[00:00:03] Speaker 02:
May I please the court?

[00:00:05] Speaker 02:
My name's Nolan Lim.

[00:00:06] Speaker 02:
I represent the appellant in this matter, Don Louie, in the case Lewis v. DeJoy.

[00:00:13] Speaker 02:
Your Honor, and I'd like to reserve three minutes of time for a rebuttal.

[00:00:17] Speaker 02:
Thank you.

[00:00:20] Speaker 02:
We believe the District Court erred in deciding key issues of fact and law in this case.

[00:00:26] Speaker 02:
First, the most glaring issue that we mentioned in our briefing, but if your honors have more questions about it, we believe the district court applied the disparate treatment analysis incorrectly.

[00:00:37] Speaker 02:
Miss Lou Lee made it clear that she was replaced by three individuals, not of her protected class.

[00:00:44] Speaker 02:
And the district court argued that those individuals needed to be similarly situated.

[00:00:50] Speaker 02:
The Sixth Circuit and Vincent versus Breuder says otherwise.

[00:00:53] Speaker 02:
There has been no case citation.

[00:00:57] Speaker 02:
rejecting Vincent versus Brewer, and it also is just inconsistent with the flexibility of Title VII.

[00:01:03] Speaker 02:
For example, Reeves versus Sanderson is the seminal casing falseness of a, falsity of a, that's the basis of an adverse action, can infer discrimination.

[00:01:15] Speaker 02:
Reeves is also a replacement case that involved an individual where there was basically I think he had bad record keeping and then he was replaced by younger employees.

[00:01:25] Speaker 02:
But Reeves is applied to every case for Title VII.

[00:01:29] Speaker 02:
It's not just applied to replacement cases.

[00:01:31] Speaker 02:
It's not just applied to cases involving discipline.

[00:01:37] Speaker 02:
Reeves applies to proving pretext.

[00:01:40] Speaker 02:
And that's what this case is about.

[00:01:42] Speaker 02:
There is so much evidence of pretext in this case.

[00:01:45] Speaker 02:
We have the actual supervisor of Ms.

[00:01:48] Speaker 02:
Louie, Charles Roberts.

[00:01:51] Speaker 02:
going to, wrote a declaration on her behalf, stating, look, before these alleged independent decision makers, Mr. Carter Clark and Ms.

[00:02:01] Speaker 02:
Karen Bacon decided her downgrade after she's had an unblemished record at the USPS, that the decision was made already.

[00:02:12] Speaker 02:
And he opposed it.

[00:02:14] Speaker 02:
And then when he opposed it, they took him out of her chain of command, and then they put in place two other employees who didn't, and in the record, we don't even see any independent investigation by them.

[00:02:25] Speaker 02:
I mean, how could there be?

[00:02:26] Speaker 02:
If you look at the Notice of Proposed Downgrade, all of those facts that are in that Notice of Proposed Downgrade, including allegedly throwing packages,

[00:02:35] Speaker 02:
including investigating sexual harassment, including working with a union employee to give him his day off.

[00:02:42] Speaker 02:
Those were all facts gathered before Carter Clark.

[00:02:46] Speaker 02:
and miss karen bacon even had an opera uh... got the case so clearly there was no you know i cannot we could i can understand that the u s p s is raising or de joy's reasoning if for example this is a situation where okay we're going to take you out mister roberts at the decision-making we're just going to pass this on to carter clark and karen bacon karen bacon karen clark you guys were not giving you anything

[00:03:11] Speaker 02:
we're just going to tell you to investigate it, start over from scratch.

[00:03:15] Speaker 02:
That's not what happened in this case.

[00:03:17] Speaker 02:
You know, there was also an error regarding the protected activities in this case.

[00:03:22] Speaker 02:
The Supreme Court has made it clear in Burlington Northern versus Santa Fe, and this court has followed that direction, that

[00:03:31] Speaker 02:
adverse actions for retaliation case simply must dissuade somebody from making a complaint again.

[00:03:37] Speaker 02:
It's not a tangible employment action analysis in retaliation case.

[00:03:42] Speaker 02:
It is for disparate treatment case, and that's why we didn't argue that the proposed discipline was disparate treatment, but we argued it was adverse action for retaliation.

[00:03:53] Speaker 02:
And finally, with regards to Ms.

[00:03:55] Speaker 02:
Louie's hostile work environment case,

[00:03:57] Speaker 02:
There's just so much evidence of hostility, the totality of the circumstances in this case.

[00:04:02] Speaker 04:
And so that claim, was that administratively exhausted?

[00:04:06] Speaker 02:
In our opinion, Your Honor, it was not.

[00:04:08] Speaker 02:
I mean, in our opinion, we'd, yeah, in our opinion, the- Your answer should be it's exhausted.

[00:04:14] Speaker 02:
Yeah, we exhausted administrative revenues.

[00:04:17] Speaker 02:
So my next question is, tell me how.

[00:04:20] Speaker 02:
And here's the reason why.

[00:04:24] Speaker 02:
all of the actions we mentioned, including the hostile statements based on race, the hostility from the subordinate staff and the management condoning it.

[00:04:33] Speaker 02:
You know, the funny thing is, I don't think any one of those would even be considered a hostile work environment in and of themselves.

[00:04:39] Speaker 02:
So it's kind of impractical to expect a federal employee to basically allege a hostile work environment every time they hear a bad thing about

[00:04:49] Speaker 02:
Korean people, or mind you, Ms.

[00:04:51] Speaker 02:
Louie's not even Korean.

[00:04:53] Speaker 02:
She's Chinese.

[00:04:54] Speaker 02:
But, and so it's like, how can you, how can, I don't think the spirit of that 45 day- You're arguing that it's not that it was exhausted, but the exhaustion should be excused?

[00:05:05] Speaker 02:
No, we're arguing that it's a continuing violation, but the totality of, the basically we argue, the reason it's supposed to be, it's exhausted is because Ms.

[00:05:15] Speaker 02:
Louie

[00:05:16] Speaker 02:
is combining all of those instances into one hostile work environment claim.

[00:05:23] Speaker 01:
Let's just talk about what actually happened.

[00:05:26] Speaker 01:
Sure.

[00:05:27] Speaker 01:
What did she do for her administrative exhaustion?

[00:05:31] Speaker 01:
She filed a complaint, the internal complaint that she was required to file.

[00:05:36] Speaker 01:
Correct.

[00:05:36] Speaker 01:
And at that moment in time, that was challenging both the demotion, and then you're saying,

[00:05:44] Speaker 01:
The demotion as part of a continuing violation of hostile work environment So treating the demotion both as a freestanding act and as part of an overall course of conduct Is that what your correct your honor and the district court rejected that sort of saying that the the demotion is sort of divorced from the rest of the hostile work environment and because you only and sort of I as I understand disaggregated them for the purposes of finding

[00:06:13] Speaker 01:
exhaustion.

[00:06:14] Speaker 01:
And is that the error that you are challenging?

[00:06:16] Speaker 02:
We're alleging that was an error because if you look in the record, there's a copy of Ms.

[00:06:20] Speaker 02:
Louie's complaint and she mentions all these adverse actions.

[00:06:23] Speaker 02:
And I'm not saying the complaint in court, I'm talking about the complaint made internally with the EEOC.

[00:06:28] Speaker 03:
And you're saying, if I understand it, the fact that the hostile work environment continued thereafter doesn't mean she has to file a new complaint.

[00:06:37] Speaker 03:
She's already raised, she in effect has met the exhaustion requirement by the initial complaint.

[00:06:44] Speaker 02:
I think that's precisely right, Your Honor, because especially how would a lay person even think to know to actually include additional stuff after they've filed an additional complaint?

[00:06:56] Speaker 02:
But yes, it's all just one hostile work environment.

[00:06:59] Speaker 02:
The USPS obviously is arguing these are all discrete acts.

[00:07:02] Speaker 02:
Every little comment's a discrete act.

[00:07:04] Speaker 02:
Every little adverse action's a discrete act.

[00:07:06] Speaker 02:
But the thing is, even discrete acts

[00:07:09] Speaker 02:
aggregated together in a case, you know that we recently just argued a year ago Edwards for you versus joy That was another case and we mentioned in our applied belief where there was discrete acts but that in congregation it was still a hostile or in combination Congregation that was still considered a hostile work environment in my and if I understand you correctly part of your argument on the exhaustion issue is that

[00:07:36] Speaker 01:
she wouldn't really have a meritorious hostile work environment claim until she was demoted because that was sort of the, it was taking all the prior conduct plus the demotion in the aggregate that gave rise to a viable hostile work environment.

[00:07:53] Speaker 02:
Right, Your Honor.

[00:07:53] Speaker 02:
It was the culmination.

[00:07:55] Speaker 01:
It was the culmination.

[00:07:56] Speaker 01:
So let's say we agree with you on that.

[00:07:59] Speaker 01:
Why didn't you address the exhaustion issue in your opening brief?

[00:08:03] Speaker 01:
Or did you?

[00:08:04] Speaker 01:
Or if you didn't, then why should that be excused?

[00:08:07] Speaker 02:
I think the issue, Your Honor, is the case that defendant cited says that all of the claims that need to be addressed need to be addressed on the opening brief.

[00:08:19] Speaker 02:
We understand that.

[00:08:21] Speaker 02:
Our interpretation of a claim is the actual claims, retaliation, hostile work environment, disparate treatment.

[00:08:29] Speaker 02:
You know, I think it is up to interpretation what is a component of those claims that actually need to be separately argued in addition to it.

[00:08:38] Speaker 02:
And, you know, the irony is the defendant's arguing the same thing with regards to the complaint.

[00:08:42] Speaker 02:
I mean, you know, like that.

[00:08:44] Speaker 02:
One of the protected activities of her complaining to her supervisor was not made in the First Amendment complaint.

[00:08:53] Speaker 02:
Again, there is a line where how much notice do we have to give to the other side about what we're opposing.

[00:08:59] Speaker 02:
In our opinion, I couldn't find a case, truthfully, about directly addressing this issue.

[00:09:04] Speaker 02:
How much specificity regarding an individual claim needs to be made.

[00:09:09] Speaker 02:
I think that's at this course discretion to decide.

[00:09:11] Speaker 02:
We believe by mentioning hostile work environment and bringing it up on appeal allows us to argue for all the components underneath it.

[00:09:23] Speaker 02:
And finally, I think the last point I want to make, and then I'll reserve the rest of our time.

[00:09:32] Speaker 02:
This is one of those cases where

[00:09:36] Speaker 02:
Why these statutes exist?

[00:09:38] Speaker 02:
These statutes exist because you can be in an environment where everybody says you are wrong, that you are a bad supervisor, that you don't know what you're doing.

[00:09:47] Speaker 02:
Just like Brown v. Board of Education, where there's literally all these white folks, and then there's minority folks, and, you know, these folks aren't an island.

[00:09:56] Speaker 02:
This case basically is telling employers, look, employees, you're not in an island.

[00:10:05] Speaker 02:
There is a court system that at least allows you to get a broader perspective and not just the perspective of the people who are potentially discriminating against you.

[00:10:16] Speaker 02:
I'll reserve the rest of my time.

[00:10:17] Speaker 02:
Thank you.

[00:10:33] Speaker 00:
Good morning.

[00:10:35] Speaker 00:
Katie Fairchild, Assistant United States Attorney on behalf of the United States Postmaster General, Louis DeJoy.

[00:10:42] Speaker 00:
The district court's judgment should be affirmed because it correctly held that Dawn Louie did not meet her burden on summary judgment.

[00:10:49] Speaker 00:
Louie did not show that there was a genuine issue of material fact for every element on which she bears the burden for her three Title VII claims of disparate treatment, retaliation, and hostile work environment.

[00:11:01] Speaker 00:
I'm going to turn first to Louie's disparate treatment claim.

[00:11:05] Speaker 00:
While there are a number of grounds on which this panel may affirm, I want to focus this morning on the most straightforward path in which Louis concedes two points.

[00:11:14] Speaker 00:
First, Louis does not dispute that the Postal Service met its burden of production to state a legitimate, non-discriminatory reason for Louis' downgrade, thereby requiring Louis to show pretext through specific and substantial evidence.

[00:11:29] Speaker 00:
Karen Bacon's downgrade decision satisfies the Postal Service's burden of production.

[00:11:35] Speaker 00:
It provides two specifications or reasons for Louie's downgrade.

[00:11:40] Speaker 00:
Bacon, I'm going to focus on specification one because Bacon's decision indicates that it provides a sufficient reason standing alone for Louie's downgrade, which is all this court requires.

[00:11:51] Speaker 00:
For specification one, Bacon determined that Louis authorized paying a rural carrier less than he was entitled to under a national union contract, and this was a sufficient reason to warrant her downgrade.

[00:12:03] Speaker 04:
Wasn't her argument that she was actually trying to act to do something for him?

[00:12:09] Speaker 00:
No.

[00:12:10] Speaker 00:
Our argument is that she violated the contract by authorizing that he is paid less than he is entitled to.

[00:12:17] Speaker 00:
The contract indicated that if the rural carrier, Dennis Curl, worked on his relief day, he was entitled to more than his daily rate of pay.

[00:12:27] Speaker 00:
And as Bacon described, Louis authorized that Louis did not authorize that additional payment that she paid him less than he was entitled to.

[00:12:36] Speaker 00:
The union filed a grievance, and the administrative record reflects that the rural carrier received additional payment due to Louis' actions.

[00:12:45] Speaker 00:
And that brings us to Louie's second concession.

[00:12:49] Speaker 00:
Louie doesn't dispute that she authorized that the rural carrier be paid the lesser amount.

[00:12:55] Speaker 00:
She argues that she shouldn't be disciplined because of it, but she concedes that she authorized it.

[00:13:02] Speaker 00:
But as Bacon describes in her decision, whether or not a rural carrier agrees or is coerced doesn't matter.

[00:13:12] Speaker 00:
Louie didn't have the authority to deviate from the national agreement in this way and reduce the pay at afforded Mr. Curl.

[00:13:20] Speaker 00:
She explained that Louie is responsible for adhering to the national agreement and her failure to do so exposes the postal service to liability.

[00:13:28] Speaker 00:
Louie has not brought forth competent evidence of postal service management of this payment scheme.

[00:13:34] Speaker 00:
And importantly, Louie concedes a critical point.

[00:13:38] Speaker 00:
Put in terms of the pretext showing that Louie must make to defeat summary judgment,

[00:13:43] Speaker 00:
Her argument does not show that Bacon did not honestly believe the reasons for specification one or that her explanation was not worthy of credence.

[00:13:52] Speaker 00:
And the district court's decision should be affirmed on this basis.

[00:13:56] Speaker 03:
At one point, the district court says that the

[00:14:10] Speaker 03:
that Louis needed to show four things.

[00:14:18] Speaker 03:
And the fourth was that the, according to Louis, was that the job went to someone outside the protected class.

[00:14:28] Speaker 03:
But the district court said,

[00:14:35] Speaker 03:
that Louise's replacement did not meet that fourth element because he had not been, quote, reported to have engaged in conduct similar to the conduct she was reported to have engaged in and that served as a basis for USPS's decision to downgrade her position.

[00:15:00] Speaker 03:
Was that right?

[00:15:02] Speaker 00:
Um, I believe your honor, you're referring to the prima the prima facet case.

[00:15:05] Speaker 00:
And yes, we do believe that is, um, correct that

[00:15:10] Speaker 00:
that Louis did not meet, did not satisfy a prima facie case, but this court doesn't even need to get to that question.

[00:15:16] Speaker 03:
Well, I understand your argument that we don't have to get to it, et cetera, but I just want to make sure.

[00:15:22] Speaker 03:
How can you say that that was right?

[00:15:24] Speaker 03:
That can't be right.

[00:15:27] Speaker 03:
So if I take literally what the district court said, it means if you're, let's say, a person of color,

[00:15:37] Speaker 03:
and you're demoted and replaced by someone who is white, that's not good enough.

[00:15:44] Speaker 03:
You have to show that the person who was white engaged in the same conduct that you're accused of having wrongly engaged in and yet was given that position.

[00:15:58] Speaker 03:
I don't know of any Supreme Court or other decision that says that's what you have to show.

[00:16:03] Speaker 00:
What we're saying is that it's not sufficient standing alone when someone is downgraded or demoted for cause to say what Louis has said, which is that the temporary replacement is outside my protected class.

[00:16:18] Speaker 00:
Louis hasn't shown any, hasn't provided any competent evidence

[00:16:22] Speaker 00:
for this point that would provide additional information other than the fact that after she was downgraded for cause, that someone who she perceives to be outside her protected class temporarily filled the position.

[00:16:37] Speaker 00:
To provide an inference on discrimination, she could perhaps have shown who the potential pool of candidates were to fill the temporary spot, or that the person who filled the temporary spot

[00:16:51] Speaker 00:
engaged in the same kind of conduct, but yet they were allowed to fill the position.

[00:16:55] Speaker 03:
Yeah, that is something she could have shown, but she's not required to show that, and that's what the district court said.

[00:17:03] Speaker 00:
So I will refer back to two cases cited in our brief in which this court has held that simply alleging

[00:17:13] Speaker 00:
that someone outside your protected class replaced you was not sufficient.

[00:17:18] Speaker 00:
And just give me one moment, I will see if I can recall those cases, I apologize.

[00:17:30] Speaker 03:
Well, I'm looking at another court you may have heard of called the Supreme Court of the United States.

[00:17:35] Speaker 03:
Yes, Your Honor.

[00:17:36] Speaker 03:
And in St.

[00:17:37] Speaker 03:
Mary's Honor Center versus Hicks, 509 U.S.

[00:17:43] Speaker 03:
502 at 506, a 1993 decision, which was a demotion suit, they say that what has to be shown as to the fourth element was

[00:17:59] Speaker 03:
quote, that the position remained open and was ultimately filled by a white man.

[00:18:04] Speaker 03:
In other words, a person who was not part of the protective class.

[00:18:11] Speaker 03:
But the district court here said, oh, it has to be someone who was not only not part of the protected class, but has to be someone who engaged in the same conduct and yet was still allowed to take that position.

[00:18:27] Speaker 03:
And I don't see anywhere in the Supreme Court decision remotely suggesting that.

[00:18:32] Speaker 00:
So, Your Honor, the two cases I were referring to was Moreno v. Cox, and that said,

[00:18:38] Speaker 00:
818F appendix 763 and this court also discussed it in Kiefer v. Tractor Supply.

[00:18:48] Speaker 04:
The first one is unpublished, is the second one?

[00:18:50] Speaker 04:
Yes, they are both unpublished, Your Honor.

[00:18:52] Speaker 04:
You know as well as I do, those are not precedent for us.

[00:18:56] Speaker 00:
Yes, Your Honor.

[00:18:57] Speaker 00:
I would distinguish the situation that you're talking about where a position remained open.

[00:19:02] Speaker 00:
Here, Louis was downgraded for cause and the rule that, yes, Your Honor, the rule that Louis appears to be asking for is that it necessarily raises an inference of discrimination if someone is downgraded for cause and isn't immediately, even temporarily,

[00:19:22] Speaker 00:
Replaced with someone inside of their protected class if there's additional information that that supports it for example that they aren't some that they aren't Similarly situated or someone engages in the same context.

[00:19:35] Speaker 01:
That's a different question, but here Taking a step back I mean I understand the crux of the theory of the case here for plaintiff is that I

[00:19:47] Speaker 01:
that all the complaints against the plaintiff were driven by racial animus.

[00:19:56] Speaker 01:
That racial animus is essentially but for cause of everything that happened.

[00:20:01] Speaker 01:
They wouldn't have complained.

[00:20:02] Speaker 01:
They wouldn't have filed the grievances.

[00:20:03] Speaker 01:
Nothing would have happened the way it did if not for the racial animus of

[00:20:11] Speaker 01:
various actors and what happened and that the ultimate decision makers, you know, it's a stamp of approval given by Bacon is tainted essentially by all that racial animus and I don't and that that's a essentially a quintessential factual dispute whether these things would have occurred but for racial animus and that then they don't have to necessarily show one way they could show

[00:20:39] Speaker 01:
that this is what happened is through comparators of similarly situated employees.

[00:20:46] Speaker 01:
But those may or may not exist in a given situation.

[00:20:48] Speaker 01:
That can't be the only way they prove such a claim.

[00:20:51] Speaker 01:
So do you have any case that's binding on us that suggests that they had to do more to create a genuine dispute of material fact on this or that they couldn't prevail on this theory of the case?

[00:21:08] Speaker 00:
If I'm understanding your honor's question, to answer in two parts, no, Louis did not have to show by comparators, but that's what she attempted to do.

[00:21:20] Speaker 00:
And our argument is that she didn't do it.

[00:21:23] Speaker 04:
Wait a minute, she attempted to do it.

[00:21:25] Speaker 04:
What she showed was that she was demoted and somebody else, white people, were put into that position.

[00:21:33] Speaker 04:
What more does she need to show?

[00:21:36] Speaker 00:
that she needs to show that that raises an inference of discrimination because either they- But what more does she need to show to satisfy criterion four?

[00:21:47] Speaker 04:
Because the district judge says criterion four was not satisfied.

[00:21:51] Speaker 04:
So it seems to me that it is satisfied.

[00:21:52] Speaker 04:
I mean, I apologize for piling on.

[00:21:54] Speaker 04:
I think it's three of us who are all asking you variations on the same question.

[00:22:01] Speaker 00:
Okay.

[00:22:05] Speaker 00:
that our position is that it's not sufficient to simply state that I was temporarily replaced by someone outside my protected class.

[00:22:12] Speaker 04:
Well, it was more than temporarily.

[00:22:12] Speaker 04:
I mean, they didn't send her back to Shelton.

[00:22:15] Speaker 04:
No, she was replaced, period.

[00:22:17] Speaker 04:
And the people who put in were temporary.

[00:22:19] Speaker 04:
But was there ever somebody inside the protected class that was put in permanently?

[00:22:25] Speaker 00:
The person who was hired for the permanent position was Tammy Nicholson.

[00:22:32] Speaker 00:
So yes, there was.

[00:22:33] Speaker 00:
And she is a woman.

[00:22:37] Speaker 00:
Asian?

[00:22:38] Speaker 00:
No.

[00:22:38] Speaker 00:
Non-white?

[00:22:39] Speaker 00:
Not to my knowledge, Your Honor.

[00:22:41] Speaker 00:
So in other words, we still have somebody outside the class.

[00:22:45] Speaker 00:
Yes, Your Honor.

[00:22:46] Speaker 00:
But the critical question, even if Your Honor finds that the prima facie case is made, comes down to pretext.

[00:22:52] Speaker 00:
And for the reasons I previously described, Louis does not show pretext.

[00:22:55] Speaker 00:
And for that reason, this court should affirm.

[00:22:59] Speaker 00:
If there aren't any additional questions on this point, I'd like to move to the retaliation claim.

[00:23:07] Speaker 00:
The District Court correctly granted summary judgment on the Postal Service's retaliation, excuse me, for the Postal Service on Louis' retaliation claim for three reasons.

[00:23:18] Speaker 00:
One, because Louis' actions in taking an angry non-employee who was yelling at his postal employee wife into an employee-only area is not protected opposition activity.

[00:23:29] Speaker 00:
Two, because even if this panel were to accept Louis' post-hoc spin on the relevant events, characterizing her actions as opposing sexual harassment, the district court correctly held that Louis failed to demonstrate a causal link to Bacon's decision to downgrade Louis.

[00:23:44] Speaker 00:
And three, because Louis cannot raise a new legal theory for retaliation, not plead in her amended complaint.

[00:23:50] Speaker 00:
And taking the district court's second reason first, Bacon's downgrade decision expressly stated that she did not consider specification three, taking the angry husband into the employee only area and determining to downgrade to downgrade Louis.

[00:24:04] Speaker 00:
She explained that she disagreed with the approach, that there were alternatives to bringing this non-employee into the workplace, but found that given the totality of the circumstances, it did not rise to the level of unacceptable conduct.

[00:24:16] Speaker 00:
So Bacon made clear she didn't distinguish it.

[00:24:19] Speaker 00:
And this also shows that this was independent judgment, because she didn't accept what was given to her.

[00:24:24] Speaker 00:
She decided this wasn't sufficient.

[00:24:27] Speaker 00:
Because Louie cannot demonstrate a causal link to her downgrade, the district court's retaliation decision should be affirmed for this reason alone.

[00:24:36] Speaker 00:
But moving back to the district court's first reason for granting summary judgment, the record does not support Louie's post-hoc spin and characterizing the relevant actions as opposing sexual harassment.

[00:24:49] Speaker 00:
Among other things, Louie's contemporaneous email admits that she allowed an angry yelling

[00:24:56] Speaker 00:
non-employee to enter an employee-only area in order to, quote, calm him down after she witnessed a domestic altercation with his postal employee wife.

[00:25:04] Speaker 01:
Counsel, I think we understand your point there.

[00:25:07] Speaker 01:
Sorry, with your remaining time, can you address the question of assuming we think we have the discretion to reach the merits of the hostile work environment claim and specifically the administrative exhaustion issue?

[00:25:23] Speaker 01:
Why wasn't that error on the district court's part?

[00:25:27] Speaker 00:
The administrative exhaustion issue, Your Honor.

[00:25:29] Speaker 00:
It wasn't error because it is a discrete act.

[00:25:36] Speaker 00:
As Your Honor raised in the first argument, there's no question, there should be no question, that Louis has waived this on appeal by not raising it.

[00:25:45] Speaker 04:
She mentions hostile work environment repeatedly in her brief.

[00:25:48] Speaker 00:
She mentions the merit of hostile work environment, but she doesn't mention exhaustion once, not even the word.

[00:25:54] Speaker 01:
Well, I said let's assume we exercise our discretion to reach this issue, the merits of the administrative exhaustion issue.

[00:26:03] Speaker 01:
My understanding is that the district court or that plaintiff contends they exhausted it because the demotion is both a standalone act and the culmination or part of a continuing course of conduct that mounted to hostile work environment.

[00:26:23] Speaker 01:
Why is, why does that argument not succeed on the merits?

[00:26:28] Speaker 00:
That argument doesn't succeed on the merits under Morgan and Porter.

[00:26:33] Speaker 00:
And the reason it doesn't succeed is because it's a discrete act.

[00:26:36] Speaker 00:
And I believe, although it's not clear even in the reply brief,

[00:26:40] Speaker 00:
What act louis is referring to I believe she's referring to the proposed downgrade because you're saying we couldn't consider the Demotion as part of the hostile work environment claim i'm saying you shouldn't because it's a discrete it's a discrete act and the reason it's a discrete act is because hostile actions that make up a hostile work environment claim need to be made because

[00:27:02] Speaker 00:
because of animus based on a protected class and the proposed downgrade made by Carter Clark or even the downgrade made or even the downgrade decision issued by Karen Bacon.

[00:27:14] Speaker 00:
Louie hasn't provided any competent evidence of gender, racial or national origin basis on their part.

[00:27:23] Speaker 00:
Um, the, what Porter instructs is that you look at the hostile work environment that the, that the plaintiff has pled or described.

[00:27:31] Speaker 00:
And if you look at what's pled or, excuse me, described in, in her brief and her, in her reply, she talks about, um, alleged comments.

[00:27:40] Speaker 00:
of racial and gender hostility and actions taken by individuals who have allegedly exhibited bias.

[00:27:48] Speaker 00:
That bias is not attributed to Carter Clark or Karen Bacon for that matter.

[00:27:54] Speaker 04:
Yeah, but we've got a line of cases, I'll call them cat's paw cases, where you have a neutral decision maker, but the information and argument that's coming before the administrator and upon which the decision is made is coming from discriminatory sources.

[00:28:12] Speaker 04:
So Bacon may be innocent, but everything she's basing her decision on is not.

[00:28:18] Speaker 00:
I see my time is up.

[00:28:19] Speaker 00:
May I answer Your Honor's question?

[00:28:21] Speaker 00:
When we're talking about cat's paw, that's an argument that plaintiff has argued in connection with the disparate treatment.

[00:28:29] Speaker 00:
And so that may be an inquiry that Your Honor and this court undertakes with respect to cat's paw.

[00:28:35] Speaker 00:
And again, for the reasons we have stated, we argue that Bacon's decision

[00:28:40] Speaker 00:
was independent and they haven't provided competent evidence that she did not honestly believe it, which is the question for pretext.

[00:28:47] Speaker 00:
When it comes to hostile work environment, to the extent that they're arguing a cat's paw theory for that, that's not clear in the brief.

[00:28:56] Speaker 01:
But your argument as to why it couldn't be considered part of the course of conduct is because it was essentially like we would have to find it's not a cat's paw decision.

[00:29:06] Speaker 01:
I mean, I think there's

[00:29:10] Speaker 01:
you know, the ultimate decision to demote by Bacon.

[00:29:14] Speaker 01:
And I think their argument is that they were interim decision makers whose decision was tainted by racial animus.

[00:29:22] Speaker 01:
That's the factual dispute.

[00:29:24] Speaker 01:
So in that

[00:29:27] Speaker 01:
you know, construing those facts in favor of plaintiff, why wouldn't that be enough to say that the demotion is part of their hostile work environment claim?

[00:29:40] Speaker 00:
For two reasons, and I see my answer.

[00:29:43] Speaker 00:
Okay.

[00:29:44] Speaker 00:
For two reasons.

[00:29:46] Speaker 00:
Plaintiff has to tie it, has to tie

[00:29:50] Speaker 00:
Bacon and Clark's decision, to the extent that that's what we're talking about, by competent evidence.

[00:29:56] Speaker 00:
And plaintiff has made speculation, and she has made conclusory allegations, but she hasn't tied it to speculative evidence.

[00:30:03] Speaker 00:
And I would ask, where in the record does it show that Bacon's decision wasn't independent?

[00:30:13] Speaker 01:
I guess if we disagree with that reading of the record, would that be enough?

[00:30:18] Speaker 00:
No, for the second reason, because the act of the proposed downgrade, or even if we're going to consider it the downgrade, isn't part of the alleged hostile work environment that's been painted, because it's not based on a protected class.

[00:30:37] Speaker 00:
These are different actors.

[00:30:38] Speaker 00:
And this is the line that was drawn in Porter, and we would ask that the court reach the same decision.

[00:30:45] Speaker 00:
For all these reasons, we ask that this panel affirm the decision of the district court.

[00:30:50] Speaker 00:
Okay.

[00:30:50] Speaker 00:
Thank you.

[00:30:50] Speaker 00:
Thank you.

[00:31:00] Speaker 02:
Your Honor, counsel spent some time regarding the honest belief of Ms.

[00:31:04] Speaker 02:
Bacon.

[00:31:06] Speaker 02:
I wanted to point the court's attention to SER-137.

[00:31:11] Speaker 02:
This is, this is, Ms.

[00:31:16] Speaker 02:
SER-137.

[00:31:17] Speaker 02:
It was submitted by defense counsel.

[00:31:23] Speaker 02:
I think even if you look at our deposition transcript, Ms.

[00:31:27] Speaker 02:
Bacon, when asked under oath by myself, I asked, do you think Don Louie's lying?

[00:31:34] Speaker 02:
about assaulting or throwing packages.

[00:31:38] Speaker 02:
And she says, if I recall from their appeal, I didn't necessarily perceive her to be lying, but not, you know, sometimes we don't recall things the way, you know, we don't perceive our actions the way others or, you know, don't appreciate the significance or seriousness.

[00:31:55] Speaker 02:
So I don't recall having the belief that she was lying.

[00:31:59] Speaker 02:
If the decision maker can't even commit to the person,

[00:32:03] Speaker 02:
who's trying to defend themselves being dishonest, that by definition to me is what not having an honest belief that the reasons for an adverse action are legitimate.

[00:32:18] Speaker 02:
And the one thing I also just did want to remind the court, too, defense counsel did spend some time about talking about, well, whether or not Ms.

[00:32:26] Speaker 02:
Louie took the right action by bringing the guy in and trying to, you know, Louie's version of events is she's trying to de-escalate the situation.

[00:32:34] Speaker 02:
Their version of events is it's the opposite.

[00:32:38] Speaker 02:
She's like amplifying it.

[00:32:39] Speaker 02:
That's a question of fact.

[00:32:41] Speaker 02:
But also, let's just assume.

[00:32:43] Speaker 04:
Yes, but Bacon didn't rely on that one, correct?

[00:32:46] Speaker 02:
Well, no, Bacon, Bacon, well,

[00:32:48] Speaker 02:
bacon withdrew that the irony is the bacon withdrew that as a reason for her final determination, but it's still part of it still could be a window into the initial proposed.

[00:33:03] Speaker 04:
Discipline and still could be the reason for the discipline even if she denied it doesn't mean it can't be a reason for the discipline But you said withdrew what do you mean withdrew they say it she and bacon initially relied on it Yeah, because it was in the proposed removal.

[00:33:17] Speaker 02:
That was why they one of the reasons she was What miss Louie was proposed for downgrade?

[00:33:24] Speaker 04:
Well, I know proposed by whom?

[00:33:25] Speaker 02:
That was by Carter Clark.

[00:33:28] Speaker 04:
So with Drew, did Bacon ever rely on that third credit, on that third ground?

[00:33:35] Speaker 02:
In my opinion, Your Honor, I think that's a question of fact.

[00:33:37] Speaker 02:
She stated she didn't.

[00:33:39] Speaker 04:
He said she didn't rely on that.

[00:33:40] Speaker 04:
Correct.

[00:33:40] Speaker 04:
Okay, so do you have any reason to think that she did?

[00:33:44] Speaker 02:
I do.

[00:33:44] Speaker 02:
Yeah, and the reason is because

[00:33:48] Speaker 02:
Notice, the downgrade didn't even happen until, well, the reason is because the cat's paw theory still applies.

[00:33:55] Speaker 02:
I think we wouldn't even be in the decision where Bacon could even make the decision if that event didn't happen where she was investigating sexual harassment.

[00:34:05] Speaker 04:
No, no, I get all that.

[00:34:06] Speaker 04:
And this may be a small point, but as I would read the record, Bacon says on that third ground, I just don't rely on it.

[00:34:13] Speaker 04:
I rely on grounds one and two.

[00:34:15] Speaker 04:
And you say that she did rely on ground three, but I'm not hearing anything from you that tells me why you think that, except some general sense.

[00:34:26] Speaker 02:
Yeah, the only evidence we have to support that is just that it is based on the cat's paw theory.

[00:34:34] Speaker 02:
And then finally, the one thing I just wanted to remind this court about is, look, one of the most seminal cases for Title VII happened within the last five years.

[00:34:44] Speaker 02:
That was the case Bostock, and Bostock ruled that just because the causation standard says but for for Title VII in a retaliation case doesn't mean that there can't be multiple but for causes.

[00:34:59] Speaker 02:
In this case, certainly there could be some non-discriminatory reasons for the post office wanting to downgrade Louis.

[00:35:07] Speaker 02:
Maybe, you know, they just don't like how

[00:35:10] Speaker 02:
She manages people.

[00:35:11] Speaker 02:
Maybe they did truly believe that she caused a safety issue.

[00:35:16] Speaker 02:
But the jury gets to weigh whether there was multiple but four causes, not just one.

[00:35:22] Speaker 02:
So with that being said, we thank you, Your Honors.

[00:35:26] Speaker 01:
Thank you for your arguments.

[00:35:30] Speaker 01:
With that, this matter is submitted.