[00:00:02] Speaker 00: All right, we'll call the next case, case number 244032, Jenny versus L3 Harris Technologies, EEC. [00:00:18] Speaker 02: Good morning, your honors. [00:00:20] Speaker 02: May it please the court? [00:00:22] Speaker 02: My name's Andrew Stavros. [00:00:24] Speaker 02: I represent the appellant, David Jenney, in this matter. [00:00:28] Speaker 02: Mr. Jenney was a longtime employee over 27 years of L3 Harris and its predecessors and interests. [00:00:36] Speaker 02: And he was terminated in November of 2019. [00:00:41] Speaker 02: Following his termination, he brought claims under the Americans with Disabilities Act and the Rehabilitation Act. [00:00:48] Speaker 02: alleging that he was discriminated against and retaliated for requesting an ADA accommodation. [00:00:57] Speaker 02: After filing his claims, discovery commenced, and at the end of discovery, the employer filed a motion for summary judgment seeking to dismiss all of Mr. Jenney's claims, and that motion was granted. [00:01:14] Speaker 02: The basis for the appeals at the court [00:01:16] Speaker 02: Number one, it misapplied longstanding precedent of the United States Supreme Court and this court that has repeatedly held that when an employee establishes their prima facie case and also show priest text by showing that the employer's explanation is demonstrably false, that they are entitled to take their case to the jury. [00:01:41] Speaker 01: Here. [00:01:42] Speaker 01: That's all they have to show. [00:01:43] Speaker 01: I mean, they don't have to show any [00:01:47] Speaker 01: Nexus, they don't have to show that it was that that caused the termination? [00:01:55] Speaker 02: They do have to show a nexus, your honor, but this court and the Supreme Court has held that the way that they can show that is by showing that the articulated reason that the employer gave for the termination is in fact demonstrably false. [00:02:13] Speaker 02: And in that situation, a finder of fact and not the court [00:02:17] Speaker 02: is allowed to decide whether or not the reason for the pretext was ultimately discriminatory. [00:02:24] Speaker 01: And so just like in any other type of case, as Reeves points out, the employer is in- Even if you can show that the stated reasons are untrue, don't you further have to show that the reason why there was determination was because of the disability. [00:02:47] Speaker 01: No, no. [00:02:48] Speaker 01: Are you saying if we were to require that, that would be pretext plus? [00:02:52] Speaker 01: Is that what you're saying? [00:02:54] Speaker 02: Yes, it would be, because you're asserting the authority from the jury to decide the ultimate issue as to whether or not the false explanation for the reason for the termination was a pretext for discrimination. [00:03:07] Speaker 02: And it doesn't carve out, Your Honor, the obligation to show an inference of discrimination, because that is ultimately part of the prima facie case. [00:03:16] Speaker 02: The third element of the case, whether it's a case of ADA discrimination or retaliation, requires the plaintiff to come forth with evidence of an inference of discrimination. [00:03:27] Speaker 02: The pretext element is the additional evidence that moves the ball to allow the jury to say, ultimately, was discrimination or retaliation the reason that the employer took the action? [00:03:44] Speaker 02: The reasoning for these decisions is rarely is an employer going to put in a personnel file the reasons that actually motivated the decision to terminate or take some other adverse action against an employer. [00:03:58] Speaker 02: So employment cases, like many other cases, rely considerably on circumstantial evidence, including showing that an employer made a demonstrably false reason for the termination. [00:04:13] Speaker 02: It is correct that in Reeves, the court carved out two narrow sections to that general rule. [00:04:21] Speaker 02: But this case in here indicated that an employer has a heavy burden, a very heavy burden, in showing that those two exceptions in Reeves would entitle the employer to summary judgment. [00:04:36] Speaker 00: Did the district court discuss those two exceptions? [00:04:39] Speaker 02: She did, Your Honor. [00:04:41] Speaker 02: The district court did discuss those exceptions, but she relied on only two facts to find that there was conclusively a reason for the decision other than discrimination or retaliation. [00:04:55] Speaker 02: And what the district court relied on was the fact, two issues. [00:05:00] Speaker 02: Number one is there was a conversation between Mr. Jenney and his supervisor that occurred in an offsite meeting. [00:05:08] Speaker 02: where for the first time, Jenny was notified that he wouldn't be in a position that had been retitled and that he would be placed in an individual contributor role. [00:05:18] Speaker 02: And following that discussion, the next day, Mr. Jenny's supervisor went to HR and included him in a riff. [00:05:27] Speaker 02: Those are the only two facts that the district court even discussed or considered in invoking the exceptions [00:05:34] Speaker 01: Well, the mechanism of the termination was his placement on the rift, correct? [00:05:41] Speaker 01: Correct. [00:05:46] Speaker 01: When was the rift originally created? [00:05:52] Speaker 02: Well, what had happened, Your Honor, is that L3 Technologies and Harris Corporation had merged in July of 2019. [00:06:02] Speaker 01: Give me a date. [00:06:03] Speaker 01: October 23 is the date of the meeting at the Cottonwood Club. [00:06:07] Speaker 02: Correct. [00:06:08] Speaker 01: What's the date when the RIF was prepared? [00:06:12] Speaker 02: When you say prepared, Your Honor, you mean Mr. Cheney's inclusion in the RIF? [00:06:17] Speaker 01: No. [00:06:18] Speaker 01: No. [00:06:19] Speaker 01: I know when he was included in the RIF. [00:06:21] Speaker 01: When was the RIF created that did not include Mr. Jenney? [00:06:27] Speaker 02: That is not in the record, Your Honor. [00:06:29] Speaker 02: It's not clear from the record when these other employees that were part of the RIF were also terminated. [00:06:35] Speaker 02: What is clear from the record is there was a deadline. [00:06:39] Speaker 02: Mr. Banton, who was a VP of HR for the employer, was working on a final list of people to include. [00:06:47] Speaker 02: that was supposed to be sent to legal on October 24th of 2019. [00:06:54] Speaker 02: As to when the other employees were notified as to when they were riffed, I don't think that's in the record. [00:07:00] Speaker 01: If I were to go to the record and go through it page by page, could I put together at least a reasonable estimate of when the riff was originally prepared on me, was it? [00:07:15] Speaker 01: June, July, August, September, when? [00:07:20] Speaker 02: I don't think that's in the record, Your Honor. [00:07:22] Speaker 01: It's clear that it would... But can I put that piece together to get some idea? [00:07:27] Speaker 02: Well, the record indicates that immediately in July... [00:07:30] Speaker 02: Because of the merger, the company started a role mapping, where they were trying to have similar titles and positions. [00:07:38] Speaker 02: They eliminated the senior director role that Mr. Jenney held. [00:07:41] Speaker 02: This was a function that HR did. [00:07:43] Speaker 02: It had nothing to do with his supervisor. [00:07:45] Speaker 01: So the merger was in, what, June? [00:07:47] Speaker 02: And it was completed, I believe, July 1 of 2019. [00:07:50] Speaker 02: So after that date is when they started first working on the role mapping, Your Honor, and then went to the RIF. [00:07:57] Speaker 01: The original RIF. [00:07:59] Speaker 01: was created sometime between July 19 and October 23. [00:08:02] Speaker 02: I don't think it could have started in July, Your Honor, just because they had to. [00:08:09] Speaker 01: It was sometime in that range. [00:08:10] Speaker 01: Correct. [00:08:10] Speaker 01: You tell me you can't tell what. [00:08:12] Speaker 02: Correct. [00:08:12] Speaker 01: So it's without a doubt that Jenny was not on the proposed riff until after the October 23 meeting. [00:08:26] Speaker 02: That is correct, Your Honor, but I think a key fact in Mr. Gentile, who was Mr. Jenney's boss, who alleged that he's the one that made the decision to terminate, indicated that he had no role in placing any employee on the RIF. [00:08:43] Speaker 02: His testimony in his deposition was clear. [00:08:45] Speaker 02: In other words, this was entirely a process that was done by HR. [00:08:50] Speaker 02: Mr. Jenney had no role in, while he knew the riff was undergoing, he had no role in deciding who would be included in the riff. [00:08:59] Speaker 02: And he testified to that. [00:08:59] Speaker 01: Wouldn't you think that if he had concerns about Mr. Jenney's disability, which he knew about, that he would have put him on the riff because he had authority to do so, because he did it after October 23rd? [00:09:19] Speaker 02: Yeah, Your Honor, I agree. [00:09:21] Speaker 02: I think because he had concerns about his disability, he ultimately did put him on the riff. [00:09:26] Speaker 01: No, no, no. [00:09:27] Speaker 01: That isn't how I articulated the question. [00:09:29] Speaker 01: So don't do that. [00:09:34] Speaker 01: He knew about the riff, and he could have put Jenny on the riff before October 23, [00:09:46] Speaker 01: But he didn't do so, correct? [00:09:47] Speaker 01: Correct. [00:09:49] Speaker 01: And if he did so only after the meeting. [00:09:54] Speaker 01: So he had authority before and didn't put him on it, but he put him on after the meeting. [00:10:00] Speaker 01: Is that a fair statement? [00:10:02] Speaker 02: That is a fair statement, Your Honor. [00:10:05] Speaker 01: Isn't that just going to indicate that the reason for putting him on the riff list was because of what happened at the October 23rd? [00:10:15] Speaker 01: meeting rather than his disability? [00:10:20] Speaker 02: No, Your Honor, for two reasons. [00:10:22] Speaker 02: Number one, he could have been planning to riff or terminate Jenny all along at the end of the riff and after he announced his organizational plan. [00:10:30] Speaker 01: But that's not good enough. [00:10:32] Speaker 01: You've got to give me something that could have is not good enough to negate this. [00:10:36] Speaker 02: Well, I think it is, Your Honor, because if we look at this at what the courts typically see in these cases, it's oftentimes a plaintiff is using [00:10:45] Speaker 02: the argument of timing and proximity to advance their claim to show intentional discrimination. [00:10:53] Speaker 02: Here, it's the employer that's relying solely on timing to claim that Mr. Jenney could not have been discriminated because he happened to be included on the rift the day after the discussion. [00:11:08] Speaker 02: The Tenth Circuit and the Supreme Court has made clear that timing alone cannot [00:11:13] Speaker 02: justify denying summary judgment on behalf of a plaintiff. [00:11:18] Speaker 02: I think the corollary is also true. [00:11:21] Speaker 02: It is not significant enough to deny or to grant summary judgment in an employer's favor, especially where you have all of the evidence that Mr. Jenny proffered, the timing between his supervisor's knowledge of his request for accommodation and essentially being removed from his position. [00:11:42] Speaker 02: the denial of two travel requests, including one for a significant client. [00:11:47] Speaker 02: Mr. Jenney worked partly on commission and the revenue that he generated. [00:11:52] Speaker 02: So the denial of travel requests that occurred between August and September was also significant. [00:12:01] Speaker 02: So I think the court was, while it's true that a jury could ultimately say maybe that was the nexus, [00:12:10] Speaker 02: That was a question that was appropriate for the jury and not for the district court. [00:12:15] Speaker 02: And unless there are any other questions, I'd like to leave the remainder of time for rebuttal. [00:12:21] Speaker 00: Thank you. [00:12:29] Speaker 03: May it please the court. [00:12:30] Speaker 03: Mark Tolman and the lady here on behalf of L3 Harris Technologies. [00:12:35] Speaker 03: Mr. Jenny asked this court to reverse and remand for a jury trial. [00:12:40] Speaker 03: based on a speculative assertion that his supervisor, Mr. Gentile, as he just said, could have been planning to terminate his employment prior to his pivotal conversation with Mr. Gentile at the October 23, 2019 conversation. [00:12:55] Speaker 03: But as the district court properly observed, quote, by the undisputed evidence, defendants intent to terminate was formed only after the country club conversation, a conversation [00:13:06] Speaker 03: that Mr. Jenney testified was about his displeasure with being placed in an individual contributor role, the only role that Mr. Gentile had set aside for him, was unrelated to his disability or request for accommodations, a conversation with an individual in Mr. Gentile who he testified, I have no idea if he has a bias against me. [00:13:27] Speaker 03: So accordingly, even if we conclude that there's some indication of an inconsistency with their explanation, some indication of pretext, [00:13:35] Speaker 03: The district court got it right when it applied Reeves to conclude that notwithstanding some indication of pretext, there is abundant, uncontroverted evidence of a non-discriminatory reason for discharge, namely Mr. Jenney's response to the proposal that he be placed in an individual contributor role at that offsite meeting. [00:13:56] Speaker 00: Which was? [00:13:58] Speaker 00: What was that response? [00:14:00] Speaker 03: Yeah, sure. [00:14:01] Speaker 00: What was that response? [00:14:02] Speaker 03: Yes, he was angry. [00:14:03] Speaker 03: He said it was bullshit. [00:14:04] Speaker 03: He said, I don't want to be an individual contributor. [00:14:07] Speaker 00: And according to his testimony, he said, he found out about this. [00:14:13] Speaker 00: Nobody tells him about it. [00:14:14] Speaker 00: He finds out about it at a meeting where it's announced. [00:14:17] Speaker 00: I'm removing you from your job and I'm making this an all new job with basically the same title and giving it to another person. [00:14:27] Speaker 00: And he goes up to Mr. Gentile and says, what is happening here? [00:14:32] Speaker 00: Why is this happening? [00:14:35] Speaker 00: I wasn't told what happened to my job. [00:14:38] Speaker 00: I want to apply then for this job, the new job with a new name. [00:14:44] Speaker 00: And he says, Mr. Gentile says, yeah, it's already done deal. [00:14:49] Speaker 00: And he says, well, fix it. [00:14:51] Speaker 00: Fix it is his testimony. [00:14:53] Speaker 00: And he also says that he said to Mr. Gentile, if you can't fix it, then I want another position in the company. [00:15:02] Speaker 00: And if you can't fix it or give me another position, then I want to be packaged out. [00:15:09] Speaker 00: Now, Mr. Gentile says, yeah, he just said he wanted to be packaged out. [00:15:14] Speaker 00: That's a fact question as to who is telling the truth there about that conversation. [00:15:22] Speaker 00: And if you accept that that's a fact question, then you don't have this reason of, oh, he said he wanted to be packaged out, because that's possibly not the truth. [00:15:37] Speaker 00: Right? [00:15:37] Speaker 00: Is that right? [00:15:38] Speaker 03: Judge Parrish below saw it the same way. [00:15:41] Speaker 03: She concluded that there was an issue of fact, a dispute between these two narratives about exactly what was said. [00:15:48] Speaker 03: Did he say put a deal on the table and let's talk? [00:15:50] Speaker 03: Did he say package me out? [00:15:52] Speaker 03: There is some subtle, I would argue, subtle differences. [00:15:55] Speaker 00: And if you believe the plaintiff, which is he was shocked. [00:15:59] Speaker 00: His job was being removed. [00:16:01] Speaker 00: He's told it at a meeting. [00:16:03] Speaker 00: And he says, what is happening here? [00:16:05] Speaker 00: Please fix this. [00:16:07] Speaker 00: What's my job? [00:16:08] Speaker 00: Find me something else, please. [00:16:11] Speaker 00: And if you can't do these things, then OK, package me out. [00:16:15] Speaker 00: And then the next day, he says, [00:16:20] Speaker 00: Mr. Gentile goes and says, oh, he wants to be packaged out, making part of the riff. [00:16:25] Speaker 00: You're asking us to accept Mr. Gentile's reasoning. [00:16:31] Speaker 03: No, not true. [00:16:33] Speaker 03: We've accepted this. [00:16:34] Speaker 00: What evidence is in the record that Mr. Gentile had any idea what he was going to do with the plaintiff before he [00:16:46] Speaker 00: before that meeting? [00:16:47] Speaker 03: Sure, there's evidence in the record about his intention to maintain his status as an individual contributor. [00:16:52] Speaker 03: We have his testimony, but we're not limited to just his word. [00:16:56] Speaker 03: Mr. Banton's email is a key piece of evidence, date of October 24th, right? [00:17:00] Speaker 03: We have that, the timeline you've just laid out, Judge Moritz, is exactly right. [00:17:06] Speaker 03: After this conversation, he immediately reaches out to Mr. Banton in HR, says, we gotta talk. [00:17:11] Speaker 03: Sent him a calendar appointment. [00:17:12] Speaker 03: When Mr. Banton saw the calendar appointment, [00:17:14] Speaker 03: He knows this is October 24th. [00:17:16] Speaker 03: We've got to approve the reduction in force today. [00:17:18] Speaker 03: I hope he's not talking about laying off Mr. Jenney. [00:17:22] Speaker 03: So he writes in this email. [00:17:24] Speaker 03: He says this, the current mapping exercise has him going from a senior director level eight in our current system to a principal level eight individual contributor role in the new 2020 system. [00:17:37] Speaker 03: Now Mr. Jenney argues, oh, that's just something HR was doing. [00:17:40] Speaker 03: He's misconstruing the record. [00:17:43] Speaker 03: Ms. [00:17:43] Speaker 03: Niece, an HR employee, did describe an alignment of job titles task that they were doing. [00:17:49] Speaker 03: They eliminated the senior director position. [00:17:52] Speaker 03: Senior directors would become directors. [00:17:54] Speaker 03: But notably, this is not what Mr. Banton says. [00:17:57] Speaker 03: He says not that he's been re-leveled from a senior director to a director, which is the process that Ms. [00:18:04] Speaker 03: Niece was describing. [00:18:06] Speaker 03: He's been re-leveled from a senior director to an individual contributor role. [00:18:11] Speaker 03: That's not the only key statement in Mr. Banton's email. [00:18:14] Speaker 03: There's one more prior to that. [00:18:17] Speaker 03: Judge Murphy, you were asking about discussions about the reduction in force. [00:18:20] Speaker 03: I agree we don't have a clear date in the record, but plainly it's after the merger in July and before October 23rd. [00:18:27] Speaker 03: Mr. Banton says this, wanted to check in with you to confirm that this is not a discussion about possibly terminating him because [00:18:38] Speaker 03: Based on our earlier conversations, we have not included him in the reduction in force. [00:18:46] Speaker 03: And so, to your question, Judge Moritz, yes, perhaps there is a question of fact about what exactly was said, but Mr. Jenne is not correct when he says, whenever you show pretext, you get a jury trial. [00:19:01] Speaker 00: Let's not forget we do have, as you point out, a very strong district court finding that the reason that was given is implausible. [00:19:10] Speaker 00: It is not essentially true. [00:19:13] Speaker 00: And the district court then said, well, there's got to be one of these exceptions. [00:19:17] Speaker 00: Nothing that you're saying leads me to believe that these very rare exceptions apply here. [00:19:23] Speaker 00: And one is where the record conclusively establishes that some other non-discriminatory reason is the reason for the employer's decision. [00:19:35] Speaker 00: The record must conclusively establish that. [00:19:38] Speaker 00: Or there's a very weak issue of fact as to whether the reason was untrue. [00:19:44] Speaker 00: And there's abundant and uncontroverted evidence [00:19:47] Speaker 00: that no discrimination occurred. [00:19:50] Speaker 00: I don't know of any case where there's this type of evidence of immediately prior to this he's asked for an accommodation and been granted it and then he's turned down for these two travel requests that he normally would not be turned down for. [00:20:05] Speaker 00: And then we have this riff. [00:20:09] Speaker 00: I mean, I don't know how you can fit that into those exceptions. [00:20:13] Speaker 00: Do you see what I'm saying? [00:20:14] Speaker 03: Oh, of course I see what you're saying. [00:20:16] Speaker 03: Let me try to respond to the court's question. [00:20:18] Speaker 00: Keeping in mind the district court's fact finding that the reason given was implausible. [00:20:22] Speaker 03: I'm not sure. [00:20:23] Speaker 03: I remember her saying it was implausible. [00:20:26] Speaker 03: But she does indicate that based on the differences and how that conversation on October 23rd was described alone, there was an indication of pretext. [00:20:35] Speaker 03: Let's look at the travel denials. [00:20:37] Speaker 03: Mr. Jenney does argue that there were [00:20:39] Speaker 03: two international trips that were denied after his accommodation was put in place. [00:20:43] Speaker 03: He testified, though, that there were multiple times he asked to go to Spain before the accommodation was put in place that were denied. [00:20:50] Speaker 03: He testified that all of his domestic travel was approved. [00:20:55] Speaker 03: And Mr. Gentile described the business reasons, including budget. [00:21:00] Speaker 03: And what's more, Mr. Jenne acknowledges that with respect to this trip to the UAE, Mr. Jenne wasn't treated any differently than anyone else. [00:21:07] Speaker 03: because no one was permitted to go. [00:21:10] Speaker 01: With respect to the... Wait a minute, the latter. [00:21:13] Speaker 01: No one was allowed to go, you say? [00:21:17] Speaker 01: No one was allowed to travel, have foreign travel? [00:21:21] Speaker 03: To this particular conference that was denied. [00:21:25] Speaker 03: Okay. [00:21:26] Speaker 03: Not outright. [00:21:27] Speaker 03: There were two instances. [00:21:28] Speaker 01: That's correct. [00:21:31] Speaker 01: There wasn't any real change in travel policy, was there? [00:21:36] Speaker 03: No, there was no change in travel policy. [00:21:38] Speaker 03: And the policy was, though, to cut down on costs. [00:21:41] Speaker 01: So each of the instances are unique in themselves. [00:21:44] Speaker 01: Dealing with Jenny and his travel stuff was not pursuant to a change in travel policy. [00:21:51] Speaker 03: It was just... The policy was already in place to cut down costs. [00:21:56] Speaker 03: And Mr. Dentelli described that he implemented those decisions consistent with that policy on these two trips. [00:22:04] Speaker 03: taking in mind that his other trips were approved. [00:22:08] Speaker 03: I interrupted you because I didn't... I do want to talk about this notion that there is this strong evidence of pretext regarding the differences in how Mr. Jenne describes the October 23rd conversation and how Mr. Gentile describes it. [00:22:23] Speaker 03: Because I don't think Mr. Jenne agrees with you, Judge Moritz, [00:22:26] Speaker 03: that there is a clear disagreement. [00:22:29] Speaker 03: Mr. Jenney says that his account of saying, fix this or put a deal on the table and let's talk. [00:22:35] Speaker 03: And Mr. Jenney's recollection of saying, I don't want to be an individual contributor, so package me out. [00:22:40] Speaker 03: He describes those two accounts as, quote, similar, right? [00:22:45] Speaker 03: So I don't know that we have this strong case of pretext. [00:22:49] Speaker 03: Perhaps Mr. Gentile recalled it incorrectly. [00:22:53] Speaker 03: Perhaps Mr. Jenney did. [00:22:54] Speaker 00: Mr. Jenney noted that. [00:22:58] Speaker 00: There's other things that, particularly the email or letter that he writes to his boss later, Mr. Gentile saying, oh, by the way, here's my new reasons for terminating Mr. Jenney. [00:23:11] Speaker 00: And it's all performance related. [00:23:12] Speaker 00: And he never really knew what his role was in the organization. [00:23:17] Speaker 00: two big reasons that have nothing to do with a reduction in force. [00:23:23] Speaker 00: That is strong evidence of pretext. [00:23:27] Speaker 00: Well, again, it may be evidence of pretext, but it needs to be pretext for... Oh, and then he later changed in his deposition and said, yeah, I didn't fire him for performance reasons. [00:23:36] Speaker 00: It was a rift. [00:23:38] Speaker 03: Well, he never said that he fired him for performance reasons, and I don't believe the email states that. [00:23:42] Speaker 03: He says that he... [00:23:44] Speaker 03: He says, I released the senior director that was never told what his function was in the old structure. [00:23:49] Speaker 03: It goes on to describe that he had a continuity of recurring issues. [00:23:53] Speaker 00: The continuity of recurring issues were performance-related issues. [00:23:57] Speaker 03: That's right. [00:23:58] Speaker 03: He described the emotional outburst as well. [00:24:00] Speaker 00: It's clearly suggesting there were performance issues and that they'd been going on for some time. [00:24:04] Speaker 03: That's right, Judge Moritz. [00:24:06] Speaker 00: And that's different than a riff. [00:24:08] Speaker 00: It's a lot different than a riff, or even saying that he [00:24:12] Speaker 00: would have some individual consulting role. [00:24:15] Speaker 00: It's completely contrary to that. [00:24:20] Speaker 03: It's perhaps consistent with the decision to place him in an individual contributor role. [00:24:25] Speaker 03: I'll grant you that. [00:24:26] Speaker 03: But there's nothing inconsistent. [00:24:28] Speaker 03: Two things can be true at the same time. [00:24:30] Speaker 03: As the court said in the Braun case, the Goldstein case, Mr. Jenney can believe at once. [00:24:35] Speaker 00: It's evidence of pretext, is my point, which is what the district court found. [00:24:39] Speaker 03: Correct. [00:24:40] Speaker 03: And then applied Reeves, right? [00:24:41] Speaker 03: Because Reeves has asked this question, right? [00:24:44] Speaker 03: Hey, the question we're asked is whenever a plaintiff shows a prima facie case and evidence of pretext, [00:24:50] Speaker 03: Are they entitled to a jury trial? [00:24:52] Speaker 03: And the court answered that with the lawyer's two favorite words, right? [00:24:56] Speaker 03: It depends. [00:24:57] Speaker 03: The court did not say, yes, always, absolutely so. [00:25:01] Speaker 03: The court said there will be times, notwithstanding evidence of pretext, when there is abundant, uncontroverted evidence of a nondiscriminatory reason. [00:25:10] Speaker 03: Here, as Judge Murphy pointed out, he had an opportunity to include Mr. Jenney in the reduction in force. [00:25:18] Speaker 03: Closer in time, [00:25:19] Speaker 03: to the accommodation putting in place. [00:25:22] Speaker 03: Mr. Bannon's email confirms, though, that based on their earlier conversations, he was not going to be put in place in the RIF. [00:25:30] Speaker 03: So is there some question of fact about why Mr. Jenney was placed in an individual contributor role? [00:25:36] Speaker 03: Perhaps. [00:25:37] Speaker 03: But this case is not about [00:25:39] Speaker 03: This is not a demotion case. [00:25:41] Speaker 03: This is a termination case. [00:25:43] Speaker 03: Mr. Jenney pleaded it this way. [00:25:44] Speaker 03: He does not allege any cause of action, alleging termination, or excuse me, alleging bias in connection with the decision to put him in an individual contributor role. [00:25:53] Speaker 03: So even if we conclude that there's evidence of pretext or even bias associated with putting him in the individual contributor role, the evidence is still abundant. [00:26:03] Speaker 03: It's uncontroverted. [00:26:04] Speaker 03: that there was no intention to terminate him until the October 23rd offsite conversation. [00:26:11] Speaker 03: And then immediately afterwards, we see a shift. [00:26:14] Speaker 03: Mr. Jenney argued that the district court relied on only two things. [00:26:17] Speaker 03: That is not true. [00:26:19] Speaker 03: Looking at page 14 of the court's decision, the court said the record reveals some other non-discriminatory reason for the employer's decision. [00:26:29] Speaker 03: By the undisputed evidence, the defendant's intent to terminate Mr. Jenney was formed only after the country club conversation, and then she lists the evidence. [00:26:36] Speaker 03: First, this is shown by the undisputedly rushed nature in which Mr. Jenney was added to the RIF list immediately after the conversation at the country club, right? [00:26:46] Speaker 03: Didn't need to be rushed. [00:26:48] Speaker 03: It was going on for weeks. [00:26:49] Speaker 03: He could have added him earlier, but it was only after that offsite conversation, unrelated to disability, unrelated to accommodation. [00:26:56] Speaker 03: Second, the correspondence from human resources signaling a lack of any intent to terminate him before that point. [00:27:04] Speaker 03: And then the court says by all accounts, the country club conversation did not involve in any way any fact related to Mr. Jenney's disability or request for accommodations. [00:27:14] Speaker 03: Instead, it was about the fact, as Mr. Jenney's own counsel acknowledged, he said, I don't want to be an individual contributor. [00:27:21] Speaker 03: That was the only role available for him, and so he was included in a reduction in force. [00:27:26] Speaker 03: We thank the court for your time. [00:27:27] Speaker 03: I see that my time has expired, and we rest on the briefs. [00:27:31] Speaker 03: Thank you. [00:27:31] Speaker 00: Thank you, counsel. [00:27:32] Speaker 00: Rebuttal? [00:27:38] Speaker 02: Your Honors, just briefly, this court's made clear that the Reeves exceptions are only invoked in very narrow and limited circumstances. [00:27:47] Speaker 02: And the problem with the argument regarding the timing from the meeting between Mr. Gentile and Mr. Jenney at the offsite and his inclusion on the riff is the November 26th email that Mr. Jenney sends to his boss where he describes why he actually terminated. [00:28:06] Speaker 02: He doesn't say, Jenny asked me to leave because he didn't want to be an individual contributor, and I wanted to get him the best package possible. [00:28:14] Speaker 02: That's what Mr. Jenny said in his deposition. [00:28:17] Speaker 02: Three weeks after he had terminated Mr. Jenny in an email to his boss, he said, quote, I took it upon myself to fix the department, end quote, I released the senior director that was never told what his function was in the old structure [00:28:33] Speaker 02: under Kevin Kane. [00:28:35] Speaker 02: I had proof he was a continuity of reoccurring issues in organization, engagement, execution, and capture affecting the team and relations within the CS organization. [00:28:48] Speaker 02: In his deposition, Mr. Gentile testified he never had any performance issues with Mr. Jenne. [00:28:57] Speaker 02: Remember, Mr. Jenne is a 27-year employee who had multiple promotions. [00:29:03] Speaker 02: held multiple positions. [00:29:05] Speaker 02: He was in an identical role that after Mr. Gentile learned of his disability and accommodation request, promoted somebody to feel essentially that same role, just with a different title and reporting function, without talking to Mr. Jenny, without posting the position, without interviewing anyone. [00:29:29] Speaker 02: This was all part of a sequence of events that led up [00:29:33] Speaker 02: to Mr. Jenney's termination. [00:29:35] Speaker 02: You cannot say that the 23rd discussion between Mr. Gentile and Mr. Jenney is the reason for the termination when Mr. Gentile himself gave a different reason contemporaneous in time. [00:29:52] Speaker 02: So the only argument, the only fact that the district court relied on was proximity. [00:29:59] Speaker 02: A jury could certainly decide that Mr. Gentile had planned all along to notify Mr. Banton that he was going to riff Mr. Jenney. [00:30:09] Speaker 02: He could have been planning to see if Mr. Jenney would leave once he announced who would place his role. [00:30:15] Speaker 00: What about the evidence that he was planning to put him in an individual consultant role? [00:30:20] Speaker 02: Well, Your Honor, the email from Mr. Banton, I think it's clear [00:30:26] Speaker 02: It's critical for a number of reasons. [00:30:27] Speaker 02: And I think that the defendant employer is making inferences in its favor from that email. [00:30:35] Speaker 02: But it is Mr. Banton that is telling Mr. Gentile that he will be placed in an individual contributor role, not vice versa. [00:30:45] Speaker 00: And I think that's very- There's no evidence in the record that Mr. Gentile ever told the plaintiff this. [00:30:54] Speaker 02: There's no record he told the plaintiff. [00:30:56] Speaker 02: There's no record he told his boss. [00:30:59] Speaker 02: And Mr. Banton's declaration that is part of the record makes clear that the first time that he learned that Mr. Amany would be put in the position that Mr. Gentile or Mr. Jenney had been in was on October 24th. [00:31:14] Speaker 02: So there's nothing in the record that indicates... The day after? [00:31:18] Speaker 02: The day after. [00:31:18] Speaker 02: There's nothing in the record that indicates Mr. Gentile [00:31:24] Speaker 02: had actually told HR he wanted Jenny in an individual contributor role. [00:31:29] Speaker 02: Thank you, Your Honor. [00:31:30] Speaker 00: Thank you both. [00:31:31] Speaker 00: Your arguments have been very helpful. [00:31:33] Speaker 00: The case will be submitted and counsel is excused. [00:31:35] Speaker 00: Thank you.