[00:00:05] Speaker 05:
Once again, Mr. Kama's position is that the district court's granting of the summary judgment should be reversed.

[00:00:16] Speaker 05:
The appellant believes that he has shown in his briefs and the evidence submitted that when viewed in the light most favorable to Mr. Kama,

[00:00:35] Speaker 05:
In 2011, the TSA was notified that Kama took money for representation in EEO proceedings, and that's prohibited by TSA regulations.

[00:00:50] Speaker 05:
They pursued the other person involved in that in 2011.

[00:00:54] Speaker 05:
Mr. Kama was not pursued at that time.

[00:01:06] Speaker 03:
I had difficulty understanding.

[00:01:52] Speaker 05:
And so fast forward to 2014, June of 2014, the TSA decides to open an investigation based on, there's nothing new.

[00:02:08] Speaker 05:
There's just two people who claim that Kama took money for representation in 2011.

[00:02:14] Speaker 05:
In 2014, they opened

[00:02:31] Speaker 05:
Is it a crime also?

[00:02:35] Speaker 05:
Yes.

[00:02:38] Speaker 05:
I don't understand that either, Your Honor.

[00:02:41] Speaker 05:
Not only was no new evidence uncovered during the OOI investigation, the two witnesses

[00:02:50] Speaker 05:
I think, Kelly and Lopez, who had initially accused Mr. Kama of accepting money for representation, recanted their story.

[00:03:00] Speaker 05:
So there was less evidence at the end of the investigation than there was at the beginning.

[00:03:05] Speaker 05:
And then on October... They recanted their story about giving him money?

[00:03:10] Speaker 05:
Correct.

[00:03:12] Speaker 05:
Okay.

[00:03:12] Speaker 05:
Because there were at least two people involved in this, and they said no.

[00:03:15] Speaker 05:
When they were reintervened by...

[00:03:22] Speaker 05:
we give money to the other guy.

[00:03:27] Speaker 05:
So on February 19th of 2015, Mr. Kama files an EO complaint.

[00:03:35] Speaker 05:
I believe it was he was unfairly treated in either

[00:03:51] Speaker 05:
harassment.

[00:04:02] Speaker 05:
This didn't have anything to do with that.

[00:04:04] Speaker 05:
This is totally separate to that, Your Honor.

[00:04:06] Speaker 05:
And then, on February 27th of 2015, they issued, um, Mr. Kama Kalkhine's warning and proceed with the

[00:04:18] Speaker 05:
Mr. Kama.

[00:04:19] Speaker 05:
They interviewed him on two separate occasions and they asked him repeatedly whether he received money for representation and he repeatedly said no.

[00:04:28] Speaker 05:
They then demanded that Kama turn over bank records showing he had received money for representation and Kama informed the TSA that there are no bank records showing that I received money for representation.

[00:04:46] Speaker 05:
complaint, Kama was proposed for and removed for service.

[00:04:50] Speaker 05:
Clearly, there is a protected EEO activity and an adverse employment reaction.

[00:04:57] Speaker 05:
And then we get to the causation.

[00:04:59] Speaker 05:
And as the judge found in the district court, the causation here is based on the temporal proximity of less than two months between Mr. Kama exercising his rights on the protected EEO activity

[00:05:22] Speaker 05:
When we get to the issue of pretext, we move to pretext, that's clearly shown by the temporal proximity, again, pursuant to Bell and Miller, and as well as the other evidence of pretext.

[00:05:39] Speaker 05:
Like Ferrara, there's evidence of hostility and animus here.

[00:05:46] Speaker 05:
As the court said in Winarto, the evidence of timing of events

[00:05:54] Speaker 05:
toward Wenato could support a jury's reasonable inference that Taylor had a retaliatory motive.

[00:06:04] Speaker 03:
So you claim there was a material issue of fact of pretext because other employees were treated differently?

[00:06:13] Speaker 05:
Not in this case, Your Honor.

[00:06:14] Speaker 05:
I don't think there were any other employees treated

[00:06:18] Speaker 05:
similar to Mr. Kama or were involved in the same thing as Mr. Kama.

[00:06:23] Speaker 05:
So I don't think so, but we definitely have the hostility.

[00:06:26] Speaker 05:
The, um, and that's shown by the, uh, the fact that when they start this investigation with the OOI in June, they, when they finish it in January and submit it to the Department of Justice,

[00:06:53] Speaker 05:
people that comma had represented in grievance proceedings.

[00:07:28] Speaker 05:
ever resolved.

[00:07:30] Speaker 05:
I don't remember whether that was ever resolved.

[00:07:32] Speaker 05:
I think it was still pending at the time that all of this jumped off.

[00:07:39] Speaker 05:
So additionally, the evidence of hostility is Mr. Young, acting on behalf of the TSA, interviewed Deron Jones and he said,

[00:08:00] Speaker 05:
Mr. Young, the investigator.

[00:08:03] Speaker 05:
And then when Mr. Kamel was interviewed, he asked to be represented by an employee.

[00:08:11] Speaker 05:
The TSA denied his proposal, his personal representative.

[00:08:16] Speaker ?:
He wanted Mr. Sonier.

[00:08:18] Speaker 05:
The TSA said, no, there's a conflict of interest, despite the fact

[00:08:27] Speaker 05:
anything now at risk for Mr. Kama was his employment with TSA.

[00:08:33] Speaker 05:
So there was no conflict of interest that could have existed because Sonya never worked for the TSA and wasn't under their disciplinary umbrella.

[00:08:57] Speaker 05:
And after the first interview, they interview him again.

[00:09:01] Speaker 05:
And at this point, they get into Mr. Kama's protective First Amendment activity.

[00:09:05] Speaker 05:
That is his membership in the group UTSPA, United Transportation Security Professionals.

[00:09:13] Speaker 05:
It's a union.

[00:09:14] Speaker 05:
It's not a union.

[00:09:15] Speaker 05:
It's a fraternity.

[00:09:16] Speaker 05:
It's not like a union, no.

[00:09:17] Speaker 05:
It's an order like a union.

[00:09:18] Speaker 05:
Right, but it's like they can't call it butter, Your Honor.

[00:09:22] Speaker 05:
It's not a union.

[00:09:22] Speaker 05:
It's a fraternal organization.

[00:09:30] Speaker 03:
as I mentioned here, of an undisputed violation of TSA regulations by comma.

[00:09:38] Speaker 03:
Do you think that that's correct?

[00:09:55] Speaker 05:
fact that he was asked whether he received any money.

[00:10:00] Speaker 05:
He denied it.

[00:10:01] Speaker 05:
He was asked to provide any documents that show that he received money.

[00:10:06] Speaker 05:
He denied it.

[00:10:07] Speaker 05:
He denied ever receiving any money.

[00:10:09] Speaker ?:
Well, he didn't deny it.

[00:10:10] Speaker 05:
He said, there are no such documents because it never happened.

[00:10:14] Speaker 05:
And TSA pressed him and said, now turn over all of your bank statements.

[00:10:19] Speaker 05:
And Mr.

[00:10:30] Speaker 05:
no evidence whatsoever that Mr. Kama had done anything wrong.

[00:10:36] Speaker 04:
What was he disciplined for?

[00:10:39] Speaker 04:
I don't understand this.

[00:10:41] Speaker 05:
The one we're talking about, he was disciplined for failing to cooperate with the TSA investigation.

[00:10:50] Speaker 03:
By not turning over his bank record.

[00:10:51] Speaker 05:
By not turning over his entire

[00:11:17] Speaker 05:
There was no discussion about it.

[00:11:42] Speaker 05:
employees that Mr. Kama had represented who all said they didn't pay Kama anything.

[00:11:48] Speaker 05:
So they have records of who represents whom in the TSA process.

[00:11:54] Speaker 05:
The records show that Kama, who Kama represented, they asked those people.

[00:12:00] Speaker 05:
Those people said we never gave him any money.

[00:12:09] Speaker 01:
within the discretion of the TSA who they would seek records from, including bank records.

[00:12:20] Speaker 01:
It seems to me that the TSA has got a big job to keep the government afloat and to keep passengers from getting

[00:12:43] Speaker ?:
when they want to seek them.

[00:12:45] Speaker ?:
Well, I would argue that it can't be unfettered discretion, Your Honor.

[00:12:48] Speaker 05:
There has to be some basis for the inquiry.

[00:12:51] Speaker 05:
They have to have something before they intrude into Mr. Kama's business, his financial records.

[00:12:58] Speaker 05:
Which record is it that has to be probable cause for a warrant to see his bank records?

[00:13:03] Speaker 05:
Right.

[00:13:03] Speaker 05:
And if there was, they could have gotten it.

[00:13:05] Speaker 05:
But the DOJ declined to prosecute.

[00:13:09] Speaker 05:
And the organization, UTSP... One thing is a crime and the other thing is a...

[00:13:16] Speaker 05:
but they would proceed if they had probable cause on those charges, they declined to prosecute because there was no probable

[00:13:49] Speaker 02:
May it please the court?

[00:13:51] Speaker 02:
I'm Assistant United States Attorney Jill Castleman, and I'm representing APA Lee Alejandro Mayorkas.

[00:13:57] Speaker 02:
I'd like to start my time by responding to some questions that have already been asked.

[00:14:02] Speaker 02:
I also do not have a definitive answer for you, Your Honor, regarding why employees are not allowed to accept money for representing other employees before the agency.

[00:14:12] Speaker 02:
It's not in the record, but I can tell you they absolutely can represent employees, and Mr.

[00:14:30] Speaker 02:
as long as they are not accepting money.

[00:14:34] Speaker 02:
So the second point is some issues with respect to the timeline.

[00:14:38] Speaker 02:
So I believe my colleague indicated that the February 2015 EEO complaint that preceded the removal in this case had to do with a hostile work environment involving another employee.

[00:14:51] Speaker 02:
That's actually incorrect.

[00:14:52] Speaker 02:
That EEO complaint was brought in May of

[00:15:05] Speaker 02:
May 2014.

[00:15:06] Speaker 02:
The removal was in April 2015.

[00:15:08] Speaker 02:
The EEO complaint that the District Court used in this case to say that there was temporal proximity between the removal and an EEO complaint was the February 2015 EEO complaint, which had to do with Mr. Kama requesting

[00:15:43] Speaker 02:
I actually do not believe this is in the record, but counsel will correct me, to care for his ailing father and he was in another state and he was afforded continuous FMLA leave to go be with his father in another state.

[00:16:01] Speaker 02:
He filed the EEO complaint arguing

[00:16:09] Speaker 02:
and then say I'm gone the next intermittent time off of work.

[00:16:12] Speaker 02:
That was the subject of the EEO complaint that preceded the removal by 56 days.

[00:16:31] Speaker 02:
There was no connection whatsoever between the February 2015 EEO complaint, which named as responsible management officials some HR personnel who granted his continuous FMLA leave and the managers who were responsible for the removal decision.

[00:16:50] Speaker 02:
These are entirely different factual circumstances, nothing to do

[00:16:56] Speaker 02:
that was later the basis for Mr. Cama's removal.

[00:17:01] Speaker 02:
The only reason that TSA has ever given for Mr. Cama's removal, and this is the reason relied upon by the district court in granting summary judgment, is that Mr. Cama failed to fully cooperate in the agency investigation, and that is a violation of TSA policy.

[00:17:20] Speaker 02:
Full cooperation means answering all questions

[00:17:25] Speaker 02:
of you and not objecting based on your perception that it's outside the scope of the investigation.

[00:17:32] Speaker 04:
What was his failure?

[00:17:33] Speaker 04:
Was his failure to turn over his bank records in the first instance?

[00:17:50] Speaker 02:
two occasions in March 2015.

[00:17:53] Speaker 02:
So there was a March 2nd and March 6th interviews where he was asked questions and at those interviews he did not answer, substantively answer questions.

[00:18:07] Speaker 02:
So that's charge one that was the basis of the removal.

[00:18:10] Speaker 02:
And then several days later on

[00:18:18] Speaker 02:
bank records.

[00:18:19] Speaker 02:
So all in March of 2015, refusals to answer questions and refusals to provide records.

[00:18:27] Speaker 02:
So now that I hope clarified the timeline here, I'd like to discuss the issue of pretext, which is what appellant is asserting is satisfied.

[00:18:37] Speaker 02:
So

[00:18:44] Speaker 02:
and I'd like to discuss the other matters that he cites as evidence that he believes should satisfy pretext.

[00:18:51] Speaker 02:
So, with respect to temporal proximity here, you've heard that it's 56 days between the unrelated EEO complaint and the removal.

[00:19:02] Speaker 02:
Appellant contends that this should be sufficient to show pretext, but the case law doesn't so hold.

[00:19:07] Speaker 02:
It's generally insufficient to show pretext.

[00:19:14] Speaker 02:
because the standard on summary judgment is that you need to, at the pretext stage, offer either direct evidence that the reason given is not the true reason or specific and substantial circumstantial evidence that the reason given was not real and that it's pretext for unlawful discrimination.

[00:19:36] Speaker 02:
Temporal proximity is neither direct evidence nor specific and substantial evidence of pretext.

[00:19:53] Speaker 02:
Well, so if I may answer your question slightly differently than you've asked it, the best case for the notion that temporal proximity alone does not satisfy the pretext, I believe, is Wallace versus JR Simplot, which is cited in the briefing.

[00:20:12] Speaker 02:
There are other cases which say three months, give or take,

[00:20:22] Speaker 02:
causation at the prima facie case stage no case no case whatsoever cited in any brief says that temporal proximity without more gets you by pretext now there are lots of cases in the briefing that council cites for that proposition but I do not believe any of them is actually standing for the proposition that temporal proximity of 56 days or even a short

[00:21:08] Speaker 02:
to dismiss which are in the record.

[00:21:11] Speaker 02:
Council has, sorry, Mr. Kama has abandoned the argument, has withdrawn the argument that the 2014 EEO complaint is the basis of temporal proximity for this case and there's nothing about the investigation itself

[00:21:30] Speaker 02:
2014 EEO complaint was actually the basis for his removal.

[00:21:35] Speaker 02:
Nothing about the investigation that Mr. Young conducted had to do with the reason for his removal.

[00:21:42] Speaker 02:
It was only Mr. Kama's failure to fully participate and cooperate in that investigation that was the basis given for the removal.

[00:21:52] Speaker 02:
In addition to being unsupported by the case law, I believe that Appellant's position

[00:22:01] Speaker 02:
It would mean that any case that involves an employee who has filed an EEO complaint automatically goes to a jury any time they are disciplined or removed.

[00:22:14] Speaker 02:
And it would incentivize the filing of frivolous EEO complaints because it would force to all the consequences of one's actions.

[00:22:20] Speaker 02:
It would be like a get out of jail free card.

[00:22:22] Speaker 02:
And I think that EEO complaints are not a get out of jail free card, particularly here where the evidence of misconduct is, I would say, undisputable.

[00:22:41] Speaker 02:
that he didn't provide documents.

[00:22:42] Speaker 02:
He just characterizes his conduct as cooperative to the extent he wishes it could be.

[00:22:48] Speaker 02:
So I believe that his indiscretion

[00:22:56] Speaker 02:
So if I may now, I'll turn to the other evidence of pretext that Mr. Cama has cited.

[00:23:03] Speaker 02:
I should note in Appellant's opening brief at page 42, he says he's primarily relying on temporal pretext to establish, sorry, excuse me, temporal proximity to establish pretext.

[00:23:16] Speaker 02:
But he does cite to other matters, and he claims they are evidence, so we should discuss those as well.

[00:23:22] Speaker 02:
In evaluating the other evidence, the district court was

[00:23:27] Speaker 02:
the matters that he referenced as immaterial to the relevant question.

[00:23:31] Speaker 02:
And that relevant question is whether the TSA decision-maker honestly believed that Mr. Kama failed to cooperate in the investigation and whether that failure warranted discharge.

[00:23:43] Speaker 02:
There is no dispute in the record whatsoever that that Mr. Bondoc, who is the deciding official here, believed that Mr. Kama engaged in the misconduct and

[00:24:04] Speaker 02:
So most of the arguments that appellant raises have to do with Special Agent Young, who was the investigator who was investigating his potential misconduct, which again, I would like to emphasize, he was not terminated for having proved some case that he accepted money for representing EEO complainants.

[00:24:22] Speaker 02:
It was entirely because he failed to cooperate in the investigation.

[00:24:27] Speaker 02:
The problem with relying on Special Agent Young's actions is that Mr. Young was not the decision maker, and at the relevant time

[00:24:40] Speaker 02:
didn't know of Mr. Kama's EEO activity.

[00:24:45] Speaker 02:
So even if appellant were asserting that Young had some sort of animus against him, he cannot show that that animus was retaliation for his EEO activity because Mr. Young did not know of his EEO activity.

[00:25:00] Speaker 02:
Why do you say that he did not know?

[00:25:01] Speaker 02:
So in the record at

[00:25:05] Speaker 02:
pages 297 and 298 there is deposition testimony from an unrelated EEO complaint where Mr. Young was asked and he answered that he did not become aware of Mr. Kama's EEO activity until early 2015 and the comment that he made regarding I'm going to get Kama to Mr. Jones was in the fall of

[00:25:33] Speaker 02:
And that is undisputed evidence, by the way, that he did not know about the EEO activity.

[00:25:40] Speaker 02:
So I would say that to the extent we're attempting to rely on Special Agent Young, we need to look at the imputed bias analysis that courts look at in such circumstances

[00:25:54] Speaker 02:
had the kind of influence over Mr. Bondoc in his decision making that could have motivated some sort of impuged bias.

[00:26:03] Speaker 02:
There's two things that establish this and they're both undisputed.

[00:26:07] Speaker 02:
The first is that Mr. Bondoc testified at the summary judgment proceeding

[00:26:14] Speaker 02:
I believe that's his notice of removal, that he reviewed all the materials, he reviewed Mr. Kama's submissions, he reviewed his written answers to the investigators, and he actually met with Mr. Kama.

[00:26:38] Speaker 02:
The second piece of evidence, also undersputed, is that Mr. Young testified in his declaration at summary judgment, page 695 in the record, that I was not involved in the decision to take any subsequent disciplinary action against him.

[00:26:52] Speaker 02:
So to the extent that appellant wants to argue that there's some thing going on in the background behind the curtain, you need to have evidence of it.

[00:26:59] Speaker 02:
Speculation that somebody is acting out of retaliation is not sufficient, and in fact,

[00:27:12] Speaker 02:
even more lacking.

[00:27:13] Speaker 02:
So there's absolutely nothing in this case that suggests that the EEO activity in February 2015 was the reason, or even a partial reason, or even in any way related to the reasoning that was given for Mr. Cama's removal.

[00:27:33] Speaker 02:
All the evidence shows that Mr. Bondock honestly believed the reason that he gave, which is

[00:28:02] Speaker 05:
First, I respond to the case they cited by directing the court to Passantino, which is in my brief about the issue of temporal proximity is sufficient to show pretext.

[00:28:19] Speaker 05:
Evidence based on timing can be sufficient to let the issue go to the jury, even in the face of alternate reasons proposed by the defendant.

[00:28:27] Speaker 05:
That's Passantino at 507.

[00:28:37] Speaker 05:
fully cooperated with what at this point it's a witch hunt your honors there's no evidence that mr. Kama ever did anything wrong what how far does it have to go do they gonna ask him to go to his house and search his house

[00:29:13] Speaker 05:
I think, first, the TSA has to have something to be working on.

[00:29:17] Speaker 05:
They can't just make everybody turn over their documents.

[00:29:21] Speaker 05:
Why?

[00:29:22] Speaker 05:
If that's a contractual term of employment?

[00:29:26] Speaker 03:
I think that's unreasonable, as a contractual term of employment.

[00:29:29] Speaker 03:
It may be unreasonable, but it's something he agreed to.

[00:29:33] Speaker 03:
Or didn't he?

[00:29:34] Speaker 03:
Is your position that he didn't agree to this term?

[00:29:37] Speaker 03:
No, he agreed he was going to... He agreed to the term fully cooperate, right?

[00:29:41] Speaker 05:
With respect to the Honest Belief, I'll like have some seconds left.

[00:29:46] Speaker 05:
The deciding official and the proposing official both threatened Mr. Kama with criminal prosecution despite the fact that a Kalkine's warning had been issued saying no criminal prosecution was pending.

[00:30:26] Speaker 03:
Hello.