[00:00:20] Speaker 03:
Thank you.

[00:00:21] Speaker 03:
All right, so you can keep answering questions.

[00:00:45] Speaker 02:
The key critical issue in this appeal is whether or not the district court erred when it refused to follow the continuing violations doctrine as it applied to acts of discrimination, hostile work environment, and retaliation between the years 2009 and 2014.

[00:01:01] Speaker 02:
In 2007, Ms.

[00:01:04] Speaker 02:
Carr filed an EEO petition with the Bureau alleging that she was subjected to inappropriate comments around the time of President Obama's election.

[00:01:14] Speaker 02:
she requested to be removed from the area

[00:01:44] Speaker 02:
Once she complained to EEO, then her hostile working environment increased.

[00:01:49] Speaker 02:
She was bounced around from department to department.

[00:01:52] Speaker 02:
She didn't have a steady supervisor, so she wasn't getting performance.

[00:01:56] Speaker 02:
Evaluations were affecting her opportunities for advancement.

[00:01:59] Speaker 02:
She had a work-related injury where the Bureau was aware of her work-related accommodations, and instead of abiding by those accommodations, she was disciplined, or she was chastised for having to go to doctor's appointments, or made to

[00:02:23] Speaker 03:
harassment over the years

[00:02:58] Speaker 03:
She had not previously filed AEO complaints about the other things that were going on.

[00:03:06] Speaker 03:
She filed it in 2015 along with her termination, correct?

[00:03:09] Speaker 03:
That's correct.

[00:03:10] Speaker 03:
So the issue is if they were discreet, then she would have to exhaust those.

[00:03:18] Speaker 03:
Now that's not to say

[00:03:29] Speaker 03:
claim left at this point.

[00:03:31] Speaker 03:
But you're trying to argue that these acts that occurred in between, that she exhausted on those as well.

[00:03:44] Speaker 03:
But my question, I guess, would be on trying to sort out on this.

[00:03:50] Speaker 03:
I think that the

[00:04:05] Speaker 03:
But didn't you have to exhaust those discrete acts?

[00:04:10] Speaker 02:
Well, not if they're all related to the original act.

[00:04:13] Speaker 02:
The original act was that she was subjected to a hostile work environment because of her race.

[00:04:18] Speaker 02:
And she was trying to be removed from the hostile work environment.

[00:04:22] Speaker 02:
And in fact, she did have an EO claim addressing a hostile work environment.

[00:04:27] Speaker 02:
to abide by the terms of that agreement.

[00:04:30] Speaker 02:
So I think it would be inconsistent with the objective of Title VII to require a person who is subjected to a hostile work environment to go back and file an EEO claim every time the Bureau fails to respond to what they agreed to respond to or every time they do what we anticipate.

[00:04:47] Speaker 02:
in response to an EEO charge, which is to retaliate against the person for filing that charge.

[00:04:51] Speaker 02:
I think that's inconsistent with the objective of Title VII, which seeks to protect the applicant from all of these working conditions that start from the onset.

[00:05:02] Speaker 02:
Ms.

[00:05:02] Speaker 02:
Carr did go back to EEOC when they breached the agreement, but the Bureau, instead of complying with the terms of the agreement, she was continued to be subjected to this hostile work environment.

[00:05:23] Speaker 02:
And again, that's another factual issue, and that is because the EEO failed to consider, although the EEO chose not to include these other allegations in their complaint.

[00:05:34] Speaker 01:
So how is the hostile work environment claim before us?

[00:05:39] Speaker 02:
What we're arguing is that the EEO, in addition to the two tried positive acts that the EEO picked up, there should have been a factual

[00:05:50] Speaker 02:
the Bureau was neglecting their duties to not pick up these claims that related from the original complaint.

[00:05:59] Speaker 02:
And I can point you to

[00:06:27] Speaker 02:
exhaustion as to all allegations of discrimination that either fail within the scope of the EEOC's actual investigation or which can be reasonably expected to grow out of the charge of discrimination.

[00:06:37] Speaker 02:
The only reason that we are limited to those two items here is because the EEO determined that those were the only two items that Ms.

[00:06:46] Speaker 02:
Clark could bring before the court.

[00:06:49] Speaker 02:
And we were not allowed to do a factual determination as to whether or not the EEO was remiss in those duties because that cause of action was dismissed without prejudice.

[00:06:58] Speaker 02:
So there was no discovery.

[00:07:18] Speaker 02:
also raised in arguments, more so in the arguments pertaining to the motion to dismiss because the arguments related to the motion for summary judgment were related to those two.

[00:07:40] Speaker 03:
case for the Title VII.

[00:07:44] Speaker 03:
I note that there was a statement about one of the former supervisors told her that when she was downgraded in her evaluation that someone was out to get her

[00:08:13] Speaker 03:
I'm not sure exactly who it was told, said, give her downgraded.

[00:08:18] Speaker 03:
My question is, how is that evidence of discrimination based on race?

[00:08:27] Speaker 02:
Because that evidence just goes to the ongoing hostile work and environment that Ms.

[00:08:33] Speaker 02:
Carr was subjected to.

[00:08:34] Speaker 02:
That goes also to the retaliation that she was subjected to for filing this EEO complaint.

[00:08:39] Speaker 02:
But it also goes to race.

[00:08:42] Speaker 02:
American female in her.

[00:09:03] Speaker 02:
The Bureau does deny that they were aware of those allegations.

[00:09:06] Speaker 02:
However, any information that the Bureau has attributed to the decision-makers, so they would all have the same information.

[00:09:14] Speaker 02:
It's not actual notice or knowledge.

[00:09:16] Speaker 02:
It's constructive notice.

[00:09:19] Speaker 03:
It would seem on Mr. Cayetano, I think, or Mr. Cayamano,

[00:09:27] Speaker 03:
He stated, it seems like it's undisputed in the record that he did not know of Ms.

[00:09:34] Speaker 03:
Carr's prior EEO activity because she doesn't respond to anything.

[00:09:40] Speaker 03:
I mean, that he just was, it was slipped through the cracks and it was incompetent.

[00:09:46] Speaker 03:
So,

[00:09:54] Speaker 02:
says that this has never happened before.

[00:09:56] Speaker 02:
But the general process is when you request outside employment, it hits the computer, they make a decision, and they get right back.

[00:10:03] Speaker 03:
No one could- Need to make the inference from everything else that since it never- that even though he says that he didn't know and that- but that somehow there's a lot of smoke here.

[00:10:31] Speaker 02:
that the jury should have been allowed to make the inferences about whether or not Mr. Carmine, I don't doubt that he was being truthful then because he was truthful in deposition.

[00:10:40] Speaker 02:
He said, I don't know how this happened because it never happens.

[00:10:42] Speaker 02:
So the fact that it's happening to someone who is complaining about race discrimination and a hostile work environment would raise a red flag that maybe this happened because somebody above Mr. Carmine, a decision maker,

[00:11:26] Speaker ?:
of candor is basically, that's an automatic dismissal, as opposed to some of the other things.

[00:11:33] Speaker 03:
You can be poorly behaved, you can show bad judgment, you can get in a fight, you can get drunk, you can do any number of things, and that might show bad judgment, but lack of candor is something that goes to the very heart of people that arrest people in testifying court against

[00:12:06] Speaker 02:
investigation, the lack of candor, allegations were not substantiated by the fact-finders.

[00:12:12] Speaker 02:
The ultimate decision-maker just decided on her own that she lacked candor, not based on any investigation, just because that's what she decided to do.

[00:12:20] Speaker 02:
And I think that that screams of pretext.

[00:12:22] Speaker 02:
As for the comparators, I think that what these other Caucasian male agents were doing was far worse than what Ms.

[00:12:29] Speaker 02:
Carr was accused of.

[00:12:30] Speaker 02:
And what Ms.

[00:12:30] Speaker 02:
Carr was accused of is disputed.

[00:12:32] Speaker 03:
But we can't make that

[00:12:45] Speaker 03:
agent can do.

[00:12:47] Speaker 03:
Don't we have to?

[00:12:48] Speaker 03:
Isn't that something that they can decide as opposed to, uh, you get in a fight or you, you know, you drunk drive or you do any other thing?

[00:12:59] Speaker 02:
But if the agency's investigation arm that was tasked to finding whether or not Ms.

[00:13:04] Speaker 02:
Carr lack-handered said, no, she did not lack-hander, then

[00:13:20] Speaker 03:
on the lack of candor, not all the other things.

[00:13:25] Speaker 02:
That is why my position is we don't even get to the summary judgment if we find that the district court erred in granting the motion to dismiss because a lot of the evidence that would have supported the motion for summary judgment was excluded because of the ruling on the motion to dismiss when the court found that there was no continuing violation.

[00:13:41] Speaker 02:
But I do agree.

[00:13:42] Speaker 03:
Do you have any time for a rebuttal?

[00:13:43] Speaker 02:
I do.

[00:13:44] Speaker 01:
Thank you.

[00:13:45] Speaker 01:
Ms.

[00:13:45] Speaker 01:
Jordan, I just had one technical follow up to Judge Callahan's question.

[00:13:54] Speaker 01:
I mean, obviously news reports and other things, but what's your intent to get it in?

[00:13:59] Speaker 02:
Our intent would be to bring the agency in for questioning about what happened in their process or the decision makers.

[00:14:05] Speaker 02:
We have been in contact post a pickup post, mostly for summary judgment, with some of the decision makers in those cases.

[00:14:12] Speaker 01:
Okay, and you contend that's enough to provide a basis on summary judgment?

[00:14:16] Speaker 01:
Yes, sir.

[00:14:27] Speaker 03:
if I just wanna.

[00:15:09] Speaker 03:
I apologize, we're ready to hear from the government.

[00:15:23] Speaker 03:
Good morning.

[00:15:28] Speaker 04:
Good morning.

[00:15:29] Speaker 04:
Erin Choi, Assistant U.S.

[00:15:30] Speaker 04:
Attorney on behalf of the Attorney General.

[00:15:33] Speaker 04:
I want to begin by addressing a few of my colleagues' points.

[00:15:37] Speaker 04:
First, my colleague discussed discrete acts as well as

[00:15:51] Speaker 04:
According to Morgan, the court explained that the two are distinct.

[00:15:57] Speaker 04:
Hostile work environment, because of their very nature, are repeated conduct and each individual allegation or act is

[00:16:12] Speaker 04:
are individual one-time occurrences that occur on the day it happened.

[00:16:20] Speaker 04:
They're distinct acts that on its own are actionable.

[00:16:24] Speaker 04:
And if you look at the allegations that Ms.

[00:16:27] Speaker 04:
Carr is trying to bring that date back to 2009 all the way through 2014, they are all discrete acts that are time barred because she never administratively

[00:16:43] Speaker 03:
with you, hypothetically.

[00:16:45] Speaker 03:
I'm not saying the panel does or whatever, but just assuming that I agree with you.

[00:16:50] Speaker 03:
It still seems that all of those things would be admissible on some level regarding what's left on the Title VII or any of the others in terms of assessing the prima facie case or the pretext as far as that goes.

[00:17:09] Speaker 03:
So your best argument to

[00:17:17] Speaker 03:
from everything else that has happened.

[00:17:20] Speaker 03:
And I don't think you can deny that there's a lot of

[00:17:53] Speaker 04:
2014 to the discrete acts that were accepted by the EEO, which is the termination and the inaction on the outside employment request.

[00:18:05] Speaker 04:
She has not shown how they are all related acts that support a discrimination claim for the... Well, let's go on the Title VII.

[00:18:15] Speaker 03:
Okay, let's go on the Title VII.

[00:18:17] Speaker 03:
And that, obviously, you've got to establish the prima facie case.

[00:18:34] Speaker 03:
Okay, you've got that.

[00:18:35] Speaker 03:
Then you have this incident where the person says, I don't know, we never lose these, we never lose these requests for outside employment, but somehow we lost yours.

[00:18:48] Speaker 03:
And then you have...

[00:18:55] Speaker 03:
but OPR's not to be satisfied on that.

[00:18:58] Speaker 03:
They say they don't find it substantiated.

[00:19:01] Speaker 03:
And then you have these texts where I think those pretty much come in that it looks like the contractor threatened her and she threatened him and all of that.

[00:19:15] Speaker 03:
So I'm just wondering if maybe her best case

[00:19:35] Speaker 03:
that's important, taking 25 pages to explain her decision based on subtle variations of stories.

[00:19:42] Speaker 03:
Could a jury infer looking at that?

[00:19:45] Speaker 03:
It's not like they're so mutually exclusive.

[00:19:49] Speaker 03:
It's more subtle.

[00:19:51] Speaker 03:
Is she entitled to go in front of a jury to decide if her variations amounted to lack of candor or will get to make the final decision?

[00:20:07] Speaker 04:
was conducted.

[00:20:08] Speaker 04:
That doesn't need to go to the jury.

[00:20:11] Speaker 04:
It can be decided on the record that is presented before this court, which is that Ms.

[00:20:17] Speaker 04:
Carr, uh, Assistant Director Will did this investigation, and she honestly believed that there was a finding of lack of candor, and that was the basis for her deciding to terminate Ms.

[00:20:30] Speaker 04:
Carr.

[00:20:30] Speaker 04:
What is your opinion?

[00:20:31] Speaker 03:
What if, but Ms.

[00:20:33] Speaker 03:
Carr says, hey,

[00:20:37] Speaker 03:
And it's not like, what if she contends, what if it's her contention that, I didn't know he wasn't working on his uncle's license.

[00:20:51] Speaker 03:
And Ms.

[00:20:51] Speaker 03:
Carr seems to think, well, you should have said that in the first place, as opposed to just saying,

[00:21:14] Speaker 03:
actually gets to be the final decision maker here.

[00:21:17] Speaker 04:
Because ultimately the analysis for discrimination under Title VII under the McDonnell Douglas Factor burden shifting framework is that you have to look at the state of mind of the deciding official when they made the personnel action.

[00:21:32] Speaker 04:
Here it was the termination.

[00:21:35] Speaker 04:
Ms.

[00:21:36] Speaker 04:
Will, Assistant Director Will, explained

[00:21:43] Speaker 04:
contradictory stories gave her reason to think that Ms.

[00:21:48] Speaker 04:
Carr was not being truthful under oath.

[00:21:52] Speaker 04:
And so that was the basis of her decision.

[00:21:55] Speaker 04:
I think we are going into the analysis of pretext, but if you want to look at pretext, you have to look at whether or not the deciding official honestly believed.

[00:22:05] Speaker 03:
But if we believed that it was a tribal issue,

[00:22:15] Speaker 04:
I don't get to that point of whether or not there was a tribal issue of whether there was a lack of candor because you have to look at what the deciding official thought was happening that motivated her

[00:23:09] Speaker 04:
But if we look at pretext, the plaintiff has a higher burden of proof that he or she needs to bring in.

[00:23:19] Speaker 04:
And that is that the action has to be, they have to bring in specific and substantial evidence that not only the deciding

[00:23:35] Speaker 04:
of credence and also that there was discriminatory or

[00:24:08] Speaker 01:
through indirect evidence and inference.

[00:24:38] Speaker 04:
And the court did say in Morgan that they could be considered as background information, but those acts on them.

[00:25:05] Speaker 04:
even if they were to be considered as background information, they do not go to support that there was any reason to think that Assistant Director Will had any type of discriminatory animus or retaliatory animus towards Ms.

[00:25:21] Speaker 04:
Carr in deciding to terminate her.

[00:25:23] Speaker 04:
If you look at the individuals involved in those personnel actions dating back to 2009 to 2014, none of them involved Assistant Director

[00:25:55] Speaker 01:
What's your take on that constructive notice issue, where is the whole office charged with knowledge of the events that happened in that office, even if the particular decision maker doesn't have knowledge of it?

[00:26:10] Speaker 04:
First, my colleague did not cite any legal authority to support that constructive knowledge would apply in cases of discrimination or retaliation, but even if we were to consider

[00:26:26] Speaker 04:
courts have said that in those cases, usually it involved a subordinate who was somehow involved in the decision-making process or the investigation process, which eventually leads to a challenged personnel action.

[00:26:44] Speaker 04:
Here, none of those facts are present.

[00:26:47] Speaker 03:
Well, I'm asking for the opposite cat's paw here, so I'm not sure the cat's paw works, but I do find it a little

[00:27:01] Speaker 03:
records.

[00:27:03] Speaker 04:
So, I think, I mean, that gets us into speculation that just because they have access to information, we have, you know, tests or statements under oath by Assistant Director Will and Unit Chief Kaimano saying that they did not know of her protected characteristics at different points.

[00:27:24] Speaker 04:
But, you know, for example, Unit Chief Kaimano didn't know at all until

[00:27:31] Speaker 04:
process, and he was contacted by EEO.

[00:27:35] Speaker 04:
So he did not know, and there's no basis.

[00:27:37] Speaker 03:
Well, I think it's a little more believable in a way that Mr. Kimano, he's a much lower person than Ms.

[00:27:46] Speaker 03:
Will, it would seem.

[00:27:47] Speaker 03:
And he seems to have a much more administrative type of job.

[00:27:52] Speaker 03:
Ms.

[00:27:52] Speaker 03:
Will's pretty high up there in OPR, and it's a little bit

[00:28:10] Speaker 03:
back and forth, and that's in the record that the LA office didn't think that there was a substantiation of her lack of candor, right?

[00:28:22] Speaker 03:
No, Your Honor, and I do want to correct that.

[00:28:24] Speaker 03:
Okay, correct.

[00:28:25] Speaker 04:
So the inspection division is tasked with conducting investigations.

[00:28:31] Speaker 04:
That's all that they do.

[00:28:33] Speaker 04:
Even though Ms.

[00:28:39] Speaker 04:
field office suggesting that they looked into certain allegations and they found that these allegations were unsubstantiated.

[00:28:47] Speaker 04:
It was never the job and never written even in that document itself that the inspection division or the LA field office did not find Ms.

[00:28:55] Speaker 04:
Card to have lacked candor.

[00:28:58] Speaker 04:
That determination is only made by OPR.

[00:29:02] Speaker 04:
Assistant Director Will, after reviewing the information she sent to

[00:29:34] Speaker 03:
everything.

[00:29:34] Speaker 03:
I'm hearing you argue, Zane, her determination of lack of candor is untouchable unless somehow Ms.

[00:29:43] Speaker 03:
Carr can show that it was based on discriminatory intent.

[00:29:58] Speaker 03:
It does not amount to discriminatory intent.

[00:30:05] Speaker 04:
Ms.

[00:30:05] Speaker 04:
Carr would have to show two things to undermine Ms.

[00:30:10] Speaker 04:
Carr.

[00:30:10] Speaker 04:
I would not say Assistant Director Will is untouchable.

[00:30:14] Speaker 03:
There are two ways to...

[00:30:29] Speaker 04:
So one way is to show that Miss Assistant Director Will's reasoning was objectively false.

[00:30:39] Speaker 04:
What she had written in the termination letter was objectively false.

[00:30:43] Speaker 03:
And if, you know, I were to admit it to someone, I'm going after Miss Carr because she's an African American, which that's probably not, I would like to think that's not something

[00:30:58] Speaker 04:
But that could be an example of calling into question the credence of Assistant Director Will's reasoning for terminating Ms.

[00:31:10] Speaker 04:
Carr, or even circumstantial evidence, if it's specific and substantial, showing that there was no way that Assistant Director Will could have honestly believed that Ms.

[00:31:24] Speaker 04:
Carr

[00:31:46] Speaker 03:
about what she knew about his status as a contractor, right?

[00:31:53] Speaker 04:
Yes.

[00:31:54] Speaker 04:
And she made those representations under oath.

[00:32:26] Speaker 00:
Act in Title VII.

[00:32:28] Speaker 00:
Now, is our review

[00:33:04] Speaker 04:
and the Rehabilitation Act, as well as Title VII.

[00:33:09] Speaker 04:
And so I don't know exactly on point whether or not that was explicitly

[00:33:46] Speaker 00:
That's why I'm asking the question because I'm not sure what kind of claim this is exactly in terms of, you know, the standard of review.

[00:33:54] Speaker 04:
The standard of review for the agency's decision to terminate Ms.

[00:33:59] Speaker 04:
Carr?

[00:34:00] Speaker 04:
Well, then I would refer back to

[00:34:17] Speaker 04:
retaliatory reason for its personnel decision, which the, which Assistant Director Will explained in her termination letter, as well as Unit Chief Kaimano with regards to the administrative oversight that led to the inaction of her request for outside employment.

[00:34:35] Speaker 04:
And then,

[00:34:46] Speaker 04:
show that these decisions were objectively false and motivated by discrimination or retaliation.

[00:34:53] Speaker 04:
So it's a different standard in that sense for Title VII and Rehabilitation Act, Your Honor.

[00:35:20] Speaker 02:
knowledge is imputed to the decision-maker and that is Poland versus Chertoff.

[00:35:47] Speaker 02:
Northern District, California, 2015, 129 EFSA 3rd, 898.

[00:36:09] Speaker 02:
and some of the evidence that was submitted was excluded by evidentiary rulings because of the court's ruling on the motion to dismiss.

[00:36:15] Speaker 02:
That evidence should have been considered in the motion for summary judgment to show that there was possibly some bias in A.D.

[00:36:23] Speaker 02:
Will's decision to terminate Ms.

[00:36:26] Speaker 02:
Carr.

[00:36:28] Speaker 02:
And unless there are any questions, that is all that I have.

[00:36:30] Speaker 02:
We apparently don't have any questions.

[00:36:32] Speaker 02:
Thank you both for your argument in this matter.

[00:36:34] Speaker 03:
This will stand submitted.