[00:00:00] Speaker 01: Case number 24-5022, Tiffany Lewis, appellant, versus Douglas A. Collins, in his official capacity as Secretary of the Department of Federal Affairs of the United States. [00:00:12] Speaker 01: Ms. [00:00:12] Speaker 01: Huff, for the appellant. [00:00:14] Speaker 01: Mr. Bardo, for the appellee. [00:00:16] Speaker 02: Good morning. [00:00:17] Speaker 02: Good morning, Your Honors. [00:00:18] Speaker 02: May it please the Court, Sacred B. Huff, on behalf of Appellant Tiffany Lewis. [00:00:24] Speaker 02: I will address two issues this morning. [00:00:27] Speaker 02: First, I will address the issue of timeliness. [00:00:30] Speaker 02: Second, I will address the glaring error of the district court finding that Ms. [00:00:35] Speaker 02: Lewis's case lacks any evidence of discrimination despite the fact that only two black candidates had their scores lower during this election process. [00:00:45] Speaker 02: In addition, the selecting official claimed that the white selectee had the best interview despite the fact that the evidence established that the selecting official never conducted interviews. [00:00:59] Speaker 02: Turning to the threshold issue of timeliness, Ms. [00:01:02] Speaker 02: Lewis's deadline to contact the counselor must be extended under the EEOC's regulations. [00:01:09] Speaker 02: The district court in this jurisdiction has recognized the general principle that a person should suspect discrimination upon learning that someone outside of their race or outside of their gender has been selected. [00:01:23] Speaker 02: However, the district court has also considered other relevant facts when appropriate. [00:01:30] Speaker 02: Here, even though Ms. [00:01:32] Speaker 02: Lewis knew that the selectee was outside of her race and gender, no reasonable person would have immediately suspected discrimination under the circumstances of Ms. [00:01:43] Speaker 02: Lewis's case. [00:01:47] Speaker 02: Any indicia of discrimination were obscured by other relevant facts. [00:01:53] Speaker 02: First, the selectee had a doctorate, which Ms. [00:01:56] Speaker 02: Lewis lacked. [00:01:58] Speaker 02: Second, Ms. [00:01:59] Speaker 02: Lewis was not interviewed for the position, so she was unaware that she was actually one of the top scoring candidates. [00:02:07] Speaker 02: Under those objective facts, any reasonable person would have believed that the selection was based on relative qualifications, not race, not sex. [00:02:19] Speaker 02: Ms. [00:02:19] Speaker 02: Lewis did not develop a reasonable suspicion of discrimination until she met with the selecting officials supervisor on an unrelated matter. [00:02:30] Speaker 02: During that conversation, the supervisor asked Ms. [00:02:34] Speaker 02: Lewis unsolicited about the selection process, even though she did not raise the issue. [00:02:40] Speaker 02: And then the supervisor asked Ms. [00:02:42] Speaker 02: Lewis whether the selecting official and the selectee were living in the 1950s or something. [00:02:49] Speaker 02: Any reasonable person would have understood the racial undertone of that comment. [00:02:55] Speaker 02: Therefore, upon hearing that comment, that's when Ms. [00:02:59] Speaker 02: Lewis contacted a counselor within 45 days of that meeting. [00:03:03] Speaker 02: Ms. [00:03:03] Speaker 02: Lewis did not wait until she had any proof of discrimination. [00:03:08] Speaker 02: She did not wait until she discovered the meaning of that comment. [00:03:13] Speaker 02: And she did not wait until she had any supportive facts of discrimination. [00:03:18] Speaker 06: Well, she had circumstantial evidence. [00:03:20] Speaker 06: I mean, she had, in effect, the material for a prima facie case from the day the action was taken, which is so there's a kind of irony here where the prima facie case standard is quite low. [00:03:32] Speaker 06: She was qualified. [00:03:34] Speaker 06: She had applied for the job. [00:03:35] Speaker 06: Someone who was not in her protected classes was hired for the job. [00:03:40] Speaker 06: So in a very minimal sense, she had [00:03:43] Speaker 06: She had that from the get-go. [00:03:46] Speaker 06: And then, I mean, I think the difficulty for you is the wording of the regulation, which seems to cut against the idea of a reasonable suspicion standard, where it permits tolling where the individual did not know and reasonably should not have known that the personnel action occurred. [00:04:09] Speaker 06: And so it's not asking whether the person lacked knowledge that discrimination occurred, but that the personnel action occurred. [00:04:20] Speaker 06: And I'm just not sure, despite the equities of Ms. [00:04:24] Speaker 06: Lewis's case and the irregularities that occurred in the granting of the promotion to someone else, it's not clear that you have the room that you would need under the regulation the way it's written. [00:04:37] Speaker 02: Thank you, your honor. [00:04:38] Speaker 02: I'd like to parse that out. [00:04:40] Speaker 02: There were several parts to that. [00:04:42] Speaker 02: But addressing first the question of the prima facie case, at the moment that Ms. [00:04:49] Speaker 02: Lewis learned of her non-selection, it is true that she knew that the selectee was white. [00:04:54] Speaker 02: However, at that time, she had no reason to suspect that he was not the most qualified candidate. [00:05:00] Speaker 02: Therefore, using your example of the prima facie case, [00:05:04] Speaker 02: Had Ms. [00:05:05] Speaker 02: Lewis went to a counselor at that time and alleged discrimination because she believed that the most qualified candidate or who she believed at that time to be the most qualified candidate, Your Honor, I do not see that she would have established even a prima facie case when she's alleging what she believed to be the most qualified. [00:05:26] Speaker 02: Particularly when the employee raises a question of discrimination, it's because they believe that someone less qualified or there are other circumstances that give rise to the inference of discrimination. [00:05:40] Speaker 02: Yet here, it was the fact that the only inference was that the more qualified white person was selected. [00:05:48] Speaker 06: You're not asserting that to win, she would have to show that she was more qualified or that he was less qualified. [00:05:53] Speaker 06: But in order for that to raise an inference of discrimination, she would have to show that. [00:05:58] Speaker 06: I mean, someone who's qualified, even if at some marginal degree, the person who gets the job is more qualified, you can still make out a racial discrimination or a sex discrimination case if you're [00:06:12] Speaker 06: not as qualified, but you are qualified and you show that the decision was taken based on an impermissible factor and that the employer was not seeking necessarily only the most qualified, but just someone who was qualified and brought other skills. [00:06:30] Speaker 02: Your Honor, [00:06:32] Speaker 02: It's the fact that the discriminatory nature of the action was obscured by the fact of the objective facts of the selectees qualifications. [00:06:42] Speaker 02: Also going back to your second point regarding the text of the regulation. [00:06:47] Speaker 02: In appellant's brief, we state that the court need not defer to the EEOC and based on Loper-Bright, but upon further review of Loper-Bright, [00:06:58] Speaker 02: The Supreme Court was not addressing the commissions or a federal agency's interpretation of its own regulation. [00:07:07] Speaker 02: Here, the EEOC is not interpreting a statute. [00:07:11] Speaker 02: However, because it's only interpreting its own regulation, and it's the EEOC who says that even with their revised regulation, that incorporates the reasonable suspicion standard, it is our position that the court should give deference [00:07:27] Speaker 02: to the EEOC in reading its own regulation. [00:07:31] Speaker 02: So in multiple cases decided by the EEOC, they recognize the reasonable suspicion standard. [00:07:38] Speaker 02: So we disagree with the district court and appellee's position that the text of the regulation does not allow the reasonable suspicion standard. [00:07:49] Speaker 05: I had a few questions about the merits. [00:07:52] Speaker 05: So the threshold one is, is your theory a motivating factor theory or a because of theory? [00:08:01] Speaker 05: If this case were to go to trial, what, as you likely know, that dramatically affects the kind of relief that you can secure at trial. [00:08:09] Speaker 05: And so have you made a, what's the theory? [00:08:12] Speaker 05: Which of the two roads are you going down? [00:08:15] Speaker 02: A motivating factor, Your Honor. [00:08:18] Speaker 05: Which means you can't get damages or anything like that. [00:08:20] Speaker 05: You just get declaratory relief, right? [00:08:23] Speaker 05: And some sort of injunction and maybe some other things, but you cannot get damages. [00:08:33] Speaker 02: Under Title VII of the Civil Rights Act, yes, Your Honor, that you are entitled to compensatory damages. [00:08:43] Speaker 05: In a Title VII case, if you only show that a prohibited factor was a motivating factor rather than a but for cause, you are not entitled to damages. [00:08:54] Speaker 05: Well, under the show that is a but for cause in order to get damages. [00:08:59] Speaker 05: So that's why it's important to know what the theory is. [00:09:02] Speaker 02: Your Honor, under the federal sector regulation, which is different from private sector, [00:09:09] Speaker 02: So even under a motivating factor, yes, a federal sector plaintiff would be entitled to compensatory damages. [00:09:19] Speaker 05: And then if it does go to trial... [00:09:21] Speaker 05: It'll be your burden to show that race played at least a motivating factor. [00:09:28] Speaker 05: And I understand the argument based on reducing the scores. [00:09:32] Speaker 05: Is there anything else at trial in the record that you would point to to affirmatively suggest that this selecting official was motivated by racial animus? [00:09:42] Speaker 02: Yes, Your Honor. [00:09:43] Speaker 02: Of course, as you mentioned, there is the change of score, not only of Ms. [00:09:48] Speaker 02: Lewis's score, but another black candidate's score. [00:09:51] Speaker 02: But there are several, because again, going back to the district court's opinion, the district court found that this case lacks any evidence of discrimination, even though Ms. [00:10:01] Speaker 02: Lewis has demonstrated the falsity of several shifting explanations that the secretary has provided. [00:10:08] Speaker 02: And contrary to the district court's understanding, the falsity of the lawyer's explanation will allow a jury to infer discriminatory motive. [00:10:18] Speaker 02: Here, the explained reasons were shifted numerous times. [00:10:24] Speaker 02: But in addition to that, it's the fact that accepting the initial explanation that Ms. [00:10:31] Speaker 02: Lewis wasn't [00:10:32] Speaker 02: selected, the selecting officials stated that she tied with another male candidate. [00:10:39] Speaker 02: Instead of interviewing both candidates, according to the selecting official, he lowered only Miss Lewis's score. [00:10:46] Speaker 02: That aversion to interviewing any woman is also evidence of a sexist motive, but not only the shifting reasons, but his evasiveness. [00:10:58] Speaker 02: The selecting official had an opportunity to provide an explanation for his reasons on multiple occasions. [00:11:05] Speaker 02: There was an investigation from the whistleblower's office. [00:11:09] Speaker 02: There was a separate investigation from the EEO office. [00:11:12] Speaker 02: Instead of participating in those investigations, he resigned abruptly. [00:11:18] Speaker 02: So that evasiveness is also circumstantial evidence of discrimination. [00:11:27] Speaker 02: And I see that I'm over my time. [00:11:30] Speaker 03: We'll give you a couple of minutes and reply. [00:11:31] Speaker 03: Okay, thank you. [00:11:54] Speaker 03: And I ask you about the December meeting and my recollection is that the three people involved read who got the job that. [00:12:06] Speaker 03: Lewis want miss Lewis wanted. [00:12:10] Speaker 03: Ms. [00:12:11] Speaker 03: Lewis and the supervisor above everybody, including Brinker, that that meeting was because she was not given the opportunity by Reed to take some sort of six-month assignment. [00:12:25] Speaker 04: That's correct, Your Honor. [00:12:26] Speaker 03: All right. [00:12:27] Speaker 03: And so how did the failure to get the promotion that Reed got enter into that conversation? [00:12:39] Speaker 03: Is it in the record? [00:12:41] Speaker 04: The only thing we have in the record regarding that, Your Honor, is Ms. [00:12:45] Speaker 04: Lewis said that during the conversation, Mr. Burgess unprompted asked her if she had applied for the supervisory position. [00:12:55] Speaker 04: When Mr. Burgess was deposed, he said he didn't recall mentioning it. [00:12:59] Speaker 04: But we do, we just have that testimony from Ms. [00:13:02] Speaker 04: Lewis. [00:13:03] Speaker 04: But the meeting was about, like you said, Your Honor, this opportunity to do a six-month detail. [00:13:10] Speaker 04: And Dr. Reed said, I can't allow it because losing you will be detrimental. [00:13:17] Speaker 04: We value your work in the office, but you're welcome to escalate it if you would like. [00:13:22] Speaker 04: And Ms. [00:13:23] Speaker 04: Lewis elected to do so. [00:13:25] Speaker 04: But that's ancillary to the [00:13:28] Speaker 04: to the main controversy in this case. [00:13:34] Speaker 04: We would just point that under this court's existing precedence, Tiffany Lewis's obligation to contact an EEO counselor within 45 days began on the date that she learned that she was not selected for the supervisory position, but that Ernest Reed, a white male, was selected instead. [00:13:55] Speaker 04: And because Ms. [00:13:56] Speaker 04: Lewis did not do this, she did not timely exhaust her administrative remedies. [00:14:01] Speaker 04: This court in the past has assumed without deciding that the reasonable suspicion standard applies and nonetheless has held that that's a crime. [00:14:16] Speaker 05: Is that a good legal rule if that were our rule? [00:14:18] Speaker 05: Anytime you apply for a job and someone who has a different race from you is hired, it's on you to immediately suspect racial animus? [00:14:28] Speaker 04: It is, Your Honor, because the point of the regulation is to resolve these things quickly. [00:14:34] Speaker 05: The burden on the effect is that if someone thought, boy, I was qualified, but that guy, he's great. [00:14:41] Speaker 05: He's more qualified than I am. [00:14:44] Speaker 05: And so they don't suspect anything. [00:14:47] Speaker 05: And six months later, they find a piece of paper. [00:14:51] Speaker 05: It's an email that says, I didn't hire her because she was black. [00:14:55] Speaker 05: And that's a pretty good reason to suspect for the first time this was racially motivated. [00:15:01] Speaker 05: And the consequence of your rule is that claim is time barred because the person didn't run around with a sense of racial grievance in the first place. [00:15:10] Speaker 04: Well, the text of the regulation, Your Honor, says, oh, that's the rule. [00:15:13] Speaker 04: It's within 45 days of learning of the personnel action. [00:15:17] Speaker 05: Completely appreciate the argument on the text of the regulation. [00:15:20] Speaker 05: I'm asking about what constitutes reason to know that discrimination occurred. [00:15:24] Speaker 05: And it seems to me a very odd rule if we've really said you ought to immediately go and investigate just because someone who's not your race was selected for a position. [00:15:36] Speaker 04: Well, the EEOC considered that argument when it promulgated the regulation, but it decided it was best to resolve these things quickly and encourage people to come forward to the EEOC. [00:15:49] Speaker 04: All a complaint would need to do is call the EEO counselor and say, I think there might be discrimination here. [00:15:55] Speaker 04: And the EEO counselor can then go talk to a few people and maybe come back and say, I'm sorry, ma'am, you've [00:16:02] Speaker 04: We acknowledge you submitted this complaint, but we looked into it a little bit and there's nothing here. [00:16:08] Speaker 04: They determined that that was preferable to having these issues sit around in the evening. [00:16:14] Speaker 05: I appreciate that. [00:16:15] Speaker 05: We have a couple of interesting cases, one of which Ms. [00:16:20] Speaker 05: Lewis cites in her brief that sort of say, notwithstanding the regulation, there is a more general equitable tolling rule. [00:16:30] Speaker 05: And so one of these cases is Alsafi v. Vilsack, and it relies on a case that Ms. [00:16:35] Speaker 05: Lewis did cite, which is Lowe v. Heckler. [00:16:39] Speaker 05: And what Alsafi says is, [00:16:41] Speaker 05: We have this regulation, but separate and apart from it, we have a rule that the time within which EEO counseling must be sought is likewise told until the claimant knows or has reason to know the facts that would support a charge of discrimination. [00:16:56] Speaker 05: So that's not talking about the reasonable suspicion standard. [00:16:59] Speaker 05: It's importing the [00:17:01] Speaker 05: private employee equitable tolling rule into cases like this. [00:17:06] Speaker 05: Are you familiar with that case or know any reason why it wouldn't apply here? [00:17:10] Speaker 04: I believe that's a Sixth Circuit case, is it not, Your Honor? [00:17:14] Speaker 05: This is a D.C. [00:17:14] Speaker 05: Circuit case from 2016. [00:17:15] Speaker 05: I appreciate it wasn't cited in the briefs, but the Lowe v. Heckler case it relies on was cited, and it's a case exactly like this one. [00:17:24] Speaker 05: And it just says there's a free-floating tolling rule separate and apart from the regulations language. [00:17:30] Speaker 04: Well, the tolling rule is in the text of the regulation. [00:17:34] Speaker 04: And it says that the tolling rule only applies when the person did not know that the personnel action occurred. [00:17:44] Speaker 04: So this would apply in a situation like one of the personnel actions in Miller, Miller versus Hirschman, where the plaintiff knew the selection had occurred, but wasn't aware that the selectee was not in his protected class. [00:17:59] Speaker 06: That seems like a very strange, just very narrow rule if here, Ms. [00:18:07] Speaker 06: Lewis concededly knew that the person was in protected class, but that factor is the stand-in for is the person somewhat aggrieved by what they think is a discriminatory action, not just has been subject to a non-discriminatory action. [00:18:24] Speaker 06: If you look at the [00:18:26] Speaker 06: at the regulation and read it all together. [00:18:28] Speaker 06: It seems to me significant that the 1614.104A [00:18:39] Speaker 06: It's directed at aggrieved persons who believe they have been discriminated against. [00:18:47] Speaker 06: And then it talks about an aggrieved person having to initiate contact. [00:18:51] Speaker 06: But the aggrieved person is defined as someone who believes they have been discriminated against at the top of the regulation. [00:19:01] Speaker 06: And then in the discussion, there's a question about whether the person [00:19:08] Speaker 06: knew or reasonably should have known about the discriminatory matter or personnel action. [00:19:16] Speaker 06: And it seems, I know there's a dispute in the briefing about whether discriminatory applies only to matter or also applies to personnel action. [00:19:25] Speaker 06: It seems like that [00:19:29] Speaker 06: top-line definition of an aggrieved person is someone who believes they've been discriminated against supports the distributive reading of discriminatory matter or discriminatory personnel action. [00:19:43] Speaker 06: And I guess the question is, why would the government take a different position? [00:19:50] Speaker 06: And maybe this is just repeating the question that Judge Garcia asked, which is, it seems like it fosters [00:19:59] Speaker 06: a kind of mistrust and seeing discrimination under every rock, as opposed to fostering confidence in the decision-making and only running the time when someone is alerted to something more particular that actually raises a suspicion or a concern, puts the person on notice that they should be investigating for potential discrimination. [00:20:26] Speaker 04: Right, yes, Your Honor. [00:20:28] Speaker 04: I mean, that's a policy choice that the Commission made and how it... And I guess I'm really focusing on the language of the regulation. [00:20:36] Speaker 06: I mean, the... The person agreed to someone who believes they've been discriminated against. [00:20:42] Speaker 06: And if they don't have reason to believe that yet, because even though they didn't get the promotion, they didn't know or reasonably know that the personnel action was a discriminatory personnel action. [00:20:55] Speaker 06: Why wouldn't that be the most reasonable way to read this? [00:21:00] Speaker 04: Because knowing that the selectee was someone of a different race or someone not in your protected class is enough to believe that you were discriminated against under these regulations and under this court's prior precedents in Stuart and Andrea Lack. [00:21:17] Speaker 06: What about Miller, which really seems to adopt the reasonable suspicion standard? [00:21:20] Speaker 06: You would just say, yeah, but only insofar as you don't know the race or sex or protected characteristics of the selectee. [00:21:29] Speaker 04: Well, Miller didn't really parse the text of the regulation. [00:21:33] Speaker 04: It didn't. [00:21:35] Speaker 04: asked to deal with the question of whether reasonable suspicion applied. [00:21:40] Speaker 04: But it's similar to Stewart and Drielak it assumed without deciding that reasonably suspicious reasonable suspicion applied. [00:21:48] Speaker 04: And this court can do the same thing in this case by following Miller and Stewart and [00:21:55] Speaker 04: ruling that because Ms. [00:21:56] Speaker 04: Lewis didn't contact the EEO counselor within 45 days of learning of the personnel action, her claim is time barred. [00:22:08] Speaker 06: But it does rely, Miller does rely on the reasonable suspicion standard because Miller knew of his non-selection, but he only later learned of the sex of the selectee and therefore had a reason to suspect that sex discrimination might have been a factor. [00:22:28] Speaker 06: So I thought that was operative and not just assumed without deciding in that case. [00:22:31] Speaker 06: Am I wrong about that? [00:22:33] Speaker 04: I believe Miller did use language to that effect, but that shouldn't alter the outcome in this case, because unlike in Miller, Ms. [00:22:40] Speaker 04: Lewis knew of the sex and the race of the selectee. [00:22:44] Speaker 06: Right, so it's the narrowness of the reasonable suspicion of standard, not that the court didn't in fact embrace it, because it did embrace it there. [00:22:53] Speaker 04: It did, but in later cases, the court has, I believe Drielak was after Miller where the court said that we haven't officially decided that the reasonable suspicion standard applies. [00:23:07] Speaker 04: But the court in this case though doesn't even need to answer that question where reasonable suspicion applies. [00:23:13] Speaker 04: It can simply follow prior precedent. [00:23:16] Speaker 05: On the mayor, do you agree with Ms. [00:23:18] Speaker 05: Huff that in a suit against a federal employer, the causation standard is motivating factor will stop? [00:23:25] Speaker 04: I'm sorry, could you repeat that question, Your Honor? [00:23:30] Speaker 05: My understanding was that at least in suits against private employers, the statute draws a distinction between cases brought on a motivating factor theory or a but for theory, and the remedies differ. [00:23:42] Speaker 05: Ms. [00:23:42] Speaker 05: Huff said that distinction doesn't exist in cases against the federal government. [00:23:47] Speaker 05: Do you agree with that? [00:23:48] Speaker 04: We disagree with that, Your Honor. [00:23:51] Speaker 04: Your Honor was correct that for a motivating factor theory, Ms. [00:23:55] Speaker 04: Lewis would not be entitled to pain and suffering damages. [00:24:00] Speaker 04: were she to appeal, she could be entitled to back pay and attorney's fees and possibly injunctive relief. [00:24:07] Speaker 06: So she'd be entitled to back pay, but not other forms of compensatory relief. [00:24:11] Speaker 05: That's correct, Your Honor. [00:24:14] Speaker 05: So Brinker decided, the record says he decided he was going to interview two people. [00:24:20] Speaker 05: Was there some policy that required him to do that, or was that just his stated choice? [00:24:26] Speaker 04: There was no policy, Your Honor. [00:24:27] Speaker 04: That was simply his stated choice for how he wanted to fill the position. [00:24:32] Speaker 04: OK. [00:24:34] Speaker 05: And doesn't that actually undercut the government's theory that this might have been improper, but if it was improper, it was just because he preselected his friend, Reed. [00:24:42] Speaker 05: It actually makes it look like there was a legitimate interview process going on. [00:24:51] Speaker 05: plaintiff would say, once they realized based on the resume scores that you might have to interview a black person, they made some changes so that both black applicants fell below the interview cutoff. [00:25:05] Speaker 04: Well, Brinker simply made an error when he was combining the score sheets. [00:25:14] Speaker 04: And the story he told, it came out piecemeal, but it's part of one continuous story. [00:25:21] Speaker 06: This is something that I have a little bit of trouble about in the way the district court wrote the opinion. [00:25:28] Speaker 06: Saying that about the facts is to decide the issues of fact, not to ask whether a reasonable fact finder could find otherwise. [00:25:37] Speaker 06: A reasonable fact finder might decide that it's all one and he was making some kind of surmise about having broken the tie. [00:25:49] Speaker 06: And then later he realized, no, I just made a keyboarding error. [00:25:52] Speaker 06: But without giving a spin or a preferential reading as a fact finder would, there are a lot of conflicts in the decision maker's testimony here. [00:26:06] Speaker 06: No? [00:26:07] Speaker 04: Well, we would disagree, your honor. [00:26:09] Speaker 04: Mr. Brinker had always maintained that he only intended to interview two applicants. [00:26:16] Speaker 04: And he had thought previously that if two candidates were tie, he would break the score himself. [00:26:24] Speaker 04: But in this case, he didn't need to break the tie himself. [00:26:28] Speaker 04: In this case, he didn't need to break the tie himself. [00:26:30] Speaker 04: because when he made that keyboarding error changing one of William Itel's scores from a 5 to a 4, Ms. [00:26:39] Speaker 04: Lewis was one point below Nathaniel Turnip Seed. [00:26:52] Speaker 04: And with regard to [00:26:58] Speaker 05: Can you clarify, do you understand the relationship between Wilson and Brinker? [00:27:04] Speaker 05: Was it Wilson, his title is executive assistant. [00:27:10] Speaker 05: She's sort of like sitting next to Brinker's office. [00:27:13] Speaker 04: He wasn't, I don't believe he was in Brinker's chain of command, but he didn't know Ms. [00:27:21] Speaker 04: Lewis and he didn't know any of the races of the applicants. [00:27:26] Speaker 04: So he completely went in blindly in terms of race as he was reviewing the names on the list. [00:27:35] Speaker 04: He testified that he didn't know Ms. [00:27:37] Speaker 04: Lewis's race. [00:27:38] Speaker 04: He didn't know Reginald Wright's race. [00:27:40] Speaker 06: Although isn't there also at least conflicting evidence in the record insofar as I think both Ms. [00:27:47] Speaker 06: Lewis and Mr. Wilson said that they had been at meetings and various gatherings of personnel where they had met him, they knew who he was, and they assumed that he would know who they were and that by observing them, he would know their sex and race. [00:28:07] Speaker 04: Well, Mr. Wilson, I believe his testimony was that he may have seen Ms. [00:28:11] Speaker 04: Lewis, but it didn't seem as though he would be able to pick her out of a lineup. [00:28:17] Speaker 06: Right. [00:28:17] Speaker 06: That's his testimony. [00:28:19] Speaker 06: But she and he, Wilson and Lewis, raise a contrary factual assertion from which, as a matter of circumstantial evidence, a fact finder might find that that was not the case, that he actually did know who they were and he knew their sex and race. [00:28:37] Speaker 04: Well, that contradicts, though, Mr. Wilson's sworn testimony. [00:28:42] Speaker 06: Exactly, but they've also given sworn testimony. [00:28:44] Speaker 06: That's why we have juries. [00:28:45] Speaker 06: I'm just saying that we were at a summary judgment posture here. [00:28:48] Speaker 06: And so his testimony would defeat her ability to win on summary judgment, but it wouldn't eliminate a material dispute of fact that would defeat the government summary judgment. [00:29:04] Speaker 04: Well, Your Honor, isn't Mr. Wilson in a better position than Ms. [00:29:07] Speaker 04: Lewis to know what Mr. Wilson did? [00:29:09] Speaker 06: That would be an argument for the jury, right? [00:29:13] Speaker 04: It would be, but the plaintiff kind of misconstrues the deposition testimony from Mr. Wilson. [00:29:24] Speaker 04: And he never says that he knew who Ms. [00:29:27] Speaker 04: Lewis was and knew what her race was. [00:29:29] Speaker 04: He just said, I may have seen Ms. [00:29:31] Speaker 04: Lewis at some conferences. [00:29:35] Speaker 03: Let me ask you something. [00:29:37] Speaker 03: This record, even though it's on summary judgment, is replete with cronyism. [00:29:44] Speaker 03: And the way I read it, Brinker had made up his mind before anybody else applied with the telling, read, no worries, I'll send you this ahead of time, so on and so forth, so that he'd made up his mind before Ms. [00:30:01] Speaker 03: Lewis even applied for the job. [00:30:05] Speaker 03: So how do we factor that in to whether there was any evidence of discrimination other than this third party making this remark? [00:30:21] Speaker 04: It's clear from the record that Mr. Brinker and Dr. Reed had a professional friendship, so to speak. [00:30:29] Speaker 04: They would exchange resumes, they would exchange ideas on various projects they were working on, and it is possible that [00:30:40] Speaker 03: Is there any dispute that he told him ahead of time? [00:30:44] Speaker 03: Don't worry. [00:30:45] Speaker 03: You've got the job. [00:30:46] Speaker 03: I mean, there's all sorts of quotes. [00:30:48] Speaker 04: I know there is testimony in the record to that effect, but that would just show evidence of pre-selection, and pre-selection in and of itself is not unlawful. [00:30:58] Speaker 06: In this situation, I think I read that all the people in the tier that Ms. [00:31:04] Speaker 06: Lewis and Mr. Reed and I think maybe [00:31:10] Speaker 06: that their tier was all people who were either women or members of racial minorities or groups or both. [00:31:20] Speaker 06: And so the applicant here out of, I think, was the white applicant who was male was Reed. [00:31:30] Speaker 04: That's correct. [00:31:32] Speaker 06: But these are all... So how can you disaggregate so-called cronyism from [00:31:38] Speaker 06: race and sex discrimination. [00:31:40] Speaker 06: If you look historically at the development of civil rights law and the understanding through litigation of how discrimination often works, it's not because someone is being hateful. [00:31:53] Speaker 06: It's because they want to bring someone [00:31:57] Speaker 06: close to them, to work with them, who they identify with more, they feel more comfortable with. [00:32:02] Speaker 06: They might not feel comfortable working with someone who is not of their same race. [00:32:07] Speaker 06: And so I'm not sure that the cronyism somehow excludes a jury's ability on this record to find that there was, in fact, discrimination. [00:32:18] Speaker 06: Is that your argument that it would exclude that, or just that the... I'd just be interested in your addressing that. [00:32:26] Speaker 04: In order to establish pretext, the plaintiff needs to show, one, that the employer's explanation was false, and two, that the motivation was discrimination, not some other reason. [00:32:39] Speaker 04: And there's, given Mr. Brinker and Dr. Reed's professional relationship, you can't jump to the conclusion from there that it somehow was based on race. [00:32:52] Speaker 04: They knew each other from their days serving together in Iraq. [00:32:55] Speaker 06: So that's cronyism. [00:32:56] Speaker 06: Isn't that separately? [00:32:58] Speaker 06: I mean, it's not part of Ms. [00:32:59] Speaker 06: Lewis's case. [00:33:00] Speaker 06: But isn't that separately a violation of civil service law? [00:33:04] Speaker 06: Did the agency ever pursue that? [00:33:07] Speaker 06: I mean, you have to have a posting. [00:33:09] Speaker 06: It has to be public. [00:33:11] Speaker 06: You have to follow certain procedures. [00:33:13] Speaker 06: It sounds like there's at least a violation of civil service law, no? [00:33:16] Speaker 04: There is not, because they did post the opportunity. [00:33:20] Speaker 04: And they did review multiple resumes and interview two candidates. [00:33:24] Speaker 06: So you're not saying that the government's legitimate non-discriminatory reason was corneas? [00:33:29] Speaker 04: No, we're not saying that. [00:33:30] Speaker 06: The bias, if there was it, is corneas. [00:33:34] Speaker 04: Yeah, we're saying that to the extent that Ms. [00:33:38] Speaker 04: Lewis has maintained that Dr. Reed had an unfair advantage, and to the extent that there is an unfair advantage, the record shows that it's because of their prior professional relationship. [00:33:48] Speaker 05: This is going back to one of my earlier questions. [00:33:50] Speaker 05: If he had just decided to preselect Reed, why did he interview two people? [00:33:55] Speaker 05: Why did he have all these scores go into the resume? [00:33:58] Speaker 05: It sounds like he hadn't preselected Reed. [00:34:00] Speaker 05: He wanted to, or at least someone could conclude, he wanted to interview the top two applicants, which is what he said. [00:34:07] Speaker 05: And then it sure looks like, right, why did he interview two people if he preselected Reed? [00:34:15] Speaker 04: Well, we're not saying that he did preselect Reed. [00:34:19] Speaker 04: I mean, he knew Mr. Reed, he knew Mr. Turnip Seed, who was the runner up. [00:34:24] Speaker 05: The district court said he preselected Reed and he knew Turnip Seed. [00:34:28] Speaker 05: So then he was faced with, if he wanted to [00:34:37] Speaker 05: Your position is that he did interview Mr. Turnipseed. [00:34:40] Speaker 05: He did, yes. [00:34:41] Speaker 05: Because he wanted to know if Mr. Turnipseed was a better applicant than Mr. Reed. [00:34:46] Speaker 04: I would presume so, Your Honor. [00:34:47] Speaker 05: Yes. [00:34:48] Speaker 05: Right. [00:34:49] Speaker 05: And what the plaintiff says is because he had committed to interviewing two people and he saw that the second person was going to be a black woman, [00:35:01] Speaker 05: and potentially a black man, he instructed Wilson to lower the score for those two applicants. [00:35:08] Speaker 05: And Brinker and Wilson will testify that that didn't occur. [00:35:10] Speaker 05: And they will cross examine and argue in closing that that is exactly what occurred because otherwise this is just too fishy to buy. [00:35:20] Speaker 05: And why is that an unreasonable argument to make to a jury? [00:35:25] Speaker 04: Well, there's no testimony that Mr. Brinker told Mr. Wilson to lower the scores of black applicants. [00:35:33] Speaker 04: That's not in the record. [00:35:34] Speaker 05: That would be direct evidence of discrimination, which nobody ever has. [00:35:39] Speaker 05: Right. [00:35:39] Speaker 05: Instead, you rely on circumstantial evidence, which is... [00:35:42] Speaker 05: They mysteriously docked the score, not of the white applicant, Mr. Turnipseed, but of the two black advocates. [00:35:49] Speaker 05: And when you look at the email exchange, it does not say, I looked at their resumes, and so I'm lowering the score. [00:35:57] Speaker 05: There's no explanation given for day one, good score for Ms. [00:36:01] Speaker 05: Lewis, day two, bad score. [00:36:04] Speaker 05: Just says, here you go. [00:36:05] Speaker 05: And a reasonable juror could conclude there was a separate discussion about why he was doing that, couldn't they? [00:36:11] Speaker 04: I would disagree, Your Honor, because there's testimony from Mr. Wilson for why he lowered the score, and the reason he lowered the score is because both Ms. [00:36:20] Speaker 04: Lewis and Mr. Wright had applied for a substantially similar position in Chicago, and Mr. Wilson was reviewing applications for both, and he took a second look at the headquarters list. [00:36:33] Speaker 04: after he had finished reviewing the resumes for Chicago to make sure his ratings were consistent. [00:36:39] Speaker 04: And that's what led to the scores being lowered. [00:36:41] Speaker 04: He wanted to make sure the headquarters scores were consistent with the Chicago scores. [00:36:48] Speaker 03: Okay. [00:36:52] Speaker 03: Thank you. [00:36:53] Speaker 04: Thank you, Your Honor. [00:36:56] Speaker 03: Ms. [00:36:57] Speaker 03: Huff, why don't you take two minutes? [00:37:04] Speaker 02: Thank you, Your Honors. [00:37:07] Speaker 02: I want to address the two very important factual points that were raised. [00:37:12] Speaker 02: Judge Henderson, to your point, you mentioned that there were three attendees to the December 26, 2018 meeting. [00:37:19] Speaker 02: However, there were only two attendees, the selecting official supervisor and Ms. [00:37:25] Speaker 02: Lewis. [00:37:26] Speaker 03: The district court was wrong then because he said Reed was there. [00:37:30] Speaker 02: Exactly. [00:37:31] Speaker 02: We pointed that out in our brief that that is incorrect on Joint Appendix page 139. [00:37:36] Speaker 02: You will see a calendar invitation from Burgess, that's the Selecting Official Supervisor, and it's to Ms. [00:37:44] Speaker 02: Lewis only. [00:37:45] Speaker 02: So they were the only two people who attended that meeting, which made it even more bizarre that [00:37:51] Speaker 02: the selection process. [00:37:57] Speaker 02: Now, it was Reid who helped organize the meeting because he escalated the issue but to be clear, he was not present. [00:38:04] Speaker 02: Okay. [00:38:05] Speaker 02: Going to another point raised by the secretary. [00:38:10] Speaker 02: The secretary explained that one of the reasons that Wilson allegedly lowered the score of two black candidates was because after he looked at the Chicago score sheet, which is an unrelated position or a different position, I should say, he then looked at the headquarters position. [00:38:28] Speaker 02: But if you turn to Joint Appendix 56 and you look at the email, [00:38:34] Speaker 02: Wilson had already completed the Chicago score sheet on July 20th, 2018. [00:38:40] Speaker 02: That's prior to when he completed the headquarters. [00:38:44] Speaker 02: And you see in the email, he's responding to his initial email providing the headquarters score sheets. [00:38:51] Speaker 02: So the whole explanation itself isn't worthy of any credence. [00:38:57] Speaker 02: And after he provided the headquarters position, that's again when he lowered the position. [00:39:02] Speaker 02: And that's where you see on July 24th, after he's already reviewed the Chicago score sheets, after he's already reviewed the headquarters score sheets, he then lowers the scores of the two black candidates. [00:39:15] Speaker 02: And there's no dispute on that fact. [00:39:17] Speaker 06: I'm not sure I'm following. [00:39:18] Speaker 06: I mean, I understand generally the point you're trying to make, but it's not credible that he was trying to align his scores across the two promotion competitions when he lowered Ms. [00:39:36] Speaker 06: Lewis's score because something about the chronology. [00:39:39] Speaker 02: Exactly, because the secretary states that initially the Wilson provided the headquarters score sheets, then he reviewed the Chicago score sheets, and upon reviewing the Chicago score sheets, he re-looked at the headquarters score sheets. [00:39:56] Speaker 02: But if you look at Joint Appendix 56, that's not actually what happened. [00:40:02] Speaker 02: So if that's his explanation, [00:40:04] Speaker 06: But I had read that a little bit differently, that he had submitted the Chicago score sheets, as you say, earlier. [00:40:10] Speaker 06: Exactly. [00:40:11] Speaker 06: And then he's doing the headquarters one. [00:40:14] Speaker 06: But then he reviews me and he looks back and he sees, oh, I gave a different score and I've already handed it in for Chicago. [00:40:21] Speaker 06: So instead of changing that one up, I should change this one down. [00:40:25] Speaker 06: That's what I took to be the narrative, is that [00:40:28] Speaker 06: Is that contradicted by the evidence of record that you're pointing to? [00:40:31] Speaker 06: The notion that he could have submitted it, but then referred back to it. [00:40:35] Speaker 06: That's not what he says? [00:40:37] Speaker 02: Well, that's not what was explained. [00:40:39] Speaker 02: And that's not what's in the secretary's brief. [00:40:42] Speaker 02: In the secretary's brief, they explained that he hadn't submitted the Chicago score sheets. [00:40:48] Speaker 02: But that's plainly incorrect, because you see the email was already given on July 20, 2018. [00:40:56] Speaker 02: Wilson then provided the headquarters score sheet initially on July 23, 2018. [00:41:02] Speaker 02: And then, again, on July 24th, that's when he changed the score sheets, and specifically by changing, he lowered the scores of the two black candidates. [00:41:12] Speaker 06: So he submitted not only the Chicago one already, but he says he hadn't, and then he submitted the headquarters one, and after he submitted it, he changed. [00:41:24] Speaker 02: Exactly, at least that was the argument in the brief. [00:41:27] Speaker 06: So I think really the hard point for you in this case is the timeliness point. [00:41:32] Speaker 06: And we have the reading of the regulations that there is a reasonable suspicion standard. [00:41:39] Speaker 06: But the really tough hurdle, I think, is that the Miller and Drylock seem to say that the reasonable suspicion standard is met [00:41:51] Speaker 06: as long as the claimant knows that the selectee was not in the protected class that she is in. [00:42:03] Speaker 06: And so it seems like a very narrow reasonable suspicion standard, at least as our court has read it. [00:42:10] Speaker 06: And I wonder if you have any [00:42:13] Speaker 06: cases that are strong on that or any authority that you would want us to look at? [00:42:19] Speaker 06: I mean, I know Judge Garcia raised a slightly separate authority that is from our court and binds us, but is there anything more that you have on that? [00:42:32] Speaker 02: Your honor, this court hasn't addressed Ms. [00:42:35] Speaker 02: Lewis's circumstances directly. [00:42:37] Speaker 02: And even reading just the general principle of the reasonable suspicion standard, it doesn't contemplate other facts that may obscure the discriminatory nature. [00:42:49] Speaker 02: As we discussed earlier, generally when someone believes that they are the most qualified candidate and then they see that someone else has been selected, yes, under those circumstances, seeing someone outside of your protected class may give rise to a reasonable suspicion, but that cannot foreclose any other facts that may [00:43:11] Speaker 02: either obscured the discriminatory nature or situations like Ms. [00:43:16] Speaker 02: Lewis's in which she's really the exception to the general rule. [00:43:20] Speaker 02: And even with the general principle, it's actually silent on is there any other situation in which when you see that someone is outside of your protected class, is there ever a situation in which that alone does not give rise to reasonable suspicion? [00:43:38] Speaker 02: And just as a policy matter, it cannot be dispositive. [00:43:42] Speaker 02: And just the text of the regulation itself, the EEOC makes clear that it's intended to be a broad exception to this general rule to contact the counselor in 45 days. [00:43:55] Speaker 02: Because if you look at that last clause, that the deadlines can be extended for any reason deemed sufficient by the commission. [00:44:04] Speaker 06: But the commission didn't extend in this situation, which is troubling. [00:44:08] Speaker 06: I take your point that there is a kind of generosity with exceptions, at least where the commission is concerned. [00:44:15] Speaker 06: But I guess my assumption would be that the writing the rule the way it is to leave broader discretion to the commission doesn't necessarily imply a broader reading of [00:44:35] Speaker 06: of a tolling that could be triggered by the claimant herself. [00:44:38] Speaker 06: And I guess the concern is if we were to adopt the rule that you advocate, that a plaintiff's reasonable belief that the selectee is more qualified than she was, and if that could indefinitely toll the limitations period until the claimant learns otherwise, [00:44:57] Speaker 06: It seems that many, many people would be able to make the same claim and render this 45-day time limit illusory. [00:45:09] Speaker 06: And I'm just not sure how, I mean, you say that her situation is unusual, but the rule that you've advocated, which seems, it just seems like it could blow a big hole in the 45-day limit. [00:45:24] Speaker 02: Your honor, if I may address that, it's the fact that the court in examining what triggered reasonable suspicion would have to look at what fact was available later that wasn't available when the plaintiff first learned of the non selection. [00:45:41] Speaker 02: So that's why Ms. [00:45:42] Speaker 02: Lewis's case is unusual in that she did have [00:45:45] Speaker 02: this triggering event, the meeting with the selecting official supervisor, and that may not be available or that may not be the circumstance in other cases to blow up this 45-day deadline, because typically if someone believes that they have been discriminated against and they're not waiting for supportive facts, because that's a standard that we're not advocating for, they can't wait until they have [00:46:10] Speaker 02: proof of discrimination, only reasonable suspicion. [00:46:14] Speaker 02: And that's what Ms. [00:46:15] Speaker 02: Lewis did. [00:46:16] Speaker 02: So in other cases in which other people, they may already have a suspicion, but then they wait to collect facts, they go speak with their coworkers. [00:46:24] Speaker 02: Well, that would demonstrate that they had some suspicion, but they sought supportive facts or they sought evidence. [00:46:31] Speaker 02: And that's not what we're advocating for. [00:46:33] Speaker 02: But in addition to that, [00:46:35] Speaker 02: If it's an unusually long time, so let's say that a plaintiff waited three or even five years, well, other doctrines will apply. [00:46:43] Speaker 02: You have the doctrine of latches. [00:46:45] Speaker 02: So that would essentially kind of cure the issue that you have raised. [00:46:50] Speaker 06: But I see- Statutory limitations for her? [00:46:53] Speaker 06: Putting aside the exhaustion? [00:46:56] Speaker 02: Well, I guess, let me be sure in your question, you said the statute of limitations, to even bring the claim that it's the 45 days to contact the counselor. [00:47:07] Speaker 06: But in terms of filing in court, assuming you've exhausted timely, isn't there also a period of time by which you have to, is it three years or? [00:47:15] Speaker 02: No, Your Honor. [00:47:16] Speaker 02: So once there's been final action, so in this case, whether it's the final decision of the EEOC or even a final agency decision, she has 90 days to bring her claims to court. [00:47:31] Speaker 03: I just have one detail, and that is, and I can find it in the record, but I just want to clear it up now. [00:47:38] Speaker 03: I thought no one was interviewed. [00:47:42] Speaker 02: Well, Your Honor, that's a disputed fact, all the more reason that this case, assuming the secretary has articulated legitimate reason, needs to be remanded. [00:47:51] Speaker 03: Does Lewis dispute, she obviously wasn't interviewed, that Turnip Seed was not interviewed? [00:47:58] Speaker 02: Well, it's the fact that, again, it's disputed. [00:48:01] Speaker 02: But the selecting official conducted no interviews. [00:48:05] Speaker 02: The selecting official did not interview the selectee or any other candidate. [00:48:10] Speaker 02: Therefore, there's falsified records because there are interview score sheets. [00:48:14] Speaker 02: But those are falsified records, Your Honor. [00:48:17] Speaker 03: So I'll ask again, was anybody interviewed in your estimation, in your opinion? [00:48:25] Speaker 02: No, Your Honor. [00:48:26] Speaker 02: No interviews were conducted. [00:48:28] Speaker 03: Thank you.