[00:00:57] Speaker 02:
Foley-Hinnen, please.

[00:01:06] Speaker 02:
Ms.

[00:01:07] Speaker 02:
Williams?

[00:01:08] Speaker 03:
Yes, Your Honor.

[00:01:21] Speaker 03:
Good morning, Your Honor.

[00:01:22] Speaker 03:
Good morning.

[00:01:23] Speaker 03:
Marisa Williams on behalf of Patricia Foley-Hinnen.

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We are both from Denver.

[00:01:27] Speaker 03:
And we are very excited to be here today because Ms.

[00:01:30] Speaker 03:
Foley Hinnant filed her EEO complaint more than 14 years ago against the GAO.

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This is the first time she's actually had an attorney able to speak with judges about her case.

[00:01:45] Speaker 01:
Is this kind of 14-year period aberrational or common for this particular board or personnel appeals board?

[00:01:57] Speaker 01:
14 years.

[00:01:59] Speaker 03:
I believe that this is a little bit aberrational, but for GAO, I'm not sure that it's really that much out of the norm.

[00:02:09] Speaker 03:
What I can say, because I represent federal employees in executive agencies where we have the EEOC and the MSPB, it would not take 14 years to get to this point.

[00:02:21] Speaker 03:
It simply wouldn't.

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And part of the problem with this process all along has been GAO

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has been essentially the fox guarding the hen house.

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At every single stage of her complaint, GAO has had ultimate control over whether she got to pursue her complaint, how long it would take to get it investigated, and how long until she'd finally get heard by a court.

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So that is unusual.

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So we are thrilled to be here.

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We are thrilled to be presenting her arguments to somebody

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at least for the first time, is outside the GAO.

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And I would note in this regard that the Personnel Appeals Board is supposed to be independent, but the fact of the matter is those judges are also appointed by the Comptroller General.

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The very people who were involved in the discrimination issues underlined this case.

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Let me cut to the court.

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You realize under McDonnell Douglas, you have to establish a causal connection between

[00:03:27] Speaker 02:
the protected activity and the adverse action.

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In this place, the events cited in the appeal took place after the decision to transfer Ms.

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Foley-Hinnon to the ASM.

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How do you deal with that?

[00:03:46] Speaker 03:
Well, in fact, Your Honor, they didn't all take place after.

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Some of them were before.

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And GAO consistently relies on the statement

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There was some disagreement at the PAB, the Personnel Appeals Board.

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It split 2-2 on this fact.

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Two of the judges found that the definitive date for the reassignment was October of 2001, whereas the other two felt it was April of 2001.

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So already we have a divide there.

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Assume that April was preliminary.

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The Supreme Court has said in Clark County

[00:04:25] Speaker 02:
that employers need not suspend previously planned transfers upon discovering a Title VII suit has been filed and their proceedings along the lines previously contemplated, although not yet definitely determined, is no evidence whatsoever of causality.

[00:04:45] Speaker 03:
First of all, Your Honor, I would respectfully note, I don't think that was the actual holding.

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I think that was more along the lines of dictum.

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Because the issue in that case was the complainant, the plaintiff, only had proximity in time.

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She had nothing else to support a finding or an inference of retaliation.

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That isn't the case here, because Ms.

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Foley-Hinnan had not only the nexus in time, but she also had proof.

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She had contradicted all of the reasons that the agency kept coming up with to explain away what they did to her.

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That is distinctly different than Braden

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And that was not the holding of Breeden.

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That was simply an aside that wasn't necessarily material to the case.

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However, there was conduct that protected activity before April.

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In fact, I have pointed that out for you in our reply brief, taking it back to the sworn testimony.

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Denver was a very small office.

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There were only 70 employees in that office.

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In 2000, two of Mrs. Foley Hinnin's co-workers, women, had alleged sex discrimination.

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That's what they had filed.

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And she was a witness in their cases.

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Was she a witness or was she a potential witness?

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She was in fact a witness because she testified to the EEOC investigator.

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She testified in one deposition.

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She spoke to the attorneys in both cases multiple times.

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And she also spoke to the GAO attorneys.

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before the hearing that ultimately was held in Vargas or in Davis.

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She actually flew here for that.

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And it doesn't matter for purposes of the statute, whether or not she finally testified at a hearing.

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The fact that she spoke up and expressed her concerns about her supervisors meant that she was entitled to protection under the statute.

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You don't have to follow through.

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You don't even have to file your own claim.

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If you oppose illegal discrimination at any point in time, you are entitled to the protection of the statute.

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So your honor,

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She did have activity immediately before, even if you want to assume the April date is binding.

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And that's when Mr. Brew made his decision.

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She had activity leading up to that.

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And Mr. Brew knew about it.

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Although he claimed in his deposition some 10 years later, he had no idea about these cases or her involvement.

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I've produced for you a copy of an email that copied him saying she was a witness in those cases.

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And let's remember.

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That would be, I can find that real quickly, I think, Your Honor.

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Let me come up here and I'll continue to speak while I look for that.

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So we have to remember that there were only 70 employees and Mr. Brew had been in charge of that office until 97.

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And then he let Mr. Solomon take over.

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And Mr. Solomon was, in fact, the person who

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was specifically named in both women's cases.

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But Mr. Grew was also implicated.

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Whether or not they named him, that's a different issue.

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But I'm not sure I can find that email.

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If it's going to take too much out of your time, you can do it on reply.

[00:08:08] Speaker 03:
I will do that, Your Honor.

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I'll make an edit of that.

[00:08:11] Speaker 03:
Please.

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This record is voluminous because it's been going on for so long.

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So we have the protected activity.

[00:08:21] Speaker 03:
We show two different adverse actions.

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The first one being the reassignment to the ASM group working for the same people that had previously subjected her to a hostile work environment.

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And that is retaliatory in and of itself.

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The second retaliatory action was the denial of the detail when she said repeatedly, I can't go to work for these people.

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I can't do it.

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Not only did they create a hostile work environment, but I am morally opposed to weapons work.

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And you have known that for my entire 20-year career with this agency.

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For them to put her in the one group that she said she could not work for simply smacks of retaliation.

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So there are two distinct actions there.

[00:09:05] Speaker 03:
They could have fixed this at any point in time.

[00:09:08] Speaker 03:
Why not, if they truly only could put her into ASM, why not let her go in there and do environmental work?

[00:09:15] Speaker 03:
Why not let her do some special assignment?

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Why not have her report to someone back here?

[00:09:20] Speaker 03:
That happens all the time.

[00:09:21] Speaker 03:
Paid details are an excellent way to allow employees to work outside their specific work group.

[00:09:27] Speaker 03:
They wouldn't do that either.

[00:09:29] Speaker 02:
My recollection is that she offered to work for free without pay rather than work on weapons work.

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That shows the extent to how severely she felt she could not work in ASM.

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But that does not change the fact that as a federal employee, she could have had a paid detail.

[00:09:48] Speaker 03:
Whereas, and she even arranged it.

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They told her all these things she had to do to get the detail.

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Then at the last minute, they said, you got to get it paid.

[00:09:56] Speaker 03:
She said, OK, I'll get it paid.

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And she did.

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And they still wouldn't let her do it.

[00:10:00] Speaker 03:
If she had been allowed to keep it.

[00:10:02] Speaker 01:
I'm sorry.

[00:10:03] Speaker 01:
Isn't there evidence to support the proposition that GAO

[00:10:09] Speaker 01:
thinking of itself as more legislative than executive basically doesn't do these, what's the term?

[00:10:19] Speaker 01:
The details to the executive branch because it doesn't want to mix up clients or investigative subjects with its own personnel.

[00:10:33] Speaker 03:
I agree that at some point, Mr. Dodaro and Mr. Walker articulated that concern.

[00:10:40] Speaker 03:
But there was never anything in writing saying that was a concern.

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And if it truly were a concern, they wouldn't hire people who came from other branches because they might have worked on something that could be implicated by GAF.

[00:10:52] Speaker 03:
I mean, that's easily remedied.

[00:10:53] Speaker 03:
I doubt the sincerity of it, but the inescapable fact is they did not articulate this policy until they were talking about Ms.

[00:11:01] Speaker 03:
Patricia Foley-Hinnit.

[00:11:02] Speaker 03:
until they made the very decision to create this policy.

[00:11:06] Speaker 01:
But am I remembering right that you, just correct me, that you don't have evidence that with possibly one exception, they just haven't done this on other occasions either?

[00:11:17] Speaker 03:
We don't have any evidence one way or the other, because Mr. Brew, the discriminating official, was the one in charge of providing the evidence in response to discovery.

[00:11:26] Speaker 01:
So if you look at, I think, tell me if I'm wrong, the email you're referring to is at appendix 1310.

[00:11:33] Speaker 01:
If that's the right email, can you say what you wanted to say about it?

[00:11:43] Speaker 01:
OK.

[00:11:43] Speaker 01:
Yes, Your Honor.

[00:11:44] Speaker 01:
Is that the one you were referring to?

[00:11:46] Speaker 03:
Yes.

[00:11:47] Speaker 03:
Mr. Brew was copied on that one.

[00:11:48] Speaker 03:
That is the one.

[00:11:49] Speaker 03:
Thank you.

[00:11:53] Speaker 01:
Yes.

[00:11:53] Speaker 01:
What did you want to tell us about that?

[00:11:55] Speaker 01:
I'm sorry.

[00:11:55] Speaker 03:
Oh, just that this proves that Mr. Brew knew for a fact that these cases with Ms.

[00:12:01] Speaker 03:
Davis and Ms.

[00:12:01] Speaker 03:
Vargas

[00:12:02] Speaker 03:
were going on already.

[00:12:03] Speaker 03:
The cases were filed in 2000 and yet he came forward and said, Oh, I had no idea that these cases were going on or that Ms.

[00:12:11] Speaker 03:
Follahanan was involved in them.

[00:12:13] Speaker 03:
But she is named right under him as one of the people who's going to be called.

[00:12:19] Speaker 03:
So I just, his reason was pretext.

[00:12:22] Speaker 03:
You know, he did have that knowledge.

[00:12:24] Speaker 03:
His claim that he didn't have any knowledge is wrong.

[00:12:27] Speaker 03:
This is at least one piece.

[00:12:28] Speaker 02:
Is that everybody in the office?

[00:12:30] Speaker 03:
No, no, it is not your honor.

[00:12:32] Speaker 02:
You said there, how many people?

[00:12:34] Speaker 03:
There's a total of 70 people in the den.

[00:12:36] Speaker 02:
Seven zero.

[00:12:37] Speaker 03:
Yes.

[00:12:38] Speaker 01:
Okay.

[00:12:39] Speaker 01:
And can I just ask on this email, is there, I'm not able to read it fast enough.

[00:12:45] Speaker 01:
Um, is there something here that indicates that she's going to come and testify for the complainant as opposed to maybe for the government?

[00:12:55] Speaker 01:
I use government here as a shorthand.

[00:12:57] Speaker 01:
I don't want to mix up branches.

[00:12:59] Speaker 03:
No, and I appreciate that.

[00:13:00] Speaker 03:
I think part of the problem was for even Ms.

[00:13:02] Speaker 03:
Follahan, and it was hard for her to know whose side she was being called on.

[00:13:06] Speaker 02:
What says notification to GAO's witnesses?

[00:13:09] Speaker 03:
However, Your Honor, GAO witnesses could mean, and I suspect it does, that GAO is obliged to produce everybody who is an employee.

[00:13:18] Speaker 01:
Right, but if this email is crucial to the inference that Mr. Bru knew that she was in some way supporting a discrimination claim, don't you have to find some indication in this email that on the assumption he read it, he would take that away from it?

[00:13:37] Speaker 03:
This isn't the linchpin, Your Honor.

[00:13:39] Speaker 03:
This was just to rebut his claim that he didn't even know these cases were going on or that she was even a witness.

[00:13:45] Speaker 03:
She had been given statements for two years prior to this to support both women specifically attacked.

[00:13:53] Speaker 02:
Your argument that this was to witnesses for both sides seems to be rebutted by the paragraph that begins, because petitioners council will present petitioners witnesses first, I do not yet know the specific time or date of your testimony.

[00:14:13] Speaker 03:
But your honor, that is still consistent because if Ms.

[00:14:17] Speaker 03:
Foley-Hannon was called by the petitioner, he's just saying he can't predict when she's going to testify.

[00:14:24] Speaker 03:
All I know for sure is in the EEOC process, if Department of Energy is the defending party, it is obliged to produce every employee, whether it's for the plaintiff or the defendant.

[00:14:36] Speaker 03:
They are obliged to produce them.

[00:14:37] Speaker 03:
In any event, the very day that she went for the hearing,

[00:14:42] Speaker 03:
She said, I'm going to sink my career if I testify.

[00:14:45] Speaker 03:
And she told that to the EEO manager and Jesse Hoskins, who worked with Mr. Brew.

[00:14:51] Speaker 03:
She told them, sobbing in tears.

[00:14:52] Speaker 03:
You're welcome, Your Honor.

[00:14:54] Speaker 03:
OK.

[00:14:54] Speaker 03:
Thank you, Your Honor.

[00:14:55] Speaker 03:
She sobbed in their offices that day, saying, I don't have anything good to say about them.

[00:15:01] Speaker 03:
This is going to ruin my career.

[00:15:02] Speaker 03:
Please don't make me testify.

[00:15:04] Speaker 03:
That's what happened.

[00:15:05] Speaker 03:
And this is how she was treated for it.

[00:15:07] Speaker 03:
I would like to reserve the amount of time I have left, Your Honor.

[00:15:10] Speaker 02:
Thank you.

[00:15:22] Speaker 00:
May it please the court.

[00:15:28] Speaker 00:
Summary judgment in GAO's favor should be affirmed because no reasonable fact finder could conclude that GAO retaliated against Ms.

[00:15:34] Speaker 00:
Foley-Hinnan when it assigned her to the ASM team and when it permitted her to go and work at the State Department but asked her to use the mechanism

[00:15:45] Speaker 00:
of leave without pay and a direct appointment through the State Department rather than detailing her there as a legislative branch GAO employee working at an agency that GAO would ultimately audit.

[00:15:56] Speaker 00:
Now, the first thing I want to address relates to the claim relating to the assignment to ASM.

[00:16:04] Speaker 02:
In that circumstance, then the State Department would become the

[00:16:10] Speaker 02:
the paying entity?

[00:16:12] Speaker 00:
Well, it would depend on the type of detail.

[00:16:15] Speaker 00:
But what would not change would be that GAO would have one of its own employees serving in the person's capacity as a GAO employee working in an executive branch agency that GAO would do audit work on or potentially could do audit work on in the future.

[00:16:34] Speaker 00:
And when you really look back and

[00:16:36] Speaker 00:
But you're not answering my question.

[00:16:38] Speaker 00:
I'm sorry.

[00:16:39] Speaker 00:
Would it be paid or unpaid?

[00:16:41] Speaker 00:
It would depend on the type of detail.

[00:16:42] Speaker 00:
It's not a question of being paid.

[00:16:47] Speaker 00:
It's a question of being paid by whom.

[00:16:48] Speaker 00:
That was my question.

[00:16:50] Speaker 00:
A reimbursable detail would mean that Gia would continue to pay her salary, but would be reimbursed by the State Department.

[00:17:00] Speaker 00:
an unreversible detail would mean that GAO would be out of pocket.

[00:17:05] Speaker 00:
But regardless of who's going to pay, none of that addresses the conflict of interest concern, which was what drove GAO's decision.

[00:17:12] Speaker 02:
No, but it addresses my question.

[00:17:15] Speaker 00:
Thank you.

[00:17:16] Speaker 00:
Turning back briefly to the question of Mr. Brew, the assignment to ASM,

[00:17:22] Speaker 00:
What that claim really is driven by is, what did Mr. Brew know about Ms.

[00:17:29] Speaker 00:
Follihan's protected activity, and when did he know it?

[00:17:32] Speaker 00:
And opposing counsel has claimed that Mr. Brew has known all along about the participation in the Vargas and the Davis cases.

[00:17:41] Speaker 00:
But Ms.

[00:17:41] Speaker 00:
Follihan herself wasn't involved in the Vargas case until May of 2001.

[00:17:46] Speaker 00:
So she wasn't even involved in that case until over a month after

[00:17:51] Speaker 00:
Mr. Brew had indicated to her that she was being placed in ASM, and as Ms.

[00:17:57] Speaker 00:
Foley-Hinnan has stated, in her own petition before the Personnel Appeals Board, he told her in April of 2001 that that decision was firm.

[00:18:06] Speaker 00:
So as of April of 2001, by Ms.

[00:18:08] Speaker 00:
Foley-Hinnan's own admission,

[00:18:09] Speaker 00:
It was not a preliminary decision.

[00:18:11] Speaker 00:
It was a decision that was already made but wouldn't be realized for some time because Ms.

[00:18:18] Speaker 00:
Foley-Hinnan had to complete the work on the engagement that she was working on at the time.

[00:18:23] Speaker 02:
As I understand your opposing counsel's argument regarding that email, it seems to be that it indicates that he was testifying falsely when he, years later, said he didn't

[00:18:38] Speaker 02:
even know she was involved in the cases?

[00:18:40] Speaker 00:
Well, I certainly am not aware of any testimony where he stated that in April of 2001, he never knew at any time.

[00:18:51] Speaker 00:
My understanding of his testimony is that when I was making these decisions, no, I didn't know about them.

[00:18:56] Speaker 02:
Where is that in the record?

[00:18:59] Speaker 00:
I'm afraid I can't give you a direct site to it.

[00:19:03] Speaker 00:
I can look for it after and provide it to the court.

[00:19:08] Speaker 00:
What's clear is that Mr. Brew couldn't have known about the Vargas case in April when he was making that decision.

[00:19:18] Speaker 00:
Now, the only evidence that the opposing counsel has given the court that he knew about the Davis case is the email about Vargas.

[00:19:28] Speaker 00:
There's no comparable email about the Davis case.

[00:19:31] Speaker 00:
And Mr. Brew has at all times said that he had no knowledge of Ms.

[00:19:35] Speaker 00:
Follahan's participation in that case.

[00:19:37] Speaker 00:
And I'll note that that case has absolutely nothing to do with Mr. Grew.

[00:19:41] Speaker 00:
His name is not mentioned anywhere in the petitions that were filed in that case or in the Personnel Appeals Board decision in that case, in which his name is never mentioned and which is part of the record.

[00:19:54] Speaker 00:
Now, the other type of protected activity that Ms.

[00:19:57] Speaker 00:
Foley-Hinnan engaged in was she made various informal complaints about a hostile environment

[00:20:03] Speaker 00:
in the predecessor to the ASM team, which was called the Defense Acquisitions Group.

[00:20:08] Speaker 00:
And she began making these assertions in the early 90s when Mr. Brew was still a member of the Denver office.

[00:20:16] Speaker 00:
And what Ms.

[00:20:17] Speaker 00:
Follahan has testified is that every time she had a conversation with Mr. Brew, she would bring those same concerns up over and over again.

[00:20:25] Speaker 00:
What else is undisputed in the record is that Mr. Brew left the Denver office in 1997

[00:20:30] Speaker 00:
moved to GAO headquarters in a completely different capacity.

[00:20:34] Speaker 00:
And then in 2001, he's making a determination on where to place Ms.

[00:20:40] Speaker 00:
Foley-Hinnan when GAO has been totally reorganized and the DA group, Defense Acquisitions Group, no longer exists.

[00:20:47] Speaker 00:
And we have a new organizational team with new senior executives called the ASM team.

[00:20:55] Speaker 00:
And what's very important is that in 1997, right before Mr. Brew left the Denver office,

[00:21:01] Speaker 00:
And when Ms.

[00:21:01] Speaker 00:
Foley-Hinnan's complaints about these informal complaints were fresh, he took her out of the DA group and let her do international work.

[00:21:11] Speaker 00:
And what Ms.

[00:21:12] Speaker 00:
Foley-Hinnan would have the court believe is that Mr. Brewer would be the same actor who took her out of what she claimed to be a retaliatory hostile environment in 1997, waited four and a half years when he rarely had opportunity to speak or interact with Ms.

[00:21:30] Speaker 00:
Foley-Hinnan.

[00:21:31] Speaker 00:
where there is not one shred of evidence that Ms.

[00:21:33] Speaker 00:
Foley-Hinnan had any conversation with him in the few months leading up to that April placement decision, and then would suddenly decide, well, now I'm going to retaliate against you based solely on my knowledge of these stale conversations about a retaliatory hostile environment that I took you out of to begin with.

[00:21:54] Speaker 00:
And that is the same act of presumption, that even at the summary judgment stage, when, for example, the same actor

[00:22:01] Speaker 00:
hires and then later fires a person and that person has some sort of protected characteristic, there's a strong presumption of no discrimination.

[00:22:12] Speaker 00:
Now, another point that I would like to get to relates to the detail claim.

[00:22:20] Speaker 00:
And when you really sit back and look at what was happening here, it's clear that what GAO was doing was assisting and going out of its way to assist Ms.

[00:22:29] Speaker 00:
Foley-Hinnon, not retaliate against her.

[00:22:31] Speaker 00:
I have to give credit to opposing counsel and Ms.

[00:22:35] Speaker 00:
Foley-Hinnan because they have presented this all along as if there is some kind of freestanding right for federal employees who don't like the work that they're doing at their own agency to be able to simply move on to another federal agency while maintaining their own job at the other agency under the aegis of a detail.

[00:22:56] Speaker 00:
And what happened here was that Ms.

[00:22:58] Speaker 00:
Foley-Hinnan

[00:22:59] Speaker 00:
came to GAO and said that she didn't want to do this work in ASM and let her go and as a GAO employee work in executive branch agency even though there's a conflict of interest there.

[00:23:11] Speaker 00:
And if GAO were truly motivated to retaliate, it could have said, no, that would have ended it.

[00:23:18] Speaker 00:
That would be the simple response if GAO wanted to retaliate against her, but that's not what GAO did.

[00:23:24] Speaker 00:
David Walker, the Comptroller General, Gene DeDaro, who is now the Comptroller General, and the Executive Committee went out of their way to try to accommodate Ms.

[00:23:31] Speaker 00:
Foley-Hinnit.

[00:23:32] Speaker 00:
They came up with the idea of, well, you know what?

[00:23:34] Speaker 00:
We have this concern about having our employees serve in details to executive branch agencies.

[00:23:42] Speaker 00:
So to mitigate against that concern, we will let you take leave without pay.

[00:23:49] Speaker 00:
We'll let you go and work in as a temporary

[00:23:52] Speaker 00:
direct appointee of the state department, and then when the year is over, come back off of Leave Without Pay, and you can continue with your job at GAO.

[00:24:02] Speaker 00:
This is unquestionably an act of assistance.

[00:24:04] Speaker 02:
That's why I asked that question at the beginning.

[00:24:06] Speaker 02:
I had an impression that Leave Without Pay meant she wasn't being paid, but she was... She wasn't being paid by GAO, and that was the distinction between GAO.

[00:24:16] Speaker 00:
But she was being paid by the state.

[00:24:18] Speaker 00:
Yes, she would be paid by the state, and she was paid by the state at the same level that she was making at GAO.

[00:24:22] Speaker 00:
Another thing that opposing counsel stated about the detail that I think must be corrected is that she's testified that GAO never articulated the reasons

[00:24:46] Speaker 00:
for why it didn't want a detail at the executive branch at something that was somehow manufactured 10 years later.

[00:24:54] Speaker 00:
And the fact of the matter is that on January 7th of 2002, within several days of the first communication of the denial of the detail, Mr. Walker sent Ms.

[00:25:05] Speaker 00:
Foley in an email that specifically referenced that.

[00:25:09] Speaker 00:
And you can find that in the record in the appendix pages 1027 and 1028.

[00:25:14] Speaker 00:
And in particular, it's the very last line on page 1028 where he specifically references the fact that by having you not take a detail, this would allow you to be there and not have a GAO employee working in an executive branch and in a GAO capacity.

[00:25:32] Speaker 00:
So he clearly articulated that at the time, and he's never come off of that.

[00:25:37] Speaker 00:
In fact, he's testified very clearly that during his tenure as Comptroller General of the United

[00:25:43] Speaker 00:
he never authorized anyone to go and do an executive branch detail.

[00:25:48] Speaker 00:
And Mr. Dodaro confirmed that.

[00:25:51] Speaker 00:
To his knowledge, no, no one had ever done that.

[00:25:57] Speaker 00:
Now another, and I apologize for jumping back to another claim, but as to the assignment claim, there's one other issue that I wanted to raise, and that relates to the issue of being assigned to doing

[00:26:11] Speaker 00:
military work as opposed to civilian work.

[00:26:15] Speaker 00:
And why couldn't GAO just accommodate her in that regard?

[00:26:20] Speaker 00:
And first, what Mr. Brew has explained was that he had to make a determination based on what GAO's organizational needs were.

[00:26:28] Speaker 00:
This wasn't simply a process whereby if there's space in a team and an employee wants to be in that team, that GAO is going to accommodate that preference.

[00:26:39] Speaker 00:
What's undisputed is that organizational needs came first.

[00:26:42] Speaker 00:
An employee's skills and abilities was the second thing that he considered.

[00:26:45] Speaker 00:
And lastly, if he could accommodate it, he would look at the preferences.

[00:26:49] Speaker 00:
And it's undisputed that the ASM team needed staff.

[00:26:52] Speaker 00:
And as Ms.

[00:26:53] Speaker 00:
Floyd-Hinnan has admitted that she was told that there was no civilian work at the time available to her to perform.

[00:27:03] Speaker 00:
That's GAO's legitimate non-discriminatory reason.

[00:27:06] Speaker 00:
They have never produced a shred of evidence undercutting that there actually was other work that she could have done at the time.

[00:27:13] Speaker 00:
And I don't further add that GAO work is not something where you go and you're doing one type of work and that work is static the entire time in your career.

[00:27:24] Speaker 00:
If you're the ASM team, you're going to be working under a broad umbrella of different types of work.

[00:27:29] Speaker 00:
And there might be different types of work that come up at different times.

[00:27:33] Speaker 00:
But what is undisputed in the record is at the time that she was joining ASM, that's the kind of work that GAO had available to her.

[00:27:41] Speaker 00:
And Ms.

[00:27:43] Speaker 00:
Folohena continued to oppose and try to do different kinds of work.

[00:27:48] Speaker 00:
And she was told at every step of the way that, look, there's another preference survey coming up.

[00:27:54] Speaker 00:
If you need to, you can change teams.

[00:27:56] Speaker 00:
This is, you know, we're talking at most a year, and if you don't appreciate this, then certainly you'll have an opportunity to change that down the road.

[00:28:03] Speaker 00:
This was not a life sentence of military work.

[00:28:07] Speaker 00:
And in fact, Ms.

[00:28:08] Speaker 00:
Follahan did pursue other types of work, and GAO ultimately accommodated that request by permitting her to go and work at the State Department.

[00:28:17] Speaker 01:
Can I just ask you, can you explain just how long this took to get to us?

[00:28:24] Speaker 00:
Certainly, certainly.

[00:28:26] Speaker 00:
And the first thing I'll point out is that at the PAB level, once the case was filed as a petition at the Personnel Appeals Board, went through discovery.

[00:28:37] Speaker 00:
And there was a lengthy period of discovery, and there was a lengthy period of time, because there were a large number of claims.

[00:28:45] Speaker 00:
The number of claims that are here on appeal are far smaller than the number of claims that were initially raised.

[00:28:50] Speaker 00:
But once it was at the lawsuit stage, things

[00:28:54] Speaker 00:
proceeded at what I would describe as a usual pace at the personnel... Well, usual is not entirely... And certainly, I believe the petition was filed in 2011, and by 2013, I believe, was when the initial decision was issued.

[00:29:09] Speaker 00:
So that's not an unusually lengthy period of time.

[00:29:11] Speaker 01:
On this little procedural peculiarity of how we came to something that's either a 2-2 or a 3-2, is it normal for

[00:29:24] Speaker 01:
one of the five members of the board to essentially conduct the trial and then not participate in the other four judges review of his or her initial decision.

[00:29:39] Speaker 00:
You know, I can't state that I have perfect knowledge of how the board has been operating, you know, this board has been operating since 1980.

[00:29:47] Speaker 00:
And I went back and looked through decisions to see what I could find about that.

[00:29:54] Speaker 00:
And frankly, it's oftentimes hard to tell from how a decision was written.

[00:30:01] Speaker 00:
I mean, it's always the case that there's an initial decision written by one administrative judge, and that if it's appealed, that- And that's the one who actually sees the witnesses live?

[00:30:09] Speaker 00:
That's the one who, yes, who sees the witnesses, who looks at the party's pleadings, looks at the record that's created at summary judgment, and that

[00:30:19] Speaker 00:
the remaining judges then rule on it.

[00:30:21] Speaker 00:
But what I couldn't tell in all cases by looking at how those decisions were written was exactly what the participation level was.

[00:30:29] Speaker 00:
But there is a board regulation that discusses this.

[00:30:33] Speaker 00:
It's 4 CFR, I believe 27.1.

[00:30:35] Speaker 00:
And what it says is that a quorum can act for the board.

[00:30:41] Speaker 00:
And here, there clearly was a quorum.

[00:30:44] Speaker 00:
There were four judges who actively participated in the decision.

[00:30:48] Speaker 00:
It was a 2-2 split.

[00:30:50] Speaker 00:
And given that the fifth member of the board had already ruled in GAO's favor, that creates a 3-2 decision.

[00:31:02] Speaker 02:
Even if it was 2-2, without participation, a tie leaves a meeting.

[00:31:08] Speaker 00:
Exactly.

[00:31:08] Speaker 00:
And we saw that recently in the Supreme Court Friedrich's case, I believe.

[00:31:12] Speaker 00:
You need to wrap up now.

[00:31:14] Speaker 00:
Unless there are no more questions, I humbly request that summary judgment be affirmed in GAO's favor.

[00:31:19] Speaker 00:
Thank you.

[00:31:26] Speaker 03:
Ms.

[00:31:27] Speaker 03:
Williams?

[00:31:27] Speaker 03:
Thank you, Your Honor.

[00:31:29] Speaker 03:
First, I would like to address this two-two tie issue.

[00:31:33] Speaker 03:
The board could have articulated a rule to break a tie the way the MSPB did.

[00:31:38] Speaker 03:
And in fact, I appreciate the fact GAO Council pointed this out, that the MSPB has a rule that says if we can't reach a majority, this is how we're going to break a tie.

[00:31:48] Speaker 03:
The MSPB could do it.

[00:31:50] Speaker 03:
The board never has.

[00:31:51] Speaker 03:
Instead, it's trying to backdraft and create something entirely at its whim in this one case.

[00:31:59] Speaker 03:
It should have presented a rule.

[00:32:01] Speaker 03:
Furthermore, it should have given the administrative judge the opportunity to participate in the decision, because all four of the other panel members... Should, because you think so?

[00:32:11] Speaker 03:
No, Your Honor, because they didn't agree with his conclusions.

[00:32:15] Speaker 03:
And if they had pointed out to him his erroneous conclusions and the inferences that he gave... No, no, I mean like, should, is there some law, or should, because you just think so?

[00:32:26] Speaker 03:
No, well I've seen some cases where the complaint was that the

[00:32:30] Speaker 03:
Administrative judge who issued the summary judgment was the one who went back and did participate with the others.

[00:32:36] Speaker 03:
And in that case, frankly too, they also complained it was a denial of due process.

[00:32:40] Speaker 03:
But at least here, I think this judge would have been better educated about the facts and not made the inferences.

[00:32:46] Speaker 03:
I do want to point out that with respect to- Your time's up, so you need to wrap up.

[00:32:52] Speaker 03:
Okay.

[00:32:52] Speaker 03:
Thank you, your honor.

[00:32:54] Speaker 03:
everything the government is arguing here, the same actor inference that Brew was the same actor.

[00:33:00] Speaker 03:
They're not entitled to that presumption at the summary judgment stage.

[00:33:04] Speaker 03:
They are not.

[00:33:04] Speaker 03:
And because the board reached that far to interpret the facts in their favor, that means you shouldn't grant it summary judgment.

[00:33:12] Speaker 03:
The same thing is true with respect to the goodwill inference.

[00:33:16] Speaker 03:
Can't we infer Mr. Brew had goodwill or that the board had goodwill because they let her take the leave without pay?

[00:33:23] Speaker 03:
No.

[00:33:24] Speaker 03:
No, anything that would dissuade someone from pursuing a complaint can be considered retaliatory action.

[00:33:30] Speaker 03:
Leave without pay meant, yes, she was getting a paycheck, but she didn't have tenure in her position for that time.

[00:33:37] Speaker 03:
She did not get her health benefits paid.

[00:33:39] Speaker 03:
She didn't get any of the benefits, and she wasn't technically on the rolls or accruing any benefits for that entire year, which is critical, for example, in a RIF.

[00:33:48] Speaker 03:
So it was an adverse action.

[00:33:51] Speaker 03:
We respectfully request that you agree

[00:33:53] Speaker 03:
find in her favor and at least give her the hearing that she has been seeking for 14 years.

[00:34:00] Speaker 02:
Thank you.