: She's still, during that period, raising concerns about the office to which she has been assigned. [00:40:06] Speaker 05: Did she say that in that part where she said, I'm happy to come in and sign? [00:40:09] Speaker 05: Did she say if it's with a different office? [00:40:11] Speaker 05: Or was that which synopsis to that? [00:40:15] Speaker 03: But we know at that time that she is still raising concerns about working in that office. [00:40:20] Speaker 03: So she did say she's willing to come in and sign. [00:40:22] Speaker 03: But afterwards, we still have communications with her where Ms. [00:40:25] Speaker 03: Dana is trying to address her concern about renewing with the Office of Polar Affairs. [00:40:30] Speaker 05: No, I understand that. [00:40:31] Speaker 05: But I'm just saying in the part where she says, I'm happy to come in to sign, if the timing is going to be an issue, [00:40:35] Speaker 05: I'm happy to come in to sign. [00:40:37] Speaker 05: Is there something in that communication that indicated a condition on her part that, of course, that means I've raised some concerns about the office. [00:40:43] Speaker 05: And what I mean by that is, I'll come in and sign. [00:40:46] Speaker 05: I mean, obviously, if you switch offices. [00:40:49] Speaker 05: I'm not saying that you have to have that. [00:40:50] Speaker 05: I'm just wondering whether that is the way that you think we should infer that, or is it different from that? [00:40:57] Speaker 05: I'm not trying to say what you need to establish to prevail in getting an affirmance. [00:41:02] Speaker 05: I'm just wondering how you think we should understand that condition. [00:41:05] Speaker 03: I think you have to understand it in the whole context. [00:41:07] Speaker 03: Then you have the next month in July. [00:41:09] Speaker 03: This is at JA. [00:41:10] Speaker 05: In the whole context, the way you understand that is I'm happy to come in and sign. [00:41:14] Speaker 05: But of course, I've been raising questions about an office switch. [00:41:17] Speaker 05: So what I mean by that is I'm happy to come in and sign if you switch offices like I've been asking. [00:41:22] Speaker 03: Right I mean because those could those concerns are still being voiced and she's still voicing them on July 7th at JA 229. [00:41:29] Speaker 03: She's still saying I will not sign off on paperwork that lifts Dave so here as my mentor he is not my mentor. [00:41:37] Speaker 03: And then she says and then Miss Dana responds to that that's July 7th Miss Dana responds July 12th that that change will be made. [00:41:46] Speaker 03: And she never responds. [00:41:48] Speaker 03: So on July 19, she gets the letter from AAS saying, look, your request to change offices and supervisors is not approved, and we're not withdrawing the renewal offer. [00:42:02] Speaker 04: Any further questions? [00:42:06] Speaker 04: Is there a question? [00:42:08] Speaker 04: From the State Department's perspective, and for the purposes of the forum, what's the difference between a mentor and a supervisor? [00:42:15] Speaker 04: I recognize not all supervisors are good mentors, but it seems like mentoring is usually part of the job description for supervisors. [00:42:24] Speaker 03: It is. [00:42:24] Speaker 03: It seems to have been a term of art that was used in connection with this fellowship. [00:42:28] Speaker 03: So I think most fellows would be assigned a mentor. [00:42:31] Speaker 03: And that mentor was typically designated by the Department of State, by the host agency. [00:42:38] Speaker 03: That makes sense. [00:42:41] Speaker 05: Thank you, Councilor. [00:42:43] Speaker 05: Thank you. [00:42:43] Speaker 05: Please affirm. [00:42:50] Speaker 05: And we'll give you two minutes for rebuttal. [00:42:52] Speaker 02: Thank you. [00:42:53] Speaker 02: I'd like to begin with JA-229, which is the email in which, sorry, JA-449, which is the email where Dr. Cashew [00:43:06] Speaker 02: said that she would come in to sign the paperwork. [00:43:09] Speaker 02: So on June 7th, 2016, Dr. Cashew wrote the following email. [00:43:14] Speaker 02: She said she renewed her membership, et cetera, et cetera. [00:43:17] Speaker 02: Then she said, Dave Sawyer is the supervisor, comma, boss. [00:43:21] Speaker 02: Dave Hogan is the mentor. [00:43:23] Speaker 02: Not sure which one you need to list at this point. [00:43:25] Speaker 02: If you need any paperwork signed by tomorrow, since I did not receive it via email, I could come by the AAAS office and try and sign it. [00:43:31] Speaker 02: And so from this email, I think a jury could include that she was willing to [00:43:36] Speaker 02: submit signed paperwork keeping her in the Office of Ocean and Polar Affairs because, as I said before, for Dave Sawyer to be her supervisor, she would need to be in the Office of Ocean and Polar Affairs because that is where he is situated. [00:43:49] Speaker 02: And then also, Judge Walker, to your question about the difference between a mentor and a supervisor, the AAAS deponent testified at J408 [00:43:59] Speaker 02: That a mentor is not the same thing as a supervisor and like a mentor is to someone is that you for away at the bottom of the page. [00:44:06] Speaker 02: The mentor is someone who's going to be providing some general guidance answer questions give input sometimes mentors and fellowship host office supervisors are the same person that's not always the case and so here I think what we can take from the combination of these two emails is that. [00:44:21] Speaker 02: She was willing to commit to Dave Sawyer being her supervisor and her staying in the Office of Ocean and Polar Affairs as early as June 7th. [00:44:29] Speaker 02: And then meanwhile, in the interim period. [00:44:32] Speaker 06: Supervisor, yes. [00:44:32] Speaker 06: OK, but not mentor. [00:44:33] Speaker 06: That's the point. [00:44:34] Speaker 02: Yeah. [00:44:34] Speaker ?: OK. [00:44:35] Speaker 02: And then the other point is that she testified at J64 that she was calling every single week to check in on the status of her paperwork. [00:44:47] Speaker 02: So from that perspective, even though she hadn't responded to the email, I think a reasonable person could show the guess asserts. [00:44:55] Speaker 02: This is at J64. [00:44:56] Speaker 02: And it's near the top of the page. [00:44:58] Speaker 02: She says, so I was reaching out every week or so. [00:45:01] Speaker 02: And so from that, even though she didn't respond by email, a jury could infer that she was following up through other mediums of communication. [00:45:09] Speaker 02: And the last point I'll make is that the July 12th email, once again, does not suggest in any way that she's missed any renewal deadline or that there's any risk to her fellowship. [00:45:21] Speaker 02: It just says that her change to change [00:45:24] Speaker 02: The reference to Dave Sawyer from mentor to supervisor is approved. [00:45:27] Speaker 02: So at that point, everyone agreed that she could continue in the Office of Ocean and Polar Affairs with Dave Sawyer as her supervisor, which is what she's been asking for from the beginning. [00:45:35] Speaker 05: What's your response to the notion that, look, [00:45:42] Speaker 05: It's not that there was some formal idea that you had to sign by a particular date and you let that date slip. [00:45:49] Speaker 05: It's that we sent you a letter that gave you an opportunity to sign off on renewal. [00:45:54] Speaker 05: You've raised some concerns. [00:45:57] Speaker 05: There's concerns that you've raised for some time about not being happy with where you are and wishing that you could switch to a different office. [00:46:04] Speaker 05: We sent you a letter. [00:46:07] Speaker 05: Really, I mean, you've raised a couple of things and we've tried to address those, but there hasn't been a great deal of responsiveness on your part. [00:46:13] Speaker 05: As a general matter, it just seems like you're not happy enough to be where you are that we're willing to go forward with the renewal because we'd like to have a situation in which there's a commitment to the task at hand. [00:46:25] Speaker 05: And that's the best way to read the July 19 letter is that, yes, you missed the deadline, but what we mean by you missed the deadline is that [00:46:35] Speaker 05: You got past the deadline. [00:46:38] Speaker 05: You raised some complaints as to why you didn't sign. [00:46:40] Speaker 05: There's still some lingering stuff about how you're not particularly happy. [00:46:43] Speaker 05: At this point, it's just you didn't sign off with the requisite enthusiasm and timeliness that it makes sense to go forward with this. [00:46:54] Speaker 05: The fit's just not quite right. [00:46:56] Speaker 02: Well, I think that I guess that could be one inference of the evidence, but it's certainly not the only inference of the evidence that you could draw from the evidence, because there's other evidence in the record that I just said that she was enthusiastically trying to stay in the Office of Ocean and Polar Affairs as early as June. [00:47:12] Speaker 02: She tried to submit the paperwork at a June 3 meeting. [00:47:15] Speaker 02: She again, as I said, emailed on June 7 trying to submit her paperwork to stay in the Office of Ocean and Polar Affairs. [00:47:20] Speaker 02: She again followed up on July. [00:47:21] Speaker 02: She called every week. [00:47:22] Speaker 02: And then on July 7, again, [00:47:24] Speaker 02: explained that she just wanted to make this one clerical change from mentor to supervisor. [00:47:30] Speaker 02: And then, again, on July 12, the State Department responded, that's fine. [00:47:34] Speaker 02: No problem. [00:47:35] Speaker 02: We can go ahead. [00:47:36] Speaker 02: So I do think that if the State Department this whole time was actually getting more and more frustrated with her about the fact that she was taking too long to respond or any other of those kinds of concerns, that some of it you would expect to see in their email on July 12. [00:47:50] Speaker 02: But there's nothing like that. [00:47:51] Speaker 02: It just says, please confirm you are on board with this approach. [00:47:53] Speaker 02: So certainly, I suppose a jury could draw that inference, but it's not the only inference that you can draw from that. [00:47:59] Speaker 04: What did she do after July 12th? [00:48:02] Speaker 02: She responded on July 20th that that sounds great. [00:48:05] Speaker 02: But by then, they'd already sent her the email on July 19th rescinding her fellowship. [00:48:10] Speaker 02: So they didn't give her, they didn't follow up. [00:48:12] Speaker 02: They didn't say like, first of all, when she sent the email on July 12th, they didn't say respond within a week or give her any deadline by which to respond to confirming that she was on board with that approach. [00:48:24] Speaker 02: So she responded approximately a week later saying, that sounds great. [00:48:27] Speaker 02: But by then they'd already rescinded her fellowship without alerting her that she had to respond. [00:48:32] Speaker 06: July 19 communication from state. [00:48:35] Speaker 06: You referred to it as an email. [00:48:37] Speaker 06: Is it clear that it was not a letter? [00:48:40] Speaker 06: References to as a letter. [00:48:42] Speaker 02: I believe Yeah, so it's a letter that I think was sent by email But yeah, it's a day. [00:48:49] Speaker 06: I ask this because it seems odd that the next day apparently she hadn't seen it She says that sounds great Well, she was saying well she says [00:49:01] Speaker 02: Yeah, but she says that, like, that sounds great, but that AAAS, sorry. [00:49:07] Speaker 02: Basically, she says, like, that sounds great, but AAAS maybe has changed its mind or something. [00:49:12] Speaker 02: So I need to find it. [00:49:14] Speaker 05: Where is that? [00:49:14] Speaker 05: July 20th? [00:49:19] Speaker 01: Sorry. [00:49:28] Speaker 05: Oh, I see. [00:49:28] Speaker 05: It's on J229. [00:49:31] Speaker 02: Oh, yes. [00:49:34] Speaker 05: This sounds great, but it sounds like AAAS has made their own decision about wording. [00:49:40] Speaker 05: That's about wording. [00:49:45] Speaker 06: So it betrays no awareness of having been told that the job was off. [00:49:50] Speaker 02: Yes. [00:49:51] Speaker 02: I think at that point, she hadn't yet received the email. [00:49:57] Speaker 04: What email address was it sent to? [00:50:03] Speaker 04: I guess, was it sent to the same email address she used to send the July 20th email? [00:50:10] Speaker 01: I'm not sure. [00:50:11] Speaker 05: I don't know. [00:50:14] Speaker 05: Do we even have indications that it was email, that the letter was email? [00:50:19] Speaker 05: Maybe there is. [00:50:20] Speaker 01: I'm just looking. [00:50:30] Speaker 05: It's everything's email nowadays, but I just don't know. [00:50:32] Speaker 01: Yeah. [00:50:45] Speaker 05: It's not immediately available. [00:50:46] Speaker 05: That's OK. [00:50:47] Speaker 05: Just one final, just to put a final bow on this. [00:50:49] Speaker 05: When she says in the July 20th emails, it sounds like AAAS has made their own decision about the wording. [00:50:55] Speaker 05: What's that a reference to? [00:50:57] Speaker 02: Do you know? [00:50:58] Speaker 02: I don't think the record really reflects that, but it suggests that she may have received the email. [00:51:03] Speaker 02: I mean, that line. [00:51:05] Speaker 06: Using point of contact instead of so here instead of menswear. [00:51:11] Speaker 02: Well, I think it's not clear, because at that point, she wanted Sawyer to be referred to as her point of contact slash supervisor. [00:51:19] Speaker 02: And Dana had responded that that was acceptable. [00:51:23] Speaker 05: And so then for her to say that the wording isn't... It would be strange if she was referring to the July 19th letter by saying, it sounds like AAAS has made their own decision about the wording, because [00:51:41] Speaker 05: The July 19th letter doesn't have anything to do with the wording. [00:51:43] Speaker 05: It just has to do with non-renewal. [00:51:46] Speaker 01: Yeah. [00:51:47] Speaker 05: So it's just odd if AAAS has made their own decision about the wording. [00:51:53] Speaker 05: It's meant to be a reference to the letter that was sent the previous day, which she may or may not have received by the time she said that. [00:51:58] Speaker 05: So that's great. [00:52:01] Speaker 02: Yes, I'm not sure what the best inference of that is. [00:52:06] Speaker 04: I'm trying to think through what a reasonable jury should be expected to do with this, chronology. [00:52:12] Speaker 04: Let's say that a reasonable jury would think that Dr. Cashew was faultless from, I think, June 6, somewhere around there, where the offer for a renewal was first made. [00:52:29] Speaker 04: through July 12, when this email says, basically, we've decided to give you what you want. [00:52:36] Speaker 04: Please confirm that you are on board with this approach, and I will let AAAS know. [00:52:42] Speaker 04: And then she goes a week without confirming that she is on board. [00:52:49] Speaker 04: I mean, if you were offered a job or your current job, hypothetically, a clerkship, [00:52:58] Speaker 04: Even if the judge was very forgiving, if you were offered the job, having been given the conditions you wanted, and he or she said, let me know, and you took a week, you ghosted him for a week, seems like a viable offense or a reason not to continue to offer the job to you, right? [00:53:23] Speaker 02: Well, I think that here, I mean, in the context of this email, Jenny and Dana herself had taken nearly a week, five days, to respond to Dr. Cashew's email. [00:53:32] Speaker 02: She took until July 12 to a July 7 email. [00:53:35] Speaker 02: And so in the context of that type of communication, I'm not sure that a reasonable jury would necessarily conclude that Dr. Cashew's waiting of about a week was unreasonable, especially because Dana did not give her a specific deadline by which to reply. [00:53:52] Speaker 05: Thank you. [00:53:54] Speaker 05: Thank you, counsel. [00:53:55] Speaker 05: Thank you to both counsel. [00:53:55] Speaker 05: We'll take this case under submission.