[00:00:01] Speaker 05:
Good morning, everyone, and welcome to the Ninth Circuit.

[00:00:03] Speaker 05:
It's great to see everyone, both live and virtually.

[00:00:07] Speaker 05:
We have three cases on calendar today.

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One thing I always say when I preside is that in the Ninth Circuit there's no extra credit or bonus points for using all of your time.

[00:00:19] Speaker 05:
So if you've made your points and you're not getting any questions,

[00:00:24] Speaker 05:
It's OK to sit down.

[00:00:25] Speaker 05:
That's quite right.

[00:00:26] Speaker 05:
All right, so for the first case today, Parker, we've got some law students arguing.

[00:00:31] Speaker 05:
So first, thank you for stepping up to the plate.

[00:00:34] Speaker 05:
And thank you for, are you the supervisor, Ms.

[00:00:35] Speaker 05:
Davis?

[00:00:36] Speaker 05:
Thank you for doing that.

[00:00:37] Speaker 05:
We very much appreciate it.

[00:00:39] Speaker 05:
I see that you guys have split up your time 10 and 5.

[00:00:42] Speaker 05:
So what we're going to do, that's going to be a hard 10 and a hard 5.

[00:00:45] Speaker 05:
And what I mean by that is that, so first, who's going to argue first?

[00:00:51] Speaker 05:
OK, so you've got 10.

[00:00:54] Speaker 05:
You're not going to get more than 10.

[00:00:57] Speaker 05:
If you go nine, then he gets six.

[00:01:01] Speaker 05:
But we're not going to have a situation where the second person is panicking because the first person is going 13.

[00:01:05] Speaker 05:
And like, I did all this work.

[00:01:06] Speaker 05:
I'm going to get two minutes argument.

[00:01:08] Speaker 05:
No.

[00:01:08] Speaker 05:
You're going to get 10.

[00:01:08] Speaker 05:
You're going to get five.

[00:01:09] Speaker 05:
We're going to keep you that time.

[00:01:11] Speaker 05:
All right.

[00:01:12] Speaker 05:
And with that, go ahead and proceed, counsel.

[00:01:21] Speaker 00:
Good morning.

[00:01:21] Speaker 00:
Your honors may it please the court JP Elberfeld on behalf of plaintiff appellant James Parker under the supervision of Katherine Davis and the UCI law appellate litigation clinic.

[00:01:30] Speaker 00:
I'm here with my colleague Mr. Neil Vermani.

[00:01:33] Speaker 00:
Again, we'd like to reserve five minutes for rebuttal.

[00:01:35] Speaker 00:
You may proceed.

[00:01:36] Speaker 00:
The single controlling issue in this case is whether Mr. Parker satisfied the plausibility pleading standard under this court's holding in Shepard versus David Evans and Associates and the corresponding case in the Supreme Court of Sworkowitz versus Surima N.A.

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That answer is a clear yes and therefore this court should reverse.

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Shepard and Sworkowitz are paramount and control this case and those precedents are consistent with Ashcroft versus Iqbal

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and state that Mr. Parker is not required to allege the, quote, detailed factual allegations under Rule 882.

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Shepard, in particular, was this court's post-Twombly, post-Iqbal, and post-Workowitz interpretation

[00:02:20] Speaker 00:
of the correct pleading standard.

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That case involved only a two and a half page complaint consisting of 17 paragraphs, only eight of which were operative for the ADEA claim.

[00:02:32] Speaker 00:
This court reversed in favor of the plaintiff Mrs. Sheppard when she alleged that she was at least 40 years old, her performance was satisfactory or better, she was discharged from her position, and five younger comparators kept their jobs.

[00:02:46] Speaker 00:
She also noted that, quote, age was a determining factor in the decision to terminate her.

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But she didn't allege the exact ages of her comparators, yet this court concluded that constituted a, quote, entirely plausible scenario of employment discrimination.

[00:03:02] Speaker 03:
So here has your client made out an allegation of a substantial or sufficiently substantial age difference between himself and the other candidates, and can you tell me why?

[00:03:15] Speaker 00:
Yes, he has, Your Honor, because in Shepard, the age, the substantially younger question was not addressed by this court.

[00:03:24] Speaker 00:
The only question was whether the comparators were younger and whether the allegedly discriminatory employment action was made on the basis of age.

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So the difference in age is an irrelevant question at the 12b6 stage.

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And Mr. Parker affirmatively satisfies that standard here.

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He alleges he was at least 40 years old, and therefore he was part of the protected class under the ADEA.

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And in addition, he was perceived as disabled under the Rehabilitation Act and the ADA.

[00:03:55] Speaker 04:
So you're saying that if he did allege that they were at least seven years younger, but you're saying it would have been sufficient

[00:04:03] Speaker 04:
and we should find that it would be okay as long as he alleged that they were younger?

[00:04:08] Speaker 00:
Yes, they simply have to be younger.

[00:04:09] Speaker 00:
Mr. Parker has to allege that he is part of the protected class under the ADEA and that the comparators were younger than him and that the allegedly discriminatory action was taken on the basis of age.

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He does so because he applied for this job and he was qualified.

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He previously held this exact same position with a fully successful rating.

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That's at paragraphs 15, 17, and 18 of the complaint.

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And he was informed of his non-selection at paragraphs 16 and 28.

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And non-disabled and younger candidates were ranked above him.

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That's at paragraphs 28 through 46.

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He also, point blank, stands at paragraph 15, that based on the flawed and unlawful perception of his disability and of his age, he was denied the position he sought despite his superior qualifications.

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Those qualifications consisted of his allegation that he was the most qualified and best fit, but also his decades of experience on the Columbia River and other bodies of water operating a large variety of boats for 20 years at paragraph 24.

[00:05:17] Speaker 00:
In the interview, he informed the panel of this experience, saying that he had been on the river his entire life, at paragraph 25, but despite this, the panel noted that the other younger and non-disabled candidates had, quote, marine knowledge, at paragraphs 68 and 28, even though Mr. Parker alleges that no other candidate had experience on the Columbia River or navigating it.

[00:05:40] Speaker 00:
That's at 34, 39, and 44, the complaint.

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In particular, Mr. Paul Gunas, who was ranked second out of all of the comparators, had no experience with small boats and shallow waters and had worked 25 years in human resources and labor relations.

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Yet the panel cited nonspecific and conclusory safety concerns without any further factual allegations

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and Parker disputes the fact that there were any legitimate safety concerns with his record.

[00:06:10] Speaker 00:
None of the panelists had ever ridden in a boat with Mr. Parker, and his closest coworker, Mr. Jesse Allen, recalled only one incident where Mr. Parker and Allen had to go out and then return for Mr. Parker's diabetes medication, but otherwise Jesse Allen gave a positive review of Mr. Parker, and he said he would work with him again at paragraphs 82 through 84.

[00:06:33] Speaker 00:
There's also direct evidence here of discriminatory intent and actions.

[00:06:39] Speaker 00:
Mr. Parker alleges specifically at paragraph 71 that the panelists emphasized safety concerns, quote, related to his disability.

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And he also notes that Guy questioned his ability to concentrate at paragraph 75.

[00:06:57] Speaker 03:
Could you briefly address for me your argument regarding what you say is the district court's improper noticing of disputed facts?

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What are the disputed facts that the district court relied upon improperly in its order, in your view?

[00:07:14] Speaker 00:
The district court's analysis stated that Mr. Parker had failed to connect the allegedly discriminatory action and his inclusion in the class.

[00:07:26] Speaker 00:
I think it's clear from the analysis of the district court that it judicially noticed the entire EEOC record and took his safety record as a legitimate reason for his non-selection.

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But Mr. Parker refutes the legitimacy of those safety concerns, which creates

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because he refutes the facts within the EEOC record under the judicial notice doctrine in this court, the only thing that is proper for this court to notice is the existence of those EEOC records and not the truth of the matters within them.

[00:07:58] Speaker 04:
Okay.

[00:07:58] Speaker 04:
So you've talked about paragraph 71 of the complaint.

[00:08:04] Speaker 04:
Why would paragraph 71 satisfy Twombly and Iqbal?

[00:08:09] Speaker 04:
It says,

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Almost all panelists emphasize the safety concerns related to plaintiff's disability.

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That's pretty conclusory.

[00:08:18] Speaker 04:
And then it says, alleging that his crew did not feel safe riding plaintiff's boat.

[00:08:23] Speaker 04:
Wouldn't there have to be more in there to satisfy Twombly and Iqbal?

[00:08:27] Speaker 04:
Just the bare statement that crew members didn't feel safe riding in his boat by itself doesn't seem to me to have anything to do with disability.

[00:08:37] Speaker 00:
The operative word, I think, of that allegation, Your Honor, is emphasized, and Mr. Parker was in the interview itself, and so that's a factual allegation he is making that the panelists had, and he says they emphasized safety concerns.

[00:08:54] Speaker 00:
He's saying that they said things in the interview which reasonably implicated his disability, and he thought that they were

[00:09:05] Speaker 00:
He concluded and alleged that because they emphasize safety concerns that there were comments made during the interview that reasonably implicate his diabetes diagnosis.

[00:09:17] Speaker 04:
But for the second part of that, that his crew didn't feel safe riding him in his boat, there's nothing about that that ties to disability or age, right?

[00:09:35] Speaker 00:
If the, well, it may not be directly related to age or disability, that second portion of the allegation in paragraph 71.

[00:09:46] Speaker 00:
However, again, I would just emphasize that the emphasize was an active verb, and Mr. Parker's making a factual allegation in the entirety of paragraph 71.

[00:09:57] Speaker 00:
The panel has no further questions.

[00:09:59] Speaker 00:
I'll conclude with this.

[00:10:00] Speaker 00:
Mr. Parker pleads that his interviewers knew he was well qualified for the position.

[00:10:07] Speaker 00:
He previously held the same exact job with a fully successful rating for an entire calendar year.

[00:10:13] Speaker 00:
They knew he resigned because of a medical diagnosis, and he alleged they made comments reasonably implicating his age or medical condition during the interview.

[00:10:23] Speaker 00:
Despite his decades of experience and superior qualifications in comparison to other applicants, less experienced, non-disabled, and younger candidates were selected for the position over him.

[00:10:36] Speaker 00:
Under Sheppard and Sworkowitz, and consistent with the broad remedial purposes of Title VII and the ADEA, that is all he is required to do under Rule 882.

[00:10:46] Speaker 00:
Therefore, this Court should reverse.

[00:10:48] Speaker 00:
Thank you very much.

[00:10:49] Speaker 05:
Thank you, Counsel.

[00:10:51] Speaker 05:
So just for clarification, you're going to not stand up now and save it for rebuttal after government council.

[00:10:58] Speaker 05:
OK, great.

[00:10:58] Speaker 05:
Then we'll go for five and a half for rebuttal.

[00:11:02] Speaker 05:
You saved 30 seconds.

[00:11:04] Speaker 05:
All right.

[00:11:06] Speaker 05:
Ms.

[00:11:06] Speaker 05:
Schweiner, you may proceed.

[00:11:07] Speaker 05:
Can you hear us OK?

[00:11:09] Speaker 02:
I can.

[00:11:10] Speaker 05:
You may proceed.

[00:11:12] Speaker 02:
Thank you, Your Honors, and may it please the court.

[00:11:14] Speaker 02:
My name is Diane Schweiner.

[00:11:15] Speaker 02:
I represent the Department of the Navy in this case.

[00:11:19] Speaker 02:
And I think that the issues properly before the court are literally just two simple issues, and that is whether Mr. Parker has properly pled his complaint for a regarded as disability claim and whether he's properly pled his complaint for an age discrimination claim under the ADEA.

[00:11:40] Speaker 02:
Based on the conclusory and nonfactual statements that he made in his complaint, I submit that he has not met that pleading standard.

[00:11:51] Speaker 02:
There's been a lot of talk in appellants briefs about the pleading standard, accusations that the district court applied the wrong standard and included a motion for summary judgment standard or the McDonald Douglas burden shifting standard.

[00:12:08] Speaker 02:
I don't believe that's true.

[00:12:11] Speaker 02:
In all of the briefing by the government, both in the motion to dismiss at the lower court and in the answering brief by a previous AOSA on this case, the pleading – the Iqbal and the Rule 8 pleading standards were the ones that were argued and used.

[00:12:28] Speaker 02:
In the district court's order, yes, the judge did mention some – the McDonnell Douglas burden-shifting framework when she was describing cases

[00:12:38] Speaker 02:
that were describing the elements of the causes of action.

[00:12:43] Speaker 04:
So counsel I'm looking for example at ER 12 where the district court said accordingly this court presumes that the alleged age difference between plaintiff and Mr. Gunas who is ultimately selected for the position is insubstantial.

[00:13:03] Speaker 04:
How can how can the district court do that on a motion to dismiss where

[00:13:08] Speaker 04:
The allegation is they're more than seven years younger and I wasn't selected in part because of my age.

[00:13:20] Speaker 04:
How can the district court on a rule 12 motion find that the age differential was insubstantial?

[00:13:33] Speaker 02:
The reason I believe the court was allowed to do that, Judge Bennett, is because she was relying on the France case, which is also a case relied upon by appellant in this case.

[00:13:44] Speaker 02:
And the France case made it clear that there needs to be a 10-year difference or more for the age difference to be considered substantial under the ADEA.

[00:13:56] Speaker 02:
The France case itself even said,

[00:13:59] Speaker 02:
quote, were the eight-year difference all the evidence before us, it would not be sufficient to satisfy the fourth prong.

[00:14:08] Speaker 04:
So does that mean that someone who sues for age discrimination has to know definitively what the age is of the person who was selected?

[00:14:20] Speaker 02:
I think they have to

[00:14:22] Speaker 02:
allege more than actual conclusions here.

[00:14:26] Speaker 04:
What if they don't know the person's age?

[00:14:28] Speaker 04:
What if they say at least seven, but they don't know what the person's date of birth is?

[00:14:33] Speaker 04:
They believe they're substantially younger.

[00:14:35] Speaker 04:
They're at least seven years younger, but they don't know what their date of birth is.

[00:14:39] Speaker 04:
So do they automatically lose on 12B because they haven't found out the person's date of birth, so they couldn't allege that they were more than 10 years younger?

[00:14:47] Speaker 02:
I think that they would have to allege sufficient facts to suggest that it meets the elements of the ADEA.

[00:14:52] Speaker 02:
Here, the problem with the appellant's complaint is that he specifically says

[00:14:57] Speaker 02:
that they were – he mentions the word seven years.

[00:15:00] Speaker 02:
They were at least seven years younger.

[00:15:02] Speaker 04:
But at least.

[00:15:03] Speaker 02:
Could be more.

[00:15:05] Speaker 02:
That's true.

[00:15:06] Speaker 02:
But the problem is – and then we get into the extrinsic evidence argument – there was some evidence that possibly he wasn't – they weren't

[00:15:17] Speaker 02:
more than seven years older.

[00:15:19] Speaker 02:
So, or younger, excuse me.

[00:15:21] Speaker 02:
So the problem is, you know, he put, that's the only fact he alleged in his age discrimination complaint was the seven year difference.

[00:15:28] Speaker 02:
And the judge relied on the fact that case law says it needs to be 10 or more.

[00:15:33] Speaker 02:
She gave him leave to amend where he could have corrected that.

[00:15:37] Speaker 02:
He could have said,

[00:15:38] Speaker 02:
Something different in an amended complaint, but he waived his right to amend his complaint and to clarify that So now this court is is simply left with his original complaint that he didn't amend so I do think that the judge in the district court was relying on the France case and Which itself says that even an eight-year difference isn't enough?

[00:16:04] Speaker 05:
Well hold on it doesn't it say it's insufficient to make a prima facie case that doesn't mean it's not

[00:16:08] Speaker 02:
as a matter

[00:16:28] Speaker 05:
Discussing that in the in the context of a motion for summary judgment or whether it would also satisfy I think but the full set but the full sentences were the eight-year age difference all the evidence before us And this is a motion to dismiss.

[00:16:43] Speaker 05:
I mean it seems to me.

[00:16:44] Speaker 05:
It's very dangerous to Draw lines from a summary judgment case when we're dealing with a motion to dismiss.

[00:16:50] Speaker 05:
I mean am I reading francing correctly I

[00:16:52] Speaker 02:
No, you were reading it correctly, Judge Collins.

[00:16:56] Speaker 02:
Yes, I think that the district court just thought that wasn't enough to simply have one conclusory statement in the complaint that these people were at least seven years younger.

[00:17:09] Speaker 02:
So if I could, I'd like to go back to the regarded as disability claim, because that

[00:17:18] Speaker 02:
plaintiff – as the court mentioned earlier, I think the plaintiff just mentioned a series of conclusory statements in relation to his regarded-as theory.

[00:17:32] Speaker 02:
None of them actually relate to his diabetes

[00:17:38] Speaker 02:
There's no facts suggesting that anybody on the interview panel or the selecting official actually knew of his diabetes, actually made any comments in the interview or afterwards about his diabetes.

[00:17:52] Speaker 04:
Let's take a look at what your friends on the other side said with regard to the first part of paragraph 71 of the complaint.

[00:18:00] Speaker 04:
Almost all panelists emphasize the safety concerns related to plaintiff disability.

[00:18:07] Speaker 04:
Are you saying that the 12B standard required the complaint to quote what they said and that it wouldn't be enough to say the panelists emphasized safety concerns related to the disability?

[00:18:23] Speaker 04:
Why isn't this a short plain statement of the facts?

[00:18:27] Speaker 02:
because the plaintiff and his, or excuse me, the appellant and his complaint listed all kinds of facts about safety concerns, all the things that these individuals said in their EEO affidavits after the interview.

[00:18:43] Speaker 02:
None of the statements that he attributes to these individuals actually had anything to do with his disability or diabetes.

[00:18:52] Speaker 02:
They all had to do with safety concerns or him wrecking his car.

[00:18:56] Speaker 02:
of things like that.

[00:18:57] Speaker 02:
So it's a conclusory statement for the plaintiff to just simply add the words in paragraph 71 of his complaint related to P's disability.

[00:19:08] Speaker 02:
It's actually controverted by the extrinsic evidence that the judge properly admitted on the motion to dismiss and that was never objected to by the plaintiff.

[00:19:19] Speaker 04:
Okay, so it's controverted.

[00:19:22] Speaker 04:
Why is that relevant even if it were summary judgment?

[00:19:26] Speaker 04:
I mean, he would have had to say on summary judgment exactly what it was that was said, but why does he have to do that and complain?

[00:19:34] Speaker 04:
Even if this is inconsistent with some other evidence, how does that help you?

[00:19:38] Speaker 02:
When I say controverted, I don't mean that there is an actual dispute, Your Honor.

[00:19:42] Speaker 02:
I mean that there's nothing that the plaintiff has been able to point to at all to suggest that any of these interview panelists or the selecting official ever said anything about his disability.

[00:19:53] Speaker 02:
He only mentions safety concerns, and then he, in paragraph 71,

[00:19:58] Speaker 02:
adds this conclusory statement related to P's disability.

[00:20:02] Speaker 02:
I take that as his opinion that those statements that he has mentioned at length in the complaint or in the EEO phase were related to his disability, but none of them actually had anything to do with diabetes or his condition.

[00:20:17] Speaker 02:
They were all related to safety concerns.

[00:20:20] Speaker 02:
So I just think that's insufficient for

[00:20:22] Speaker 02:
the Twombly and the Iqbal standard.

[00:20:25] Speaker 02:
And let me just talk about that standard for a minute because council made a lot of comments in their briefing about the

[00:20:36] Speaker 02:
the Sherkowitz case, and this is a very problematic case that I believe has questionable validity, has been overruled by a lot of other parts of it, by other circuits and other... Well, hold on.

[00:20:48] Speaker 05:
This is a Supreme Court case.

[00:20:51] Speaker 05:
Is there a Supreme Court case that overrules it?

[00:20:53] Speaker 02:
Because if not, then... Well, there isn't, Judge Stone.

[00:20:58] Speaker 02:
But I do... What I wanted to say, though, was that when it is discussed by later Supreme Court cases, the Supreme Court

[00:21:06] Speaker 02:
has never once actually said that Twombly and Iqbal, which, by the way, came after the Schwarkowitz case, that they somehow don't apply to employment discrimination cases.

[00:21:19] Speaker 03:
You said a moment ago that you thought lots of parts of that case had been overruled.

[00:21:27] Speaker 03:
What parts of Schwarkowitz have been overruled by other Supreme Court cases?

[00:21:31] Speaker 02:
Not by the Supreme Court, Your Honor.

[00:21:34] Speaker 02:
Other district court cases and other circuits have questioned the validity.

[00:21:37] Speaker 03:
It can't be overruled by circuit cases.

[00:21:40] Speaker 02:
I understand.

[00:21:42] Speaker 04:
The Supreme Court has on occasion taken a dim view of our court saying that something they've done has been overruled when they haven't said it.

[00:21:54] Speaker 02:
Right.

[00:21:55] Speaker 02:
I guess what my point is, is that the Supreme Court has actually, as recently as September of 2024, one second here.

[00:22:11] Speaker 05:
I think if your point is that since this case, the Supreme Court has provided further guidance on how we read complaints, I think that's fair, is that you can say we can't read this case purely for this case.

[00:22:21] Speaker 05:
You have to read it through the lens of Twombly and Iqbal.

[00:22:24] Speaker 05:
Okay, fair.

[00:22:26] Speaker 05:
If that's your point, then I'm with you on that one.

[00:22:30] Speaker 02:
Yes.

[00:22:31] Speaker 02:
Okay.

[00:22:31] Speaker 02:
I was looking for the case that I was looking for.

[00:22:33] Speaker 02:
It's actually the Ninth Circuit, as recently as September of 2024, has addressed this issue in the Khorasani versus Mayorkas case.

[00:22:43] Speaker 02:
You know, where they're trying to square the Sworkowitz case with Twombly and Iqbal, which again came later.

[00:22:50] Speaker 02:
And all of the cases that address this, there's never been a time when the Supreme Court has said that the Twombly and the Iqbal standards go away.

[00:22:59] Speaker 02:
So I think the best that we can do with this pleading standard is the plaintiff in a complaint still has to meet the rule eight requirements, still has to satisfy Twombly and Iqbal.

[00:23:12] Speaker 02:
And here, I just don't think the plaintiff has done that.

[00:23:14] Speaker 02:
And just the fact that it's an employment discrimination case and the plaintiffs have raised this

[00:23:20] Speaker 02:
20-something-year-old Supreme Court case, I don't think changes that fact.

[00:23:26] Speaker 02:
He literally mentions one fact with regard to his age, and then the conclusions that he mentions with regard to his regarded as claim are just conclusory.

[00:23:38] Speaker 02:
He just says that he was proving a disability by the selecting official.

[00:23:43] Speaker 02:
Based on the flawed and unlawful perception of disability, he was denied the position.

[00:23:49] Speaker 02:
They perceived him as having diabetes.

[00:23:51] Speaker 02:
These are just conclusory statements, and I believe that Iqbal and Twambi and Rule 8

[00:23:56] Speaker 02:
require plausibility, not just a mere possibility that he is alleged to claim.

[00:24:03] Speaker 02:
It has to be plausible that these individuals didn't hire him because of his disability, because of his age.

[00:24:11] Speaker 02:
And I don't think he has sufficiently pled that.

[00:24:14] Speaker 02:
I wanted to also address the new argument that was raised by counsel in their briefing trying to allege a record of disability claim.

[00:24:26] Speaker 02:
I believe that claim has been waived.

[00:24:29] Speaker 02:
There's never been a time when plaintiff exhausted his administrative remedies trying to argue a record of disability under the Rehabilitation Act.

[00:24:37] Speaker 02:
He didn't put it in his complaint.

[00:24:39] Speaker 02:
He didn't put in his initial opening brief.

[00:24:41] Speaker 02:
So in addition to that, I don't think that the elements and sufficient pleading standards have been satisfied for a record of disability.

[00:24:52] Speaker 02:
And then lastly, I don't think that even though plaintiff is requesting leave to amend, I believe he has waived that right as well.

[00:25:00] Speaker 02:
The judge at the district court level granted him leave to amend his complaint.

[00:25:05] Speaker 02:
He chose not to do that.

[00:25:06] Speaker 02:
He jumped to the Ninth Circuit, and then at that point has never given an explanation to this court as to why he chose not to amend.

[00:25:16] Speaker 02:
If he had done that, we might have a better record here if this were up on appeal from an amended complaint.

[00:25:23] Speaker 02:
But unfortunately, we are left with the one complaint that he did do.

[00:25:26] Speaker 02:
So I think that if the court were to somehow address the leave to amend issue, it should be denied because he waived that right.

[00:25:35] Speaker 02:
And unless the court has any other questions, I will submit.

[00:25:40] Speaker 05:
All right.

[00:25:40] Speaker 05:
Thank you, counsel.

[00:26:03] Speaker 01:
Your Honours, in response to the questions regarding age difference... Go ahead and state your appearance first.

[00:26:09] Speaker 01:
Neil Vermani on behalf of the appellant, James Parker, Your Honours.

[00:26:13] Speaker 01:
Good morning.

[00:26:14] Speaker 01:
Your Honours, in response to the questions regarding age difference being substantial or not, France says that if there is a 10-year difference in age, there is a presumption of substantiality at the summary judgment stage, not 12b6.

[00:26:27] Speaker 01:
Evidence is not needed at the 12b6.

[00:26:29] Speaker 01:
We haven't gone through discovery.

[00:26:31] Speaker 01:
That's ultimately what discovery is for.

[00:26:33] Speaker 01:
As it relates to the plausibility pleading standards under ICBAL, Shepherd was a post-ICBAL case, as well as, it was a post-ICBAL and post-Twombley case where the plausibility standard was met.

[00:26:45] Speaker 01:
As the Supreme Court said in ICBAL, determining whether a complaint states a plausible claim is context specific.

[00:26:52] Speaker 01:
In ICBAL, the plaintiff was alleging conspiracy and intent to commit civil rights violations.

[00:26:57] Speaker 01:
That's not what we have here.

[00:26:58] Speaker 01:
What we have here is a run-of-the-mill employment discrimination case.

[00:27:02] Speaker 01:
In paragraph 8, Mr. Parker says that he was 57, which means that he was part of the class for the ADEA claim.

[00:27:10] Speaker 01:
In paragraph 9, Mr. Parker says that he was diagnosed with diabetes in 2018.

[00:27:14] Speaker 01:
In paragraph 18, Mr. Parker says that he received a fully successful rating when he previously held his position in 2019.

[00:27:22] Speaker 01:
In paragraphs 22 to 25, Mr. Parker notes his qualifications.

[00:27:26] Speaker 01:
That includes decades of experience on the Columbia River, which is central to this specific role and this mission for this job.

[00:27:34] Speaker 01:
In paragraph 16, Mr. Parker notes that he was not rehired.

[00:27:39] Speaker 01:
In paragraphs 28 to 46, he notes that he was in place of him being rehired.

[00:27:45] Speaker 01:
It was people who were neither not disabled nor, excuse me, and at least seven years younger than him.

[00:27:52] Speaker 01:
In paragraphs 15 and paragraph 70, he says that but for his age and disability, he would have been rehired.

[00:27:59] Speaker 01:
As it relates to him being perceived as disabled, whether or not he was perceived as disabled, that's a question of fact that would preclude some judgment, let alone a motion to dismiss.

[00:28:08] Speaker 01:
It's a plausibility standard, not a probability standard.

[00:28:11] Speaker 01:
Based off the allegations in the complaint, it is entirely plausible that the hiring officials perceived Mr. Parker as disabled.

[00:28:18] Speaker 01:
And in paragraph 14, he said that the selecting official, Steven Russell, perceived him as disabled.

[00:28:23] Speaker 01:
In paragraph 71, he says that almost all the panelists emphasized safety concerns specifically related to his disability.

[00:28:30] Speaker 01:
In paragraph 75, he says one of the interview panelists during the interview, Daniel Guy, questioned his ability to concentrate.

[00:28:36] Speaker 01:
And those type of accusations of unfitness are really what the ADEA and Rehab Act were

[00:28:41] Speaker 01:
attempting to prevent.

[00:28:44] Speaker 01:
In paragraphs, excuse me, in paragraphs 73 to 74, Mr. Parker notes that the selecting official, Steven Russell, as one of the interview panelists, Daniel Guy, recalled 15 months after Mr. Parker initially resigned that he resigned on account of his diabetes because there were some physical limitations.

[00:28:59] Speaker 01:
He wasn't able to renew his license.

[00:29:02] Speaker 01:
As it pertains to leave to amend,

[00:29:04] Speaker 01:
Under Shepard and Sorkowitz, this is a plausible claim of age and disability discrimination, so Mr. Parker had reasonable grounds to believe his complaint was sufficient.

[00:29:16] Speaker 01:
This is also not a case of repeated amendments or dilatory tactics.

[00:29:20] Speaker 01:
It's a first real opportunity to cure the complaint if you should find that there are some deficiencies with appellate guidance.

[00:29:28] Speaker 01:
Amendments also would not materially prejudice the defense.

[00:29:32] Speaker 01:
Discovery hasn't begun.

[00:29:33] Speaker 01:
There won't be any new parties or claims to the complaint.

[00:29:36] Speaker 01:
There's no effect also on trial preparation or deadlines.

[00:29:39] Speaker 01:
Federal Rules of Civil Procedure 15A2 says that the court should freely give leave when justice so requires.

[00:29:46] Speaker 01:
The Supreme Court in Foaming v. Davis follows the same spirit where unless an amendment would be futile, it should be granted ultimately.

[00:29:53] Speaker 01:
But that's if you find that there are any deficiencies with the complaint.

[00:29:57] Speaker 01:
So just to conclude, Your Honours, Mr. Parker under Sheppard and Swerkowitz has stated a plausible claim for age and disability discrimination.

[00:30:06] Speaker 01:
He's actually taken it a step further where he says

[00:30:09] Speaker 01:
In comparison to Sheppard, he says the age and disability were the reasons, but for his age and disability he would have been rehired.

[00:30:16] Speaker 01:
And Sheppard, the plaintiff, Catherine Sheppard, she merely says that age was a determining factor, not the determining factor.

[00:30:26] Speaker 01:
Mr. Parker is more direct and he makes that causal connection that the age and disability were plausible reasons for why he was not ultimately rehired.

[00:30:33] Speaker 05:
So what you're asking us to do then is you think the complaint as it stands is enough to survive a 12B6, so you're not asking for leave to amend, correct?

[00:30:41] Speaker 05:
Yes.

[00:30:41] Speaker 05:
You think you guys just win, we send it back, and then if it does get sent back, let's say we agree with you on that.

[00:30:48] Speaker 05:
Sure.

[00:30:48] Speaker 05:
At that point in the district court, if counsel, whoever that is, wants to seek leave to amend, they could always do so at that time.

[00:30:56] Speaker 05:
If they wanted to add allegations before the district court, I assume they could do that if we were to remand it back to the district court.

[00:31:01] Speaker 01:
Yes, he's not going to.

[00:31:03] Speaker 01:
He's he felt that under Shepard and Serkowitz, he's good to go.

[00:31:07] Speaker 01:
He had done enough.

[00:31:08] Speaker 01:
Yes.

[00:31:08] Speaker 01:
And he had done enough based off those precedents.

[00:31:10] Speaker 01:
So he had reasonable grounds to believe that that was sufficient.

[00:31:13] Speaker 01:
And then the Supreme Court in Serkowitz said that it seems incongruous to require a plaintiff in order to survive a motion to dismiss to plead more facts than he may ultimately need.

[00:31:22] Speaker 01:
to prove to succeed on the merits if direct evidence of discrimination is available.

[00:31:27] Speaker 01:
To simplify that, we haven't gone through discovery yet.

[00:31:31] Speaker 01:
And that also goes to Your Honor's point about the age being substantial or not.

[00:31:36] Speaker 01:
Mr. Parker says it was at least seven years younger.

[00:31:38] Speaker 01:
He doesn't have the specific dates and such and so forth, but that is something that would be elucidated through discovery.

[00:31:45] Speaker 01:
Thank you, Your Honors.

[00:31:46] Speaker 05:
All right, thank you, counsel.

[00:31:47] Speaker 05:
Thank you to all the counsel for their briefing and argument in this case.

[00:31:50] Speaker 05:
And again, I really want to thank

[00:31:51] Speaker 05:
UC Irvine and the students there for stepping up.

[00:31:54] Speaker 05:
Ms.

[00:31:54] Speaker 05:
Davis, thank you for stepping up.

[00:31:57] Speaker 05:
It really helps to have the clinics and the lawyers step up in these types of cases.

[00:32:02] Speaker 05:
So we really want to thank you.

[00:32:03] Speaker 05:
Yes.

[00:32:04] Speaker 05:
All right.

[00:32:04] Speaker 05:
This matter is submitted.

[00:32:05] Speaker 05:
We'll call the next case.