[00:00:01] Speaker 00:
Please be seated.

[00:00:03] Speaker 03:
Well good morning and welcome to the Ninth Circuit. I'm Judge Nelson and it's a pleasure to be with my colleagues Judge Bybee and Judge Forrest and we welcome you.

[00:00:12] Speaker 03:
to the court today. We're grateful for court staff who have helped us run this smoothly, notwithstanding some weather setbacks and other logistical issues. But we ask that during arguments you just pay attention to the clock, let us know if you want to reserve time, and then sum up as your time is expiring.

[00:00:33] Speaker 03:
Also know that You don't, the first case I expect we'll need all the time. For those on the video, you know, you don't need to use all your time in the second case, but we'll hear, we're anxious to hear whatever the parties want to say in defense of their clients. So we're ready to proceed with the oral argument calendar. There's one submitted case, Wang versus Bondi, and the first case set for argument is Crow versus Averell, case number 25-1400.

[00:01:08] Speaker 03:
All right. Good morning, Your Honors.

[00:01:26] Speaker 04:
If I may reserve three minutes for rebuttal. Thank you. May it please the court, Christopher Bonk on behalf of petitioner Stephen Crowe. So in this matter, your honors, in finding for the government on summary judgment, the district court engaged in reversible errors. A few points on which I'd like to highlight in particular this morning. The first being on Mr. Crowe's reprisal claim and ruling on summary judgment. The district court misapplied the standards on establishing adverse employment actions, wholly failed to give any reasoning or analysis regarding proposed removal as an action, and improperly excluded the investigation from its assessment.

[00:02:03] Speaker 04:
Second on the hostile work environment in claim.

[00:02:05] Speaker 03:
Can we back up? Let's just take this one at a time. I mean, this is, you know, sort of complicated as you get into all these issues. So on the first one, on the retaliation, on the discrimination and retaliation point, I guess you're combining those together.

[00:02:19] Speaker 04:
To an extent, Your Honor. There's a few points that do commingle there, but there's, I think, larger issues to address with very glaring deficiencies within the retaliation decision itself.

[00:02:27] Speaker 03:
So the only thing before us is the pre-termination issues, right? Correct. Because the termination we already held was not discriminatory.

[00:02:39] Speaker 04:
That's been disposed of, Your Honor. Yes, correct. It's only the pre-termination issues.

[00:02:42] Speaker 03:
And so to what degree does that prior decision inform our decision here? And how does that narrow the scope of what we're looking at?

[00:02:50] Speaker 04:
So it minimally impacts it here for practical effect, Judge. And, of course, there was an argument below on the law of the case and how that impacts it. The district court did dispose of that here. I think that was disposed of at the end of the day correctly. That was correctly set aside.

[00:03:07] Speaker 03:
And I'm not suggesting that law of the case controls. I think that's clearly true. I mean, our prior case clearly said that. Pre-termination goes back. But they made findings that, you know, he was properly terminated.

[00:03:20] Speaker 03:
And so really all you can, the only argument it seems to me that's left for you is that the investigation was opened.

[00:03:29] Speaker 03:
There was a discriminatory basis for the investigation to be opened. Would you agree with that assessment?

[00:03:36] Speaker 04:
I would not judge because we have a host of pre-termination issues here. And the decision maker at issue in the earlier case for the decision to terminate is... Balsant. No, so Balistros was not the deciding official. So Balistros was the proposing official and his animus is at issue here. Oda's animus is at issue here. They were not the deciding official for the termination that was resolved.

[00:04:01] Speaker 03:
Right, but that goes to opening the investigation. Doesn't that roll in? If I understand your argument, your argument is Oda had Animus, and Oda was influential in opening the investigation, and so therefore there was discrimination here.

[00:04:17] Speaker 04:
Oda was influential in the conduct of the investigation. The actual initiation of the investigation was Ballesteros assigning Oda to initiate that. But Animus is both at issue in this, absolutely.

[00:04:28] Speaker 03:
Okay, so Oda wasn't responsible for opening the investigation. Sewell was, I guess. Sewell filed the complaint against Crow. Okay, so let's take that apart then. Because if Oda... So you were complaining about the investigation and that Oda did it.

[00:04:45] Speaker 03:
Oda, it was handed over to him. He did the investigation. He had animus. Therefore, here's the problem, though. That's where it seems to roll into our prior case because...

[00:04:57] Speaker 03:
Our prior case said the results of the investigation are indisputable.

[00:05:04] Speaker 04:
And I think that's a really important point for our purposes here for the predetermination issue. And the district court gets into error in this within the assessment of kind of justifying its ultimate finding on summary judgment. The district court looks at the results of the investigation.

[00:05:22] Speaker 04:
We aren't looking at the results of the investigation as much here. It gets a little bit into the proposal itself, but there's more nuance on that and the actual timing on that that we'll get to in a moment, I think, or I'd like to get to in a moment. But as far as the initiation of the investigation, the discriminatory animus, retaliatory animus in kicking off the investigation.

[00:05:44] Speaker 03:
That's why I'm asking you these questions. Is it that the investigation was initiated or is it how the investigation was conducted? It is both, Your Honor. As to how the investigation was conducted, I don't understand how that claim can proceed.

[00:05:57] Speaker 04:
Because when this court remanded this matter back down, it remanded the pre-determination actions, which included the investigation itself, and this was further developed. There is additional evidence in the record, additional statements, additional declarations at issue, additional briefing on that issue that I think is pertinent here.

[00:06:12] Speaker 03:
Let's go to opening the investigation, because that seems to be clearly...

[00:06:17] Speaker 03:
but I don't understand your claim for opening the investigation. Sewell files a complaint.

[00:06:24] Speaker 03:
Are you suggesting that that complaint should not have been investigated?

[00:06:28] Speaker 04:
No, and I think it very well could have been investigated. The issue is part, and this ties into, of course, the comparator issue as well, because that decision to initiate an investigation against Crow and not against Oda, that ties into that comparator, whether or not... They did initiate an investigation into Oda.

[00:06:46] Speaker 04:
They did not. There was no investigation into ODA. There was simply just a written reprimand, and that's part of the issue here.

[00:06:52] Speaker 04:
There's a complaint against Crow and there's a complaint against ODA. Ballesteros gets instruction to look into it, the same instruction for both. Ballesteros initiates an investigation into Crow, appoints ODA as the investigator. No investigation is initiated into ODA. Instead, Ballesteros simply issues him a written reprimand and says, we're done with it.

[00:07:12] Speaker 04:
but there's a disparate treatment. They're both of the same, similar to situated otherwise. And there's this very clear distinction effect. And this is one of the really important points, I think, on these disputes of fact that the district court ultimately weighs in favor of the movement, the government in this matter on that. The district court in making that comparative determination between Oda and Crowe, why one was investigated, why one wasn't, looks at, flags this concern about, well, Well, one claim was Sewell being concerned about his safety, fearful of his safety, and that's the distinction.

[00:07:44] Speaker 04:
Well, we think that's very much in dispute. That's an incredibly important material fact in dispute here.

[00:07:50] Speaker 04:
And I think Sewell's complaint itself against Crowe in Volume 2 at 269, Sewell says he complains about not that he's going to be impacted or physically impacted by Crowe, but rather the central point of the complaint is spreading rumors. He's saying he's saying things I don't agree with. I think he's lying. And what Sewell actually says is that Sewell himself, I, Sewell, will not be able to control my actions around Crow when he's spreading lies. It's not that Crow's coming after him, that hearing Crow's lies, he's going to go after him.

[00:08:20] Speaker 04:
And Oda's assigned to investigate this.

[00:08:24] Speaker 03:
That is your strongest point. I fail to understand. I'm interested in hearing from this. I do not understand why Oda was assigned to investigate this. Like that, that just defies common sense. But, But I don't know whether that gets you where you need to go. But setting that apart, I guess I'm still struggling to understand why this is discrimination. I mean, there are two different complaints that are raised. One of them, you know, I mean, he was reprimanded. Like, do you think you think is the discrimination that there was no investigation or that you think Oda should have been terminated in the same way that that Crow was terminated?

[00:09:04] Speaker 04:
I think it more aligns with that should have been investigated. So if there's two complaints which are functionally equivalent in our perspective, Belasteros gets the same. They're not functionally equivalent. I mean, for purposes of comparators, what we're pushing their judge.

[00:09:19] Speaker 03:
I guess that's what I have our time seeing because it seems to me they have discretion to look at comments that are made I mean, that's very different from whether you're engaging in sexual activity in the workplace.

[00:09:34] Speaker 04:
Well, and that's, I think, a really important point is that engaging in sexual activity in the workplace, that is when it only comes in later. Later, exactly so. That is that if an investigation hadn't been opened up, this would have been more. And that's part of it that gets into this issue. And I think this is kind of a common trend against these types of issues, these retaliation claims about this question of the initiation of the investigation. It turns into a fishing trip. And additional information is gathered up in the processing of the investigation. That's where we get to later in this, right, which is additional claims are dredged up in the conduct of the investigation.

[00:10:06] Speaker 04:
But the initiation of the investigation is solely centered on Sewell's complaint against Crow. And that's where we have, correct, true to what you stated earlier, Judge, One of the issues is in our position, the investigation goes off the rails. OTA brings it off the rails. It is centered. Well, I think we've got to be careful.

[00:10:26] Speaker 03:
Let me clarify what I was saying. I think it's wrong that they put OTA in charge of it, but I'm not sure I agree with your assessment that it went off the rails. I mean, we've basically said as much that everything that came out was grounds for termination.

[00:10:42] Speaker 04:
Sure, and I understand the judge, and I didn't mean to misrepresent. What I'm indicating is that the convey is that our position is that the investigation, the conduct of the investigation, there are issues with it.

[00:10:54] Speaker 04:
And to that point, there are, and actually, well, I think we've discussed that, but I wanted to point out that. One of the things that I did also want to point out in particular, as I see my time is expiring quickly here, is flagging a particular passage on the district court's decision. And going back to this issue of these throughout the decision, there's a reliance by the district court on finding for the movement on material disputed facts and yet ruling in summary judgment anyway.

[00:11:28] Speaker 04:
So at volume one, page 38, the district court actually concedes there on the government's articulated reasons for its actions. It says, quote, these facts raise a genuine issue of material fact as to whether defendant discriminated against plaintiff, and yet then rules in favor of the move-in anyway on summary judgment.

[00:11:47] Speaker 04:
It concedes that there is a genuine issue of material fact as to whether there's discrimination, and then still fines for the government.

[00:11:53] Speaker 03:
I think that in and of itself is... But doesn't that... I'll have to go back and look at that, but it seems to me that that's not necessarily inconsistent with the McDonnell-Douglas burden-shifting standard.

[00:12:04] Speaker 04:
I think that's a concession, at least from our perspective, Judge, at least in the context there, it is a concession that there are material facts and disputes such that summary judgment should not be granted.

[00:12:14] Speaker 04:
Another important point that I do want to flag here is with respect to the hostile work environment claim.

[00:12:20] Speaker 04:
The district court in the decision there at Volume 1, pages 45 to 48, exclusively analyzes the use of these slurs. There's no consideration given to the other actions at issue in assessing whether the conduct was severe or pervasive. The hostile work environment claim is not just use of slurs. The hostile work environment claim are all of the pre-termination actions that were remanded. The placement on admin detail, the removal of police powers, the investigation, the proposed removal, all essential parts of the hostile work environment claim, and that's memorialized in the transcript that we have, of course, of the MSJ discussion and oral argument there, volume two, pages 81 and 82, and those are explicitly lined out in the discussion with the judge.

[00:13:00] Speaker 04:
The judge does not address it at all. The district court does not address the majority of the claims at issue in the hostile work environment matter, and yet still... I guess I'm not sure I follow entirely the argument that you're just making, because at the point that

[00:13:13] Speaker 00:
that disciplinary action starts happening, the changing of duties and removal of police powers, then these other things that came out in Oda's investigation are known. So how do you tie those disciplinary actions directly to a hostile work environment when you've got intervening facts coming into the story at that point?

[00:13:32] Speaker 04:
BECAUSE, AND I'D SEE MY PRIMARY TIME IF I MAY RESPOND THERE. I CAN'T ALWAYS ANSWER OUR QUESTIONS. I FIGURED AS MUCH, BUT ALWAYS FAIR TO CHECK.

[00:13:45] Speaker 04:
one of the concerns that we have about the hostile work environment assessment that ties into that answer, and I hope this answers your question, is it needs to be a broad review of the circumstances here. The district court narrows this down. There is a host of actions here taken across the entirety of all these pre-termination actions. Those must all be taken as a whole and assessed into this.

[00:14:06] Speaker 00:
But that's the nature of my question. It seems like you're trying to narrow it and say that, you know, because of some things that happened earlier on in the story that more current directly tie perhaps to the hostile work environment theory that you're advancing, it seems to ignore that we've got an investigation that happens and facts that come to light about sexual misconduct in the workplace and those sorts of things. And doesn't that impact the analysis?

[00:14:33] Speaker 04:
It should be considered in the analysis, Judge, absolutely. And I think that's part of our point here is it's not. None of that is in the analysis whatsoever in the district court's determination. And beyond that as well, I think to one of the points I touched on earlier, some of these bits of information that are dredged up during the course of the investigation, had this retaliatory, discriminatory investigation not been initiated, they would never have arisen. Those are the results of a fishing expedition that was discriminatory in our firm opposition.

[00:15:02] Speaker 03:
Okay, we'll give you time for rebuttal then. Thank you much.

[00:15:14] Speaker 01:
Good morning. May I please the court? Assistant United States Attorney Edrick Ching appearing on behalf of the Secretary of the Army.

[00:15:24] Speaker 01:
First, I would like to address counsel's comment about THE LACK OF THE LACK OF INVESTIGATION INTO ODA'S FEBRUARY 2016 COMMENT. IN FACT, YOUR HONOR, THE RECORD IS CLEAR THAT THERE WAS ACTUALLY AN INVESTIGATION. MR. CROWE.

[00:15:42] Speaker 03:
MR. YOUR POINT IS TO WHERE THAT IS?

[00:15:44] Speaker 01:
MR. YES. THAT WOULD BE AT THAT WOULD BE AT LET'S SEE.

[00:15:56] Speaker 01:
ER 323.

[00:15:56] UNKNOWN:
323?

[00:15:57] Speaker 01:
Yes. Okay.

[00:16:00] Speaker 01:
And what is that? It's an email string. I mean, it's a document string in which Mr. Crowe complained to Mr. Guerrero about the ODA comment in February 2016.

[00:16:16] Speaker 01:
Provost Marshall Guerrero then ordered SPO, which is Supervisory Police Officer Ballesteros, to conduct an investigation.

[00:16:27] Speaker 01:
And approximately within the next several days... And the investigation consisted of what? SPO Ballesteros confronted, or SPO Ballesteros spoke to Officer Oda. Officer Oda admitted...

[00:16:45] Speaker 01:
that he made the comment. He was given counseling.

[00:16:48] Speaker 02:
Did Ballesteros talk to anybody else?

[00:16:54] Speaker 01:
There was no record of that, but, however, a few days later, Ballesteros did bring the parties together.

[00:17:03] Speaker 01:
Officer Oda then apologized to Mr. Kroll, and they shook hands. But a day prior to this meeting, Officer Oda, in an email, said, which is ER 420, 420.

[00:17:20] Speaker 01:
Officer Oda then apologized to Mr. Crow for using the comment.

[00:17:25] Speaker 03:
And did he ever use the comments again?

[00:17:28] Speaker 01:
There was no record of Mr. Oda, Officer Oda using that comment again. And that probably goes to the question that was posed to counsel as to why

[00:17:41] Speaker 02:
Officer Oda was assigned to... But there were also comments, there's also some evidence in the record that Crow perceived that Oda said he would never work with him again and that he said that Oda gave him the cold shoulder after that. Yes. Okay, so there is evidence in the record of those things.

[00:18:01] Speaker 01:
Yes, but with regard to SPO Ballesteros' decision to assign Officer Oda to do the investigation, there is no evidence, I believe, that SPO Ballesteros was aware of that. That Ballesteros was aware of what?

[00:18:18] Speaker 01:
that Officer Oda made that comment about not working.

[00:18:22] Speaker 02:
So this is going to be a really hard point for you to defend. This is really bad judgment on Biosteros' part. Yes. Is there any good justification for choosing a man who's just been reprimanded for using homophobic slurs against his co-officer and then assigning him to conduct an investigation of that officer? What could possibly justify that? You didn't have any other officers at Tripler?

[00:18:49] Speaker 01:
Well, Your Honor, just to point it out, S.P.O. Ballesteros did ask two officers to investigate. He asked Oda, Officer Oda, to take the four statements, but he also assigned Officer Calpico to take two statements. That was later on. Later on, yes. Much later on. Yes. Okay. And in addition to that...

[00:19:14] Speaker 01:
The record indicates that S.P.O. Ballesteros, he felt that because the apology was made, they shook hands and everything, that there was no animus or any type of hard feelings between them. In addition to that, I don't think there's anything in the record that Ballesteros knew that any further types of those comments were made.

[00:19:38] Speaker 03:
Can I ask about, because I guess this, they're trying to expand the hostile word.

[00:19:44] Speaker 03:
claim here and based on their argument. But when you just go to the slurs themselves, we have the one slurred issue where he gets reprimanded and apologizes and cleans it up. But then the supervisor and I bought a steros. Yes. Right.

[00:20:01] Speaker 03:
He was present during one of the there's no dispute that those slurs were used previously as well. Correct.

[00:20:08] Speaker 01:
If you look at the declaration set forth by Mr. Kroll in opposition to our motion for summary judgment, it states that a comment was made by Officer Oda, not in the presence of Mr. Kroll, but in the presence of other officers. It said that SPO Ballesteros was present, but it did not state that SPO Ballesteros was present or heard those comments.

[00:20:34] Speaker 02:
So there's no... He says that he was present in the class. This is paragraph six. Yes. I recall taking a class on psychiatric patients on Veterans Affairs after the class and a few officers approached me, told me that Officer Oda had referred to me using the slur more than once with him to my recollection. Chief Ballesteros was present in that class.

[00:20:55] Speaker 01:
Yes, but there's no there's no evidence. There's nothing in the record to show that Chief SPO Ballesteros actually heard those comments.

[00:21:03] Speaker 02:
Was he asked about those comments? Was he asked about that in his deposition?

[00:21:07] Speaker 01:
I don't believe so, Your Honor, but I mean, I would, you know, love to take the chance.

[00:21:13] Speaker 03:
I'm confused. Crow was present in that meeting or not?

[00:21:20] Speaker 01:
My MY RECOLLECTION OF THE RECORD WAS THAT ANOTHER OFFICER TOLD MR. CROWE THAT OFFICER ODA WAS MAKING THESE TYPES OF COMMENTS ABOUT YOU.

[00:21:31] Speaker 03:
NEW SPEAKER SO CROWE WAS NOT PRESENT WHEN THE SUPERVISOR HEARD OF THESE OR ARGUABLY HEARD THESE COMMENTS.

[00:21:41] Speaker 01:
Yes. So at the district court hearing, we talked about... Can you help me just understand?

[00:21:46] Speaker 03:
And it's a little bit complicated. I know we're going back 10 years. But is this common? I mean, it seemed to be, as they started to investigate it, that this was sort of like, I don't know if common is the right word to say it, but that it was not viewed internally as a derogatory comment. Has that changed in the department? Do you know?

[00:22:10] Speaker 01:
I'm not sure what is going on in the department now.

[00:22:17] Speaker 03:
I mean, I'm just wondering, if you heard that, why wouldn't there be some action taken? I mean, that's a little bit troubling to me, and I'm trying to grapple with it. Yes. No, your argument is there's no evidence he actually heard it.

[00:22:32] Speaker 01:
Yes, so my argument is the first time that SPO Ballesteros heard about Officer Oda using these types of comments was in February 2016.

[00:22:45] Speaker 01:
And just to make it clear, Your Honor, at the district court hearing, I believe, Council admitted there were three comments that were made. The comment in mid-2015 that we're just discussing during the training. In January 2016, while Officer Oda and the plaintiff, or Mr. Crow, were watching somebody exit their car, Officer Oda made a comment about, you know, used the F word, you know, in his presence.

[00:23:15] Speaker 01:
And then the third one is in February 2016.

[00:23:19] Speaker 03:
What's interesting to me, and maybe you're the wrong person to ask, but there's Well, there's no evidence that the supervisor, at least we've said that in our prior opinion, there's no evidence that the supervisor knew of Crowe's sexual orientation, even in February of 2016, right?

[00:23:39] Speaker 01:
Yes.

[00:23:40] Speaker 03:
What about Oda?

[00:23:44] Speaker 01:
Oda also stated that he did not have knowledge of...

[00:23:53] Speaker 01:
He did not have knowledge of his sexual orientation.

[00:23:56] Speaker 02:
Didn't Crow tell him, tell Oda that he was bisexual?

[00:24:03] Speaker 01:
Yes, but that's what, that was a claim made by Mr. Crow, but Officer Oda in his, let's see, I believe it's ER 349, stated that No, I'm sorry. ER 392, Officer Oda stated that he thought that he believed that Mr. Crow was heterosexual when he did the interviews. When he did what interview? When he interviewed. Yes, when he interviewed the four witnesses during the investigation.

[00:24:35] Speaker 02:
He's already been, Oda's, I mean, sorry, Crow has already told Oda that he was bisexual at that point. He's already been reprimanded for using those slurs.

[00:24:44] Speaker 01:
Yeah, but that's what Mr. Crowell said that he told Oda that, but I guess Oda didn't. Oda just didn't believe him.

[00:24:50] Speaker 00:
But at summary judgment, we would take the plaintiff's version of the story.

[00:24:53] Speaker 01:
Yes, and in addition to that, Your Honor, if you look at ER416, that's Mr. Crowell's EEO application, he stated in there, I am not gay.

[00:25:08] Speaker 02:
But he can be bisexual.

[00:25:11] Speaker 02:
I mean, I'm not exactly sure how fluid all of this is. But he admitted later on to both homosexual and heterosexual conduct. Correct. That was in his deposition.

[00:25:24] Speaker 03:
I guess the question that I want to know is clearly by February of 2016, whether Oda believed it or not, Crowe had made clear that he took offense to this because he it was attacking him personally. That was his view of it in 2016, because he was bisexual.

[00:25:46] Speaker 03:
Is there any evidence that that had been communicated to Oda before February of 2016?

[00:25:52] Speaker 01:
I don't believe so, Your Honor. And in addition to that, I'm sorry.

[00:25:58] Speaker 03:
Does it matter? Well, no, that's helpful. The other thing I'm struggling with is, does it matter?

[00:26:05] Speaker 01:
I don't think it matters. I mean, In this case, it does not matter because once Officer Oda was confronted with this by S.P.O. Ballesteros, he apologized. And at that point, there were no further comments made by Officer Oda using that term.

[00:26:23] Speaker 02:
Is there any evidence that Officer Oda ever used this slur with any other officer?

[00:26:29] Speaker 02:
I don't believe...

[00:26:34] Speaker 01:
I don't believe there's anything in the record to indicate that he used it for any other officer.

[00:26:40] Speaker 02:
Oda may have perceived something in Crow, even if Crow wasn't out to him.

[00:26:47] Speaker 01:
Yes, but I believe in the record, Oda stated that his interpretation of the F word was not about homosexuality.

[00:26:56] Speaker 02:
Yeah, and I don't think we have to believe that.

[00:27:01] Speaker 02:
I don't think a jury would have to believe that either. So I think if that's what you're resting on, I think that's going to be a jury question.

[00:27:08] Speaker 01:
So going back to Officer Oda, if you look at the statements that he did, if you look at the various statements, this is not a case in which, for example, he interviewed somebody and then he just did a summary. If you look at the four statements, which is from ER 373 to ER, I believe, 386, in those statements, if you look at the way the statements were structured and you look at the testimony, They were questions and answers, and Oda testified that he would type out the question, and the witness would then type out the answer, and I believe there's an initial next to each.

[00:27:46] Speaker 01:
So this is not a case of... Why didn't Oda interview Crowe?

[00:27:51] Speaker 01:
Oh, Oda could not interview Crowe because pursuant to union rules, a preliminary discussion needed to be scheduled with union representatives there.

[00:28:03] Speaker 02:
And if you look at... Right, but that still doesn't explain why he didn't interview him. He could do so as long as there was a union representative there, right? Yes. Oda could have said, okay, I better take this from here. Thank you for talking to everybody else. I need to talk with Crowe myself. Yes, and Your Honor... He eventually does talk to him with the union representative.

[00:28:22] Speaker 01:
And if you look at ER 425, there appears to be some delays just because of people's schedule. So the interview of Mr. The preliminary discussion occurred in June 2016. And if you look at the email trail, it's because...

[00:28:40] Speaker 01:
People had scheduling conflicts.

[00:28:41] Speaker 02:
What did we do with the comments from both one of the officers who was interviewed, I don't remember which one, and Sewell, that both of them thought that a bigger deal, that OTA was making a bigger deal of this than was warranted? Sewell certainly said this became a much bigger deal than I intended. I didn't want this to be a big deal. And one of the officers thought that Crowe was a good officer and didn't understand why so much was being made out of all of this.

[00:29:10] Speaker 01:
Well, if you look at the way the statements played out, if you look at the initial email from Sewell to his supervisor, Novosel, at 3.38, that talks about a confrontation in the Tripler Army Medical Center Emergency Department. And then it talks about how, you know, perhaps Crowe was spreading rumors to other people, including his wife at the VA. And then at that point when...

[00:29:38] Speaker 01:
And then it talked about a love triangle with Arnella, which is Arnella Garcia.

[00:29:42] Speaker 00:
Do you agree with the argument that your friend across the aisle made in terms of the Sewell complaint really being rooted in the spreading of rumors and not in any sort of threat of physical force?

[00:29:53] Speaker 01:
Well, in the Sewell complaint, he did say, I believe he made a comment about that he feared for his safety.

[00:30:02] Speaker 01:
And that I believe, I'm not 100% sure, but I believe... I'm trying to pin you down here.

[00:30:07] Speaker 00:
So is it your client's perspective that the nature or the root of that complaint by Sewell was some sort of physical risk in the workplace?

[00:30:17] Speaker 01:
Yes, and then from there it evolved to speaking to the two VA employees, Ali Sam and Tabang Gora, and then when they spoke to them, then they learned about information about gossiping for extended periods of time.

[00:30:35] Speaker 00:
They learned about... Is it fair to say that the physical threat aspect of this, if it existed at all, only...

[00:30:44] Speaker 00:
traces back to the initial comment by Sewell, the initial report by Sewell. That's your only basis to point to that issue, is that right?

[00:30:52] Speaker 01:
Yes, and then also with regard to the administrative duty, not only a physical threat to Sewell, but just a general physical, I mean, just a general issue about public safety because Anala Garcia in her statement says that when they had relations in the 10th floor Tripler Army Medical Center training center, that he would undo his service belt, which I believe would also contain his revolver, and you're not supposed to, I believe, pursuant to regulations.

[00:31:20] Speaker 02:
Sounds like good reasons for terminating him.

[00:31:22] Speaker 01:
Yes.

[00:31:22] Speaker 02:
Which we've already approved.

[00:31:24] Speaker 01:
Yes, already approved in the 2023 opinion.

[00:31:31] Speaker 01:
Oh, I see the red light.

[00:31:32] Speaker 03:
No, yet. I just want to make sure we don't have any more questions. I think we've heard your argument.

[00:31:39] Speaker 01:
Thank you very much.

[00:31:39] Speaker 03:
Thank you.

[00:31:55] Speaker 04:
Your Honors, if I may just address a few of the points raised here. I think most prominently one of the disputes about the investigation, I do want to flag here on Volume 2 of the Extra Records at page 216 and 217, actually, we have Ballesteros' testimony where he is asked, well, whether he actually investigated the allegations made by OTA, and he responds, no. And he says, I didn't think of anything of it really.

[00:32:25] Speaker 04:
And he's asked, you just took it at face value. And Ballesteros' response, he just said that it was mentioned, the slur. So I indicated that on my counseling. So Ballesteros actually testifies, concedes. There was no actual investigation conducted into Crowe's allegations against Oda.

[00:32:42] Speaker 04:
Another, I think, important point to flag here.

[00:32:44] Speaker 04:
The nature of Sewell's complaint, that was a topic of discussion here, and I think that disagreement from my friend here is really indicative of that this is a material dispute of fact. That issue, was it a concern of safety or not, that prompted the investigation decision, at least purportedly. And so that ties into this justification for the initiation of the investigation. That's a material dispute that needs to go to the jury. It had no chance to do so here.

[00:33:13] Speaker 04:
Another point I wanted to flag here, briefly related to the investigation, there's a discussion of the three use of slurs against Mr. Crow.

[00:33:24] Speaker 04:
We don't actually know for certain that it was only three uses. It wasn't investigated. The record on that is sparse.

[00:33:31] Speaker 04:
Crow was able to identify three with the help of notes from other individuals in the course of the proceedings that we made it through. But you haven't come up with any additional evidence? That's correct, Judge. Not in the record, at least.

[00:33:42] Speaker 00:
Of course, on the flip side, we do have evidence that Ballesteros and others in the workplace didn't think that this was a word that should be all that offensive. Like maybe it's just a workplace word.

[00:33:51] Speaker 04:
So that was my next point, Judge, actually. So I appreciate that. And that's a really important point as well here. That is a huge dispute of material fact here. And there's actually some very substantive discussions in this. And because actually Oda calls this at pages 181 to 82 in the volume two, that the slur is just cop talk. Just cop talk is what he calls it. But there's contrary testimony in the record directly refuting that. There's testimony from other officers at page 267, volume 2, that it is not at all a slur that is used. They say it's not a slur that they throw around in a police department.

[00:34:23] Speaker 04:
And they confirm, I think it was mentioned previously at page 263, Oda's repeated use of this slur. It's not something that anybody else throws around the station. And it is repeatedly and exclusively targeting Crowe.

[00:34:37] Speaker 04:
It's not a slur that they accept. It is not a slur that is appropriate.

[00:34:40] Speaker 02:
And there's no evidence that OTA used this term regularly? For anyone else. For anyone else. That's correct, Judge.

[00:34:48] Speaker 04:
I see my time has expired. Thank you, Your Honors.

[00:34:51] Speaker 03:
Thank you. Thank you to both counsel for your arguments in the case. The case is now submitted.