[00:00:03] Speaker 03: Good morning, Your Honor. [00:00:04] Speaker 03: Good morning. [00:00:08] Speaker 03: Are you guys ready? [00:00:08] Speaker 05: Yes. [00:00:09] Speaker 05: Go ahead. [00:00:09] Speaker 03: May I reserve five minutes, please? [00:00:12] Speaker 05: Take a look at the clock yourself because we won't remind you. [00:00:16] Speaker ?: All right. [00:00:17] Speaker 03: I will do my best to make sure. [00:00:20] Speaker 03: Good morning. [00:00:20] Speaker 03: I represent Sylvia Ferrara. [00:00:24] Speaker 03: I'm here because she believes, and I believe with her, that this court [00:00:38] Speaker 03: When viewed in the light most favorable to the appellant, there are sufficient disputed facts, material facts, that could support a jury finding that Ferrara was the victim of retaliation for her participation in the EEO process. [00:00:51] Speaker 05: Let's go directly to that material fact. [00:00:54] Speaker 05: What is a material fact which a reasonable juror could [00:01:03] Speaker 03: The one we primarily relied on in the district court was the temporal proximity in that there's, as the court noticed in the causation analysis, there was a little over three months between when Sylvia Ferrara settled her EEO case, which resulted in the removal of a letter of reprimand from her file because of discrimination. [00:01:34] Speaker 03: by the TSA. [00:01:37] Speaker 03: And if you go beyond that, there's also the issues that the TSA's one deviation from procedure can be used to determine whether there was retaliation. [00:01:52] Speaker 03: And in this case, from the top to the bottom of the incident that got Ms. [00:01:59] Speaker 03: Farrar fired, there was deviation from the TSA's procedure. [00:02:14] Speaker 03: I'm blanking on her name and I apologize, but we need to distribute these to all the terminals. [00:02:20] Speaker 03: The TSA policy is don't distribute them to the terminals. [00:02:23] Speaker 03: That's a no-no. [00:02:25] Speaker 03: She sends it to the terminals. [00:02:28] Speaker 03: All of the terminal people also should know that that's the [00:02:50] Speaker 03: That's the document that should not have been distributed to the terminal. [00:02:53] Speaker 03: There is a separate TSA procedure policy that states that. [00:02:59] Speaker 03: You do not distribute those to the terminals. [00:03:03] Speaker ?: Help me out. [00:03:04] Speaker 03: What does that document say? [00:03:05] Speaker 03: Can you know? [00:03:06] Speaker 03: I don't have it. [00:03:08] Speaker 03: It's in the brief. [00:03:08] Speaker 03: We quote it in the brief. [00:03:11] Speaker 03: We quote the exact location of where it is. [00:03:40] Speaker 03: The way Ms. [00:03:41] Speaker 03: Ferrara wound up with one is that her terminals and the terminal next to hers were distributed to Ms. [00:03:48] Speaker 03: Richards. [00:03:49] Speaker 03: Ms. [00:03:49] Speaker 03: Richards sent somebody over to Ms. [00:03:52] Speaker 03: Ferrara's terminal and that person left the binder on the podium with her. [00:04:01] Speaker 03: According to Ms. [00:04:01] Speaker 03: Ferrara, he never told her what she was to do with that or why he was delivering it. [00:04:19] Speaker 03: that that binder was never seen again. [00:04:22] Speaker 03: And at some point, after Scott picks up the binder, someone in management realizes, hey wait, these shouldn't be out there, and they call them all back. [00:04:46] Speaker 03: the person who sends out the binders, the person who distributes the binders, none of the people who kept the binders at the terminal, and the person who actually lost, physically lost the binder, were not punished in this. [00:05:05] Speaker 02: You admit that that would be grounds for a release, would you not, that she lost it or misplaced it or something like that? [00:05:14] Speaker 03: Yes, but she knows where she left it. [00:05:17] Speaker 03: There's somebody who actually had it and then lost it, could not find it. [00:05:47] Speaker 04: binder. [00:05:49] Speaker 04: Yes, the person who actually lost the binder was Mr. Scott and that's on the CCTV footage your honor showing that he went to the he picked up that binder and left the podium with it. [00:06:01] Speaker 04: So what I wanted to know was this. [00:06:04] Speaker 04: I know that the security officer, Ferrara, has a duty to keep binders confidential. [00:06:23] Speaker 04: the different title and didn't have the job of maintaining the funders. [00:06:35] Speaker 03: All right. [00:06:35] Speaker 03: So, Your Honor, in the TSA there are policies and unless they specifically say this policy applies to the front line TSOs or the supervisors or management, then they apply to everyone in the TSA. [00:06:49] Speaker 03: And that [00:06:58] Speaker 03: this person, if he was going to take it, he should have taken it and put it either in a secure filing cabinet that they have at the terminal or returned it towards the main office. [00:07:12] Speaker 03: But these policies apply to everyone. [00:07:16] Speaker 04: Counsel, does the record tell us what happened to this binder? [00:07:21] Speaker 03: Yes, Mr. Scott picked it up [00:07:28] Speaker 05: But my note here shows that Mr. Scott was not subject to the same rules as was your client, the LCA, whatever LCA stands for. [00:07:41] Speaker ?: The LCA stands for Last Chance Agreement, Your Honor. [00:08:04] Speaker 03: In lieu of being fired, given a last chance agreement, but Scott was not given a last chance agreement. [00:08:09] Speaker 03: No, but Scott was not punished at all. [00:08:12] Speaker 03: At all. [00:08:14] Speaker ?: That's the point of that. [00:08:16] Speaker ?: And then lastly, there's the issue of the hostility. [00:08:20] Speaker 03: The hostility that Garcia Hamilton had towards my client. [00:08:35] Speaker 03: my client, she could not take it and have a lawyer review it, despite the fact that it includes a clause that says that my client, Ms. [00:08:43] Speaker 03: Ferrara, was prohibited from filing a discrimination case against the TSA. [00:08:52] Speaker 03: That's kind of a waiver. [00:08:53] Speaker 03: It doesn't sound very legal to me. [00:08:55] Speaker 03: It doesn't, and the duds below kind of said that's not something you can do. [00:09:11] Speaker 05: Let me go through my notes real quick. [00:09:19] Speaker 03: Oh, I just point out that Ms. [00:09:21] Speaker 03: Ferrara had an exemplary record before this happened. [00:09:24] Speaker 03: Before she got the letter of reprimand, she had worked there for nine years or more. [00:09:31] Speaker 03: Before she got the letter of reprimand, which was subsequently removed from her file, she had not been subject to any discipline by the TSA. [00:10:04] Speaker 03: last year's agreement. [00:10:05] Speaker 03: And with that, I will leave you with, when viewed in the light and most favorable to the appellant, there is sufficient evidence of a [00:10:38] Speaker 01: Good morning, may it please the court, Paul Bartgreen, appearing on behalf of the appellee, Alejandro Mayorkas, Secretary of DHS. [00:10:49] Speaker 01: Your Honors, I would like to start by addressing the chronology, clear that up a bit. [00:10:55] Speaker ?: So, Ms. [00:10:56] Speaker ?: Ferrara filed her initial EEO case. [00:11:07] Speaker 01: instructions. [00:11:10] Speaker 01: She filed a discrimination case based on that and in 2013 that was settled. [00:11:16] Speaker 01: That was settled? [00:11:16] Speaker 01: That was settled, correct, in 2013. [00:11:18] Speaker 01: Then in April of 2013, Ms. [00:11:25] Speaker 01: Ferrara was suspended for posting topless photos on the internet that [00:11:41] Speaker 01: a month, Your Honor, but that notice of suspension is not what is at issue here. [00:11:48] Speaker 01: What is at issue in this case is that in the course of responding to the notice of suspension, Ms. [00:11:55] Speaker ?: Ferrara lacked candor in responding to TSA officials. [00:12:07] Speaker 01: a TSA employee who had helped her respond to the notice of suspension. [00:12:13] Speaker 01: So the removal that was proposed in April of 2013 [00:12:49] Speaker ?: can be, Your Honor. [00:12:50] Speaker 01: TSA is, the TSA employee is supposed to notify TSA if another TSA employee is helping them in responding to a suspension notice. [00:13:03] Speaker 05: But if that employee does so notify the person who's helping her and she get into trouble. [00:13:25] Speaker 01: the other TSA employee's representation would take away from TSA resources or TSA time. [00:13:33] Speaker 05: So TSA reserves a right to tell an employee whether a fellow employee can represent her? [00:13:44] Speaker ?: That's not precisely in the record, Your Honor. [00:13:46] Speaker ?: What's in the record is the policies that TSA should be notified. [00:13:51] Speaker ?: of the representation. [00:13:53] Speaker ?: And in this case, another TSA employee had provided her with a form that she used to respond to the suspension notice. [00:14:01] Speaker ?: And she doesn't use it? [00:14:03] Speaker 01: She used the other TSA employee's form to write an 18-page letter brief to respond to the notice of suspension. [00:14:27] Speaker 01: doesn't, Your Honor, because the TSA on appeal is not arguing that the last chance agreement is a defense to Ms. [00:14:38] Speaker ?: Ferrara's claims. [00:14:39] Speaker ?: Before the district court, the TSA argued that the last chance agreement barred all of her claims. [00:14:54] Speaker ?: summary judgment, however, after considering Ms. [00:14:57] Speaker 01: Ferrara's testimony, without considering its credibility, but only looking at the testimony, it determined that the last chance agreement did not bar all of the claims. [00:15:08] Speaker ?: So that this court, it is not necessary for this court to address whether or not the last chance agreement is enforceable. [00:15:17] Speaker 01: Your Honors, I would like to turn to pretext [00:15:21] Speaker ?: So even assuming that Ms. [00:15:22] Speaker ?: Farah established a prima facie case, she did not show that the TSA's reasons for her termination were pretext for retaliation. [00:15:33] Speaker ?: To establish pretext, Ms. [00:15:35] Speaker ?: Farah must show that the TSA did not honestly believe its reasons for removal. [00:15:43] Speaker ?: Ms. [00:15:43] Speaker ?: Farrar did not need to do that. [00:15:45] Speaker 01: Ms. [00:15:45] Speaker 01: Farrar had to present direct evidence of retaliation. [00:15:50] Speaker 01: She hasn't presented that. [00:15:51] Speaker 01: Or she has to present substantial and specific circumstantial evidence, which she also has not offered as to either her initial removal or the reinstatement of her removal. [00:16:09] Speaker 01: That was the one where she was removed for her lack of candor in responding to TSA employees' questions about who had helped her with the notice of suspension proposal, as well as her failure to designate a representative [00:16:28] Speaker 01: Ms. [00:16:29] Speaker 01: Farr relies solely on temporal proximity. [00:16:32] Speaker ?: That is the time between the settlement of her 2011 EEO complaint. [00:16:39] Speaker ?: Which was in 2013. [00:16:41] Speaker ?: Correct, Your Honor. [00:16:43] Speaker ?: And when was action taken against her for leaving the binder on the podium? [00:16:49] Speaker 01: Action was taken against her in July of 2013. [00:16:53] Speaker 05: July of 2013. [00:16:55] Speaker 05: Correct, Your Honor. [00:16:56] Speaker 05: So one month after the LCA? [00:17:02] Speaker 05: Correct, Your Honor. [00:17:07] Speaker 01: Okay. [00:17:08] Speaker 01: So jumping to the last chance agreement, Your Honor, Ms. [00:17:12] Speaker 01: Ferrara was removed on June 18th of 2013. [00:17:17] Speaker 01: When she was presented with her notice of removal, she asked, and this is in her testimony, if there's anything she could do to not get fired. [00:17:28] Speaker 01: It was only then that she was offered the last chance agreement. [00:17:33] Speaker 01: The last chance agreement you'll see in her testimony, she described as being a wonderful thing because it allowed her to keep her job. [00:17:41] Speaker 01: It was a benefit to her. [00:17:46] Speaker 01: However, [00:18:01] Speaker 01: supervising 50 to 70 employees, and she received a copy of the TSA's sensitive security information. [00:18:10] Speaker ?: The specific information was the standard operating procedures for screening passengers at TSA checkpoints. [00:18:19] Speaker 01: This is information that if disclosed could be detrimental to the traveling public. [00:18:27] Speaker 01: You'll see. [00:18:32] Speaker 01: correct your honor, but three months after the settlement of her prior EEO activity and two years after the initial filing of that EEO complaint. [00:18:49] Speaker 01: And that record is undisputed that Ms. [00:18:51] Speaker 01: Farrar violated TSA policy with the sensitive security information. [00:18:56] Speaker 01: In the record are still shots of the video footage, [00:19:03] Speaker ?: not in the record, only the still shots. [00:19:06] Speaker ?: It shows that she received the binder with a pink cover. [00:19:09] Speaker 01: An employee speaks to her about the binder, and then she puts it to the side on the podium where it's left. [00:19:17] Speaker ?: There's not evidence in the record about how the binder was lost. [00:19:23] Speaker ?: What there is evidence in the record of is that Ms. [00:19:26] Speaker ?: Ferrara failed to secure the binder. [00:19:30] Speaker 01: She admitted to that at deposition at the [00:19:44] Speaker 04: This confidential information on screening passengers by observation is disclosed. [00:19:59] Speaker ?: procedures used by TSA employees for screening passengers. [00:20:02] Speaker 01: So if in the wrong hands, that can be used to get around those procedures or get past the screening checkpoint at the airport. [00:20:17] Speaker 01: Thank you. [00:20:20] Speaker 01: Thank you. [00:20:20] Speaker 01: But the actual standard operating procedures, though described in the briefs, are not in the record precisely because they're sensitive security information. [00:20:43] Speaker 02: Yes, your honor. [00:20:44] Speaker ?: So two responses to that. [00:20:46] Speaker 01: So there's nothing in the record establishing that anyone else violated or failed to secure the binder. [00:20:53] Speaker 01: In fact, it shows the opposite. [00:20:55] Speaker 01: There's no evidence about what happened to the binder with Mr. Scott. [00:21:02] Speaker 01: Scott lost the binder. [00:21:05] Speaker 01: I don't believe that's established affirmatively in the record, your honor. [00:21:09] Speaker 01: That's Ms. [00:21:09] Speaker 01: Ferrara's allegation about Mr. Scott. [00:21:26] Speaker 05: A. Had a similar binder. [00:21:29] Speaker ?: B. Lost the binder. [00:21:31] Speaker ?: C. Was not punished. [00:21:34] Speaker ?: There is, there is evidence in the record that Mr. Scott had the binder at some point after Ms. [00:21:42] Speaker ?: Ferrara, but there's not evidence that he lost the binder. [00:21:47] Speaker ?: What Ms. [00:21:47] Speaker ?: Ferrara should [00:22:03] Speaker 05: the binder, and there's no further evidence where the binder ended up, then isn't it inferrable by a reasonable juror that Scott lost the binder? [00:22:20] Speaker 05: We're on motion to summary judgment, all in ten minutes in favor of the nonmovie [00:22:35] Speaker ?: Mr. Scott is a comparator, and on that point, the employee has to be similarly situated in all respects. [00:22:42] Speaker ?: And there's two great differences between Mr. Scott and Ms. [00:22:45] Speaker ?: Farrar. [00:22:46] Speaker 01: The first is Mr. Scott does not have the record or history of misconduct that Ms. [00:22:53] Speaker 01: Farrar did. [00:22:54] Speaker 01: And secondly, Mr. Scott was not on the last-chance agreement. [00:22:59] Speaker 01: There is no evidence in the record that any other employee was on a last-chance agreement like Ms. [00:23:03] Speaker 01: Ferrara. [00:23:04] Speaker 01: And I would point your honors to Leon versus Potter. [00:23:08] Speaker 01: It's not cited in the answering brief, so I'll give the site 3-4-7. [00:23:13] Speaker 01: F-3rd, 1-1, 1-7. [00:23:18] Speaker 01: the comparator analysis, whether or not an employee is on a last-chance agreement is relevant to the comparator analysis. [00:23:27] Speaker ?: Give me that case again. [00:23:28] Speaker ?: Sure. [00:23:28] Speaker ?: It's Leong, L-E-O-N-G-V Potter, and it's at 347, F3rd, 11, 17. [00:23:40] Speaker ?: It's a 2003 decision. [00:23:44] Speaker 01: And just one more point on the comparatives, Your Honor. [00:23:48] Speaker 01: Ms. [00:23:48] Speaker 01: Farrar is using comparators from her discrimination claim, which she has abandoned. [00:23:54] Speaker 01: So these comparators from a discrimination claim do not apply to the retaliation claim. [00:24:01] Speaker 01: There simply is not evidence that the TSA terminated her because of her 2011 EEO complaint. [00:24:30] Speaker 01: Your Honor, the TSA police provide that. [00:24:38] Speaker ?: be secured. [00:24:40] Speaker 01: There's not evidence in the record as to what Mr. Scott did with the binder, if he in fact had it. [00:24:47] Speaker 01: What is in the record is that Ms. [00:24:49] Speaker 01: Ferrara had the binder. [00:24:51] Speaker 01: When she was asked about it later, she put it aside and doesn't remember what she did with it. [00:24:59] Speaker 01: So there's clear evidence that Ms. [00:25:00] Speaker 01: Ferrara did not secure the binder. [00:25:03] Speaker 01: And I think more importantly, there's not evidence that [00:25:07] Speaker 01: Any TSA harbored any animosity toward Ms. [00:25:11] Speaker ?: Farrah that can be considered retaliation because of her 2011 EEO complaint? [00:25:18] Speaker ?: What was the basis of her 2011 EEO complaint? [00:25:24] Speaker ?: The letter of reprimand she received for not following instructions [00:25:37] Speaker 04: was that it was discrimination based on race because she was Hispanic. [00:25:45] Speaker 04: Race or origin or nationality. [00:25:50] Speaker 01: That could be, Your Honor, and I see my time is up, but I would just point out that the decision-makers in 2013 were not involved in the 2011 complaint or the resolution of that complaint. [00:26:02] Speaker 01: Um, well sir, any other questions? [00:26:05] Speaker 01: We'd ask the court to affirm the district court's judgment. [00:26:10] Speaker 05: Thank you, Your Honors. [00:27:08] Speaker 03: an EEO complaint is also an EEO event. [00:27:11] Speaker ?: That case was settled. [00:27:13] Speaker ?: She resolved that case in her favor and that letter of reprimand was removed from her file. [00:27:19] Speaker 03: So that was the EEO event and that's what the district court found as well. [00:27:37] Speaker 03: before I run out of time I'd like to point the court to it had a question when I was up the first time about where it is that this applies to everyone including Mr. Scott and all the other super all the other managers and that's at page 14 of our opening brief well the Scott is [00:28:22] Speaker 03: Do you disagree with his citation? [00:28:25] Speaker 03: I understand what he's saying. [00:28:28] Speaker 03: I don't think that it applies in this case [00:28:52] Speaker 03: The evidence, the totality of the circumstances here, the totality of the evidence with the hostility of Cunningham towards Ms. [00:29:01] Speaker ?: Ferrara and then the fact that nobody, even people who are at the same or higher level than Ms. [00:29:13] Speaker ?: to the terminals where it's not supposed to be. [00:29:16] Speaker 03: And with respect to the evidence of what happened to the binder, that's at page 41 of our brief, where it lists the facts, and those facts are based on admissions from the TSA and the request for admissions. [00:29:36] Speaker 02: Is there an affidavit in the file that shows that Scott, in fact, lost the binder? [00:29:43] Speaker 03: there's I don't I don't believe there's an affidavit in the file your honor but there are admissions from TSA that one Scott had the binder and two they don't they don't know what happened after Scott had the binder there's no determination that it ever was returned there's no determination that anybody ever found it and that's a page 42 41 and 42 where in the brief where we talk about the factual basis for [00:30:12] Speaker ?: or the facts about Mr. Scott. [00:30:14] Speaker ?: And again, he was not punished. [00:30:17] Speaker ?: You know, Ms. [00:30:18] Speaker ?: Richards, the one who actually received and signed for the spot SOP, she signed for it. [00:30:26] Speaker ?: She sent the employee over, the other, the TSO over to Ms. [00:30:31] Speaker ?: Ferrara's terminal to deliver it to her. [00:30:34] Speaker 03: Ms. [00:30:34] Speaker 03: Ferrara never signed for that. [00:30:36] Speaker 03: Ms. [00:30:36] Speaker 03: Richards signed for that, and she was responsible for it. [00:30:40] Speaker 03: Again, no punishment towards her. [00:30:43] Speaker 03: And just in summation, your honor, come running out of time again. [00:30:46] Speaker 03: I'd just like to point out that when you look at the totality of the circumstances in the light most favorable to my client, I think it's pretty clear that there are material disputed facts that should allow my client to bring her case to adjourn. [00:31:00] Speaker 03: Thank you.