[00:00:00] Speaker 04:
23-6138, Selman versus Aviation Training Consulting.

[00:00:06] Speaker 04:
Counsel for the appellant, if you'd make your appearance and proceed, please.

[00:00:11] Speaker 00:
Chief Judge Holmes, may it please the court.

[00:00:14] Speaker 00:
I'm Jason Smith, and I'm here on behalf of Nick Selman, who served our country for 16 years in the Marines.

[00:00:21] Speaker 00:
And when he did so, he would fly on angel flights with bodies from Iraq, soldiers from Iraq, and he developed PTSD.

[00:00:31] Speaker 00:
He also developed some physical symptoms.

[00:00:35] Speaker 00:
And the VA eventually awarded him 100% disability for his sacrifice for our country.

[00:00:43] Speaker 00:
Because there's ample evidence that

[00:00:47] Speaker 00:
of a pretext of the stated reason is unworthy of credence, as Justice Scalia required in St.

[00:00:56] Speaker 00:
Mary's Honor Hall.

[00:00:57] Speaker 00:
And because there's evidence that Rick Sofci, who expressed his displeasure with my client's receipt of 100% VA disability benefits, because there's evidence that he was directly involved in the decision,

[00:01:14] Speaker 00:
We're asking the court to reverse the summary judgment of the district court and remain in the case for a trial.

[00:01:21] Speaker 04:
Is it your view that Mr. Sofci was the only biased participant in the decision to not renew him, to let him go?

[00:01:32] Speaker 00:
Well, Mr. Sofci certainly was the person who

[00:01:35] Speaker 00:
strongly expressed his displeasure with my client's disability status.

[00:01:42] Speaker 00:
But there is evidence that Mr. Mueller, who overheard the discussion and who testified later, and we believe falsely, that the key evaluation, the January 31 evaluation on which the employer said they based their recommendation that

[00:02:03] Speaker 00:
Mr. Selman's contract not be renewed.

[00:02:06] Speaker 01:
Is that a separate thesis for your cat's paw theory based on Mr. Mueller?

[00:02:11] Speaker 00:
That is one of the bricks that builds the evidence here, the ample evidence that establishes the cat's paw.

[00:02:18] Speaker 00:
Not only Safji, who is listed on the review as a reviewer, but Mueller testifies that he presented it to Mr. Selman.

[00:02:32] Speaker 03:
But we have case law that says that reviewers or presenters to the decision maker does not support cat's paw.

[00:02:46] Speaker 00:
Actually, there's at least one sensory case that's so held, so wholly.

[00:02:50] Speaker 00:
Yeah.

[00:02:50] Speaker 00:
This court has repeatedly held that if an individual with bias is shown to have influence or leverage over the decision, then it can be evidence

[00:03:02] Speaker 00:
of the causal link establishing the cat's paw.

[00:03:04] Speaker 03:
I suppose it depends on the influence.

[00:03:06] Speaker 03:
It could be so great.

[00:03:07] Speaker 03:
But being a presenter of evidence or a first examiner, we have evidence that that is not cat's paw.

[00:03:17] Speaker 00:
Well, Your Honor, I believe that the evidence, there is the Parker versus United Airlines case in which Chief Judge Holmes was on the panel, where they said when there was an independent third party review after the fact,

[00:03:32] Speaker 02:
that that kind of wiped away the cats.

[00:03:35] Speaker 02:
Even though the review relied significantly on the evidence of the presenter?

[00:03:40] Speaker 00:
Well, in that case, there was no firm evidence that the presenter had expressed any bias.

[00:03:47] Speaker 00:
In this case, it is undisputed that he expressed bias.

[00:03:50] Speaker 00:
That being Mueller?

[00:03:54] Speaker 00:
That being Sofgy.

[00:03:55] Speaker 04:
Well, we'll see.

[00:03:58] Speaker 04:
to your point about putting on bricks, so, you know, putting bricks on to build up to the cat's paw, we have to, what we need to try to determine analytically is who in the process do you claim actually was animated by prohibited bias, you know, or had prohibited animus.

[00:04:19] Speaker 04:
I mean, had some, and so you've said SOFG,

[00:04:24] Speaker 04:
But I mean, let's say that Mueller was an innocent party and just presented something to the next high chain up.

[00:04:33] Speaker 04:
I mean, Mr. Cox was the person who made the ultimate decision.

[00:04:37] Speaker 04:
So I guess what I'm trying to understand just analytically is the taint of bias, is that restricted to softy or does it affect Mueller too?

[00:04:46] Speaker 04:
Not the act of presentation, but are you saying that he also

[00:04:51] Speaker 04:
had some sort of prohibited animus?

[00:04:54] Speaker 00:
Yes, Your Honor.

[00:04:56] Speaker 00:
Good question, and we are.

[00:04:57] Speaker 00:
We're saying Sofci and Mueller had prohibited bias.

[00:05:01] Speaker 00:
And the way you get to it with Mueller is Mueller claims that he showed the evaluation to Selman and that Selman refused to sign.

[00:05:12] Speaker 00:
Selman testified, and it's clear in the record, Selman testified that at page 68,

[00:05:21] Speaker 00:
that he had never, at page 68 and 69, that he had never been presented that evaluation.

[00:05:34] Speaker 00:
And no one had ever discussed him.

[00:05:37] Speaker 00:
That same evaluation that says Safji was a reviewer.

[00:05:41] Speaker 00:
So the fact that Mueller's alibi, that he presented this evaluation

[00:05:50] Speaker 00:
Selman and Selman didn't sign it.

[00:05:53] Speaker 00:
Selman proves the alibi is false.

[00:05:55] Speaker 04:
Okay.

[00:05:56] Speaker 04:
And your view would be that that proving of falsity in itself sort of bespeaks

[00:06:02] Speaker 04:
or is an indicator of prohibited bias?

[00:06:06] Speaker 00:
Yes.

[00:06:06] Speaker 00:
OK.

[00:06:07] Speaker 00:
Because Mueller also was a witness to the interaction.

[00:06:10] Speaker 00:
And Safji is listed as a reviewer on the evaluation that Mueller claims to have shown Selman, but Selman denies he was ever shown.

[00:06:19] Speaker 00:
And his signature does not appear, while his signature does appear on the January 9th review.

[00:06:25] Speaker 04:
OK.

[00:06:25] Speaker 04:
Well, one of the things that

[00:06:28] Speaker 04:
You mentioned Parker v. United Airlines.

[00:06:31] Speaker 04:
One of the things that needs to be clear here, it seems to me, is the question of, well, Catspaw turns on whether the person who made the decision uncritically relied on essentially the material that had been tainted by Bides.

[00:06:52] Speaker 04:
And what is your best evidence that Mr. Cox

[00:06:57] Speaker 04:
uncritically, that's the language, relied on what had been presented to him, because my, you know, looking as best I could tell, that's not true.

[00:07:06] Speaker 04:
I mean, that he evaluated the information, including the fact that the flight certificate was not renewed.

[00:07:15] Speaker 04:
And that in and of itself, is it not grounds for not renewing his contract?

[00:07:22] Speaker 00:
Well, his certificate was renewed.

[00:07:24] Speaker 00:
His certificate was renewed the day before he was told that his contract wasn't renewed.

[00:07:29] Speaker 00:
And in fact, the HR person told him, we'll get you a contract now that it has been renewed.

[00:07:36] Speaker 00:
His FAA certificate was renewed.

[00:07:40] Speaker 04:
Before the decision was made?

[00:07:42] Speaker 00:
Before the decision was made, before February 5.

[00:07:46] Speaker 00:
Well, OK.

[00:07:49] Speaker 04:
Well, let's assume that's true then.

[00:07:53] Speaker 04:
Let me check that.

[00:07:54] Speaker 04:
But let's take that as a given.

[00:07:57] Speaker 04:
But that doesn't change the basic premise of my question, which I want to understand from you, that Mr. Cox, based upon the information he had, and let's assume he could have been wrong about whether he thought the flight certificate was renewed, that in itself would not give you a claim of discrimination.

[00:08:17] Speaker 04:
So the point would be, where is there evidence that Mr. Cox

[00:08:22] Speaker 04:
uncritically relied on things that would have been tainted by bias?

[00:08:29] Speaker 00:
If you review the affidavit, Mr. Cox relies on two vice presidents' recommendations.

[00:08:35] Speaker 00:
One of the vice presidents is the vice president who disciplines Sofci for making the biased remarks against Mr. Selman.

[00:08:48] Speaker 00:
The employer themselves argues that the reason they recommended his non-renewal was the January 31st review, the January 31st review that my client did not sign, although he signed the January 9th review, and he refused to sign, that they claimed he refused to sign, but he claims he was never shown.

[00:09:13] Speaker 00:
The district court, in its opinion, recounts that that is the primary reason for the denial of the renewal of the contract.

[00:09:22] Speaker 04:
The January 31st?

[00:09:23] Speaker 04:
Yes.

[00:09:24] Speaker 04:
OK.

[00:09:25] Speaker 04:
The one that he says that was not presented to him, and he didn't sign it?

[00:09:29] Speaker 00:
Yes.

[00:09:29] Speaker 04:
OK.

[00:09:30] Speaker 04:
Well, let's just operate from that factual universe.

[00:09:35] Speaker 04:
Even then, the question becomes, is there a basis to believe

[00:09:42] Speaker 04:
Not that Mr. Cox was misguided, but that Mr. Cox did not undertake his own examination of the facts and determine to act on non-renewal of the contract.

[00:09:58] Speaker 04:
Because the question is, under the Caspar theory, as sort of amplified by Parker, that's really what we're focused on.

[00:10:06] Speaker 04:
And that's the only way that you can prevail.

[00:10:10] Speaker 00:
United States Supreme Court in Reeve said, you look at the actual decision maker, not the titular decision maker.

[00:10:18] Speaker 00:
And in Parker, the analysis was that there was an investigation through a grievance process.

[00:10:26] Speaker 00:
And based on that information, the decision maker made the decision without the taint of the FMLA.

[00:10:35] Speaker 00:
In that case, it was FMLA leave.

[00:10:38] Speaker 00:
In this case,

[00:10:39] Speaker 00:
The review was the reason that the non-renewal was recommended.

[00:10:47] Speaker 00:
One of the two decision makers and that they say the actual decision makers were the two vice presidents, one of whom was aware of the complaint.

[00:10:55] Speaker 00:
There's no evidence that Cox did any independent investigation, that he just reviewed the information that was presented to him and he rubber stamped the decision

[00:11:07] Speaker 00:
that the two vice presidents made.

[00:11:08] Speaker 01:
Did you depose him?

[00:11:10] Speaker 00:
Cox?

[00:11:11] Speaker 00:
We did not.

[00:11:12] Speaker 01:
Why not?

[00:11:14] Speaker 00:
Well, we deposed five different people.

[00:11:17] Speaker 00:
We didn't depose Mueller, de Devin.

[00:11:23] Speaker 00:
I think we deposed Young, we deposed Sofci, and we deposed one other person.

[00:11:32] Speaker 00:
Because we thought Cox, there was no showing that Cox had done anything independent to make a decision.

[00:11:40] Speaker 00:
He merely relied on information that was provided to him.

[00:11:44] Speaker 04:
Well, the point is you needed to prove that.

[00:11:46] Speaker 04:
I mean, that's the basis of cat's paw theory that you need to show

[00:11:50] Speaker 04:
that that individual, that person who signed off, you know, titular head or otherwise, is the, that person is the acting party for this termination.

[00:12:00] Speaker 04:
And to that point, isn't it undisputed that Mr. Cox, he didn't know about the HR complaint, he didn't know about the disabilities, he didn't know about the reasons for the FAA certificate issue, he didn't know any of that, right?

[00:12:13] Speaker 00:
Well, I don't know that he said that he didn't know about the disabilities, because it was on my client's application.

[00:12:18] Speaker 00:
But with regard to Mr. Cox, the standards set forth in Parker, that involved a full-scale investigation.

[00:12:30] Speaker 00:
If you look at Cox's declaration, Cox doesn't indicate that he did a full-scale investigation, as the court said let the employer off the hook in Parker.

[00:12:42] Speaker 00:
The Supreme Court in Reeves said, you look at the actual decision maker.

[00:12:46] Speaker 00:
And the actual decision maker here is Sofci.

[00:12:50] Speaker 00:
Sofci recommends.

[00:12:51] Speaker 04:
Parker, Sofci, did Sofci have the ability to fire the plaintiff?

[00:12:58] Speaker 00:
He was at the Kuwait location.

[00:13:01] Speaker 00:
He was the highest ranking official.

[00:13:03] Speaker 00:
And he is the person who first recommended

[00:13:07] Speaker 00:
Selman not be renewed.

[00:13:09] Speaker 04:
Well, that didn't answer the question.

[00:13:10] Speaker 04:
The question is, could he fire him or not renew him?

[00:13:14] Speaker 04:
And the answer is no, right?

[00:13:16] Speaker 00:
Well, he could recommend his not renewing.

[00:13:19] Speaker 04:
OK.

[00:13:19] Speaker 04:
Well, then he was not the final decision maker.

[00:13:21] Speaker 04:
I mean, Reeves, known for its pretext analysis, what about Reeves' apply to cat's paw theory?

[00:13:28] Speaker 00:
Well, Reeves, there was a question as to whether the supervisor was the actual decision maker.

[00:13:35] Speaker 00:
If you look at the writing in Reeves, they focused on the decision maker, who made the age-related comments, too old to come over.

[00:13:44] Speaker 00:
You were so old, you came over on the Mayflower.

[00:13:46] Speaker 00:
And they focused on his comments to say that the Fifth Circuit had parsed the evidence too much, and that there was a fact issue with regard to whether or not there was some evidence that there was age animus by the actual decision maker.

[00:14:03] Speaker 04:
Was Reeves the cat's paw case?

[00:14:05] Speaker 00:
Reeves is the precursor to Staab, where they discuss the company's liability for a supervisor who's not a final decision maker.

[00:14:15] Speaker 00:
They don't use the term cat's paw, but they conduct that analysis.

[00:14:19] Speaker 00:
Unless you have anything else, I'll reserve my remaining time for rebuttal.

[00:14:27] Speaker 00:
Thank you.

[00:14:34] Speaker 05:
Your honors may please the court.

[00:14:36] Speaker 05:
I'm Phil Bruce, representing Appellee Aviation Training Consulting.

[00:14:40] Speaker 05:
Plaintiff admitted without any attempt to distinguish or discuss all of ATC's undisputed material facts.

[00:14:49] Speaker 05:
That includes the very reasons and motivations the decision makers came to in deciding not to renew Mr. Soman's one-year contract.

[00:14:57] Speaker 05:
The only evidence we have in the record is their declarations.

[00:15:01] Speaker 05:
There is nothing in their decisions or the declarations

[00:15:04] Speaker 05:
that ties that to Softee's recommendation, nor is there any other evidence that does so.

[00:15:09] Speaker 05:
And plaintiff admitting these facts, as the district court noted, is fatal to his case.

[00:15:15] Speaker 05:
And ATC would respectfully ask that this court affirm for several reasons.

[00:15:19] Speaker 05:
First, plaintiff has no evidence of a triable cat's paw theory.

[00:15:24] Speaker 05:
As Chief Judge Holmes has referenced, the gist of the cat's paw theory is that the plaintiff has to show there was some uncritical reliance

[00:15:32] Speaker 05:
upon the alleged bad actor, or Safji's recommendation here.

[00:15:36] Speaker 05:
But here, there is no record evidence that the decision makers relied upon Safji's recommendation in the first place.

[00:15:43] Speaker 05:
And I can't stress that enough.

[00:15:44] Speaker 05:
There's nothing in here.

[00:15:45] Speaker 03:
You can't stress it enough.

[00:15:47] Speaker 03:
What input did the decision makers, that is Young and Stevens, what input did they have other than Safji's comments and Cox?

[00:16:00] Speaker 05:
Yes, your honor, so there's there's really three things that would even assuming they had relied upon softies recommendation There's three independent bases for their decision that would sever any causal connections.

[00:16:12] Speaker 05:
The first is Mueller's Review and view of plaintiffs marginal performance was what they relied upon which is both in the performance evaluation and in a separate email where Mueller says I'm ranking him three of three of the least

[00:16:28] Speaker 05:
loan masters and ranking him.

[00:16:29] Speaker 05:
And did they say, did the decision-makers say, that was the reason we decided not to renew?

[00:16:34] Speaker 05:
That's one of them, Your Honor.

[00:16:36] Speaker 05:
The second is Mike Young, he was involved in the recommendation process, said that based on his own view of plaintiff's performance, that it was consistent with what Mueller had observed, and that when Young had worked with plaintiff in Kuwait for approximately six months from April to September,

[00:16:56] Speaker 05:
He saw that he was performing below the other load masters.

[00:16:59] Speaker 05:
And it's admitted that he even coached him to the extent that he needed to tighten up his performance.

[00:17:04] Speaker 04:
Is there any evidence that Mueller's review, that Mueller was operating under some sort of prohibited animus as it relates to Mr. Selman?

[00:17:16] Speaker 04:
I mean, that's what, in part, I heard from opposing counsel today, that Mueller would be in the scope of people who was operating from prohibited animus.

[00:17:27] Speaker 05:
No, Your Honor.

[00:17:28] Speaker 05:
And I think Plaintiff's point here in argument was that there's some dispute over whether he actually showed the review to Plaintiff or not, which nothing in that, even taking that as true, raises some evidence or reference to any type of discrimination or retaliatory animus.

[00:17:45] Speaker 05:
And Plaintiff has said that Mueller saw this, what we've referred to as the November incident, the conversation between Safji and Plaintiff.

[00:17:52] Speaker 05:
He says he was there.

[00:17:52] Speaker 05:
But that's not accurate.

[00:17:54] Speaker 05:
There's no record evidence.

[00:17:56] Speaker 05:
that he was there.

[00:17:57] Speaker 05:
Plaintiff admits that he never spoke to Mueller about his PTSD or any specific disability.

[00:18:03] Speaker 05:
He admits he never spoke to Mueller about his complaint to HR, which is the actual protected conduct that's at issue, not just this November incident.

[00:18:12] Speaker 05:
Undisputed material facts.

[00:18:13] Speaker 05:
As plaintiff admits, he has no personal knowledge of what Mueller knew about the November incident, that he never told him about that.

[00:18:23] Speaker 05:
Undisputed Material Fact 13 is key.

[00:18:27] Speaker 05:
And that one, Safji, Cox, Stevens-Young, and the HR director, Williams, submitted never told Mueller about the November incident or the complaint to HR.

[00:18:38] Speaker 05:
And none of those individuals had any reason to believe that Mueller knew about that.

[00:18:43] Speaker 05:
In fact, I don't think in his briefing plaintiff even raises any argument that Mueller knew of the actual protected conduct of the report to HR as opposed to just

[00:18:53] Speaker 05:
this conversation between Sofg and Plainton.

[00:18:56] Speaker 01:
Why couldn't a jury infer animus from that?

[00:18:58] Speaker 01:
If Mueller testified he heard about the argument between Mr. Sofg and Selman?

[00:19:04] Speaker 05:
Your Honor, he didn't testify to that.

[00:19:05] Speaker 05:
In fact, he testified that he was not there on that day, and he had no knowledge of the November incident until well after he did the performance evaluation.

[00:19:15] Speaker 05:
And he didn't even know about the complaint to HR until his own contract was not renewed, and he was no longer working at the company.

[00:19:23] Speaker 05:
And plaintiff's own words and testimony show that Mueller was not a witness.

[00:19:27] Speaker 05:
So plaintiff was asked in his deposition, he was present, and he testified that there was three people there, Jean Colley, Jacob, and Lonnie Anderson.

[00:19:35] Speaker 05:
And on Appendix 186, you see Selman's own notes of this conversation, and he does not reflect Mueller being president.

[00:19:43] Speaker 05:
At most, plaintiff points to testimony that Mueller would often work in his office, which was apart from the bullpen where this conversation took place,

[00:19:51] Speaker 05:
with his door open and his headphones on.

[00:19:54] Speaker 03:
And none of that is an inference of any type of knowledge or of either the November incident or... So you say there was three people that gave input to the ultimate decision makers of Young and Stevens.

[00:20:09] Speaker 03:
You're talking about Cox, you talked about Mueller, who is the third one?

[00:20:12] Speaker 05:
So the three people, Your Honor, are Dennis Stevens, Mike Young, and Robert Cox.

[00:20:17] Speaker 03:
And on Robert Cox as chief... Young, Cox,

[00:20:21] Speaker 03:
And Stevens was one of the ultimate decision makers.

[00:20:28] Speaker 05:
Yes, he made a recommendation to Mr. Cox that made the final determination.

[00:20:32] Speaker 03:
Did Cox do it unilaterally and not, so Cox just could do that all completely on his own?

[00:20:41] Speaker 05:
Well, he didn't take an uncritical view of this decision, because one, he relied upon Mueller's views of Selman's marginal performance.

[00:20:49] Speaker 05:
He relied upon Young's own personal observations in Kuwait.

[00:20:53] Speaker 05:
And then third, as Chief Judge Holmes noted, he also looked at the fact that Mr. Selman did not timely renew his required FAA medical certificate.

[00:21:02] Speaker 05:
And to Robert Cox, that indicated that Mr. Selman had issues with the same things that Mueller did, including

[00:21:10] Speaker 05:
issues or marginal performance with communication, initiative, and dependability.

[00:21:15] Speaker 04:
Was it true that he had his certificate by the time that he was terminated or not renewed?

[00:21:20] Speaker 05:
I don't know the timing.

[00:21:21] Speaker 05:
I don't know if there's any record evidence that Mr. Cox knew that it had been renewed.

[00:21:25] Speaker 05:
And in fact, I don't think it's the fact that it had been renewed as it is that it was untimely renewed, that it had, in fact, and admittedly expired for a period and should have been renewed before then.

[00:21:40] Speaker 05:
And I want to also address that even if Mueller did know about this November incident or the complaint under the court's jurisprudence, including the Anderson v. Aol case that we've cited, that's not sufficient to create any pretext.

[00:21:56] Speaker 05:
And under plaintiff's theory of the case that Mueller somehow has some bias or animus, retaliatory or discriminatory animus towards plaintiff, he would have to show that Mueller

[00:22:08] Speaker 05:
both had that animus and had an intent to cause an adverse employment action.

[00:22:14] Speaker 05:
And there's no evidence of that intent, as we have covered.

[00:22:17] Speaker 05:
And merely not joking around with him is not sufficient to get there under, for example, Kenfield versus Colorado Department of Public Health, where court held that just an unfriendly work environment's not evidence of pretext.

[00:22:31] Speaker 04:
And by the plaintiff's own view of the case,

[00:22:37] Speaker 04:
Sofci and Mueller.

[00:22:39] Speaker 04:
And beyond that, when Mr. Young looked across the scope of what evidence was available, he would also have Stevens, Young, and his knowledge of untimely renewal of the certificate.

[00:22:54] Speaker 05:
That's correct, Your Honor.

[00:22:54] Speaker 05:
Yes.

[00:22:55] Speaker 05:
He had all three bases that would cancel out any causal link that when Mr. Cox was looking at those.

[00:23:04] Speaker 05:
And there's also no intent to cause any adverse action by Mr. Mueller.

[00:23:08] Speaker 05:
There's no facts that Mueller made any type of recommendation as to Mr. Selman's renewal.

[00:23:15] Speaker 05:
All he was doing was merely passing on his own views of plaintiff's performance.

[00:23:21] Speaker 05:
And a plaintiff must establish more than influence or input in the decision-making process for there to be a cat's paw theory.

[00:23:28] Speaker 05:
I also want to address that plaintiff in Softy not signing this performance evaluation is not evidence of pretext for several reasons.

[00:23:36] Speaker 05:
First, as the district court analyzed this correctly, there's nothing in the record that shows there was a substantial procedural irregularity that would show that Mueller did not honestly believe the substantive views of Sellman's marginal performance.

[00:23:50] Speaker 05:
And one thing you can look at that, and that's the Doak versus PPG Industries case and the Barry T. Mobile case that we cite,

[00:23:57] Speaker 05:
is plaintiff ignores the email from Mueller saying, here's additional thoughts I have on him.

[00:24:02] Speaker 05:
Plaintiff has not identified any argument or policy that would prohibit the decision makers from looking at those other comments outside of the performance evaluation.

[00:24:14] Speaker 05:
And there's also no established policy that's in place, and that's admitted.

[00:24:19] Speaker 05:
It's admitted that the performance evaluations did not start until Sofci took over in September as the director of operations

[00:24:26] Speaker 05:
and that all three of the decision makers, Young, Stevens, and Cox, were not aware of what policy was in place at the time.

[00:24:34] Speaker 05:
And that is similar to the Berry case, where this court discussed that there was no evidence, so there was undisputed, that the decision makers were not aware of any rigid policy in place.

[00:24:46] Speaker 05:
And it's the same thing here.

[00:24:47] Speaker 05:
So plaintiffs can't point to any established policy.

[00:24:52] Speaker 04:
Further, Mueller testified that she- If I can hit the pause button for a second.

[00:24:56] Speaker 04:
It's my recollection that you've made arguments here about whether they satisfy the prima facie case as it relates to the first prong, right?

[00:25:05] Speaker 04:
Yes, Your Honor.

[00:25:07] Speaker 04:
Even though those arguments obviously are preserved and before us, there wouldn't be anything inappropriate about us going to the third pretext prong in resolving this matter, right?

[00:25:20] Speaker 05:
You're correct, Your Honor.

[00:25:21] Speaker 05:
And the district court itself also is assumed without

[00:25:24] Speaker 05:
analyzing the crime of the face of the case.

[00:25:26] Speaker 05:
He assumed that and then ruled on pretext, among others.

[00:25:30] Speaker 05:
And you can do the same thing here.

[00:25:31] Speaker 05:
We raise those because it's a de novo review.

[00:25:33] Speaker 05:
Sure.

[00:25:36] Speaker 05:
Also plaintiff has not actually pointed to anything specific in the policy itself, even if there was one that was established.

[00:25:43] Speaker 05:
He's not pointed to the language.

[00:25:45] Speaker 05:
The language actually sets forth a two-part process for performance evaluations, one is you do

[00:25:51] Speaker 05:
self-evaluation of sorts in that section 1.3 of the policy.

[00:25:55] Speaker 05:
And that requires the rater to meet with the employee and talk about the obligations and the goals of the employee for that job.

[00:26:03] Speaker 05:
The second part is section 1.4, which is the actual performance evaluation.

[00:26:08] Speaker 05:
And nothing in that section requires, in its terms, the rater to meet with the employee.

[00:26:13] Speaker 05:
So plaintiffs not pointed to any specific policy language that was not followed.

[00:26:19] Speaker 05:
I also want to address the USERA issue.

[00:26:22] Speaker 05:
that plaintiff has raised.

[00:26:24] Speaker 05:
And the court can affirm the district court on the USERRA claim for really two main reasons.

[00:26:29] Speaker 05:
First is, because of all the same reasons we have talked about, equally apply to whether there is a tribal issue for a USERRA claim.

[00:26:37] Speaker 05:
But in addition to that, plaintiff admits that the company knew he was a veteran.

[00:26:44] Speaker 05:
This position

[00:26:45] Speaker 05:
required, if not highly preferred, military service because of the nature of the job working in Kuwait and training the Kuwait Air Force.

[00:26:53] Speaker 05:
Moreover, all of the decision makers are of the same protected class as plaintiff.

[00:26:57] Speaker 05:
That is, they are all disabled American veterans.

[00:27:00] Speaker 05:
And this court stirs prudence.

[00:27:02] Speaker 05:
And many others have said that if the decision maker is of the same protected class, that belies any suggestion of pretext.

[00:27:11] Speaker 05:
But beyond that, plaintiff doesn't make any type of USERA claim as a matter of law, because if you look at the plain language of USERA, nothing in the anti-discrimination or anti-retaliation provisions of USERA and 38 USC 4311 reference disability or particularly VA disability ratings.

[00:27:33] Speaker 05:
And so there's nothing in the plain language of the statute that would give rise to

[00:27:37] Speaker 05:
a USERA claim.

[00:27:38] Speaker 01:
Are you aware of any court that has recognized that USERA does cover disability discrimination?

[00:27:44] Speaker 05:
I am not, Your Honor, and I know the plaintiff has pointed to any case that has been.

[00:27:48] Speaker 05:
Most plaintiffs has argued, well, this is a broad remedial statute, and so we need to broadly interpret it.

[00:27:53] Speaker 05:
But that doesn't allow the court to add in information that's not in the plain language or an interpretation that's not in the plain language.

[00:28:00] Speaker 05:
Moreover, if you look at the statutory structure of USERA,

[00:28:05] Speaker 05:
It has the anti-retaliation provisions and then the re-employment provisions.

[00:28:12] Speaker 05:
And USERA has a unique escalator principle, meaning that if a service member goes and performs their military obligations and comes back, they have to be put back in the place that they would have been in, including raises, promotions.

[00:28:25] Speaker 05:
Well, in Congress, obviously, you could see that there could be issues of putting an employee into not just the same position, but a higher position.

[00:28:32] Speaker 05:
And so in the re-employment provisions of the statute, Congress did address, what do you do with a service-connected disability?

[00:28:39] Speaker 05:
And that's utterly absent from the anti-discrimination, anti-retaliation provisions.

[00:28:44] Speaker 05:
And Congress didn't think there was a gap there, because they had passed the ADA four years earlier.

[00:28:50] Speaker 05:
And so if there is a service member that has a disability, whether it's service-connected or not, they still have a remedy.

[00:29:00] Speaker 05:
And then to your point, Judge,

[00:29:02] Speaker 05:
I'm not aware of any cases that have held that USERRA includes any type of allegations or claim based off of a service-connected disability or particularly references to VA disability rating.

[00:29:19] Speaker 05:
And with that, I see that my time is up unless judges have any further questions.

[00:29:24] Speaker 05:
Thank you.

[00:29:26] Speaker 04:
Thank you for your argument, counsel.

[00:29:30] Speaker 00:
May I please support?

[00:29:32] Speaker 00:
Real quick, counsel misrepresented the record with regard to Mueller and Mueller's awareness of the interaction between Safji and Selman.

[00:29:42] Speaker 00:
At appendix 38 and 132, at appendix 123, 124, 132, Mueller testifies at length about him hearing the argument that lasted 20 or 30 minutes

[00:29:59] Speaker 00:
where Safji went on a tirade against Selman because of Selman details what he told him.

[00:30:07] Speaker 00:
He called him a criminal, that he called him a cripple.

[00:30:10] Speaker 00:
So that evidence is clear.

[00:30:12] Speaker 00:
And then Mueller is the one who is caught in a lie because he claims he showed it to Selman.

[00:30:19] Speaker 00:
And Selman, under oath, denies that he ever saw that.

[00:30:23] Speaker 00:
And all of the decision makers say that the review

[00:30:28] Speaker 00:
was a factor in their decision.

[00:30:30] Speaker 00:
And that's the but for cause, a factor.

[00:30:34] Speaker 00:
There can be more than one factor is enough evidence to show discrimination in the decision.

[00:30:42] Speaker 00:
So Mueller's review, which Softee is listed as a reviewer on the document at page 48 of the deposition, Mueller concedes that Softee is a reviewer.

[00:30:58] Speaker 00:
And that bias with the comments, with the discipline.

[00:31:03] Speaker 04:
Who disciplines Saatchi?

[00:31:07] Speaker 00:
Stevens, who was the decision maker, who was one of the two decision makers, the vice presidents, who make the actual decision that was reviewed by Cox.

[00:31:20] Speaker 00:
They characterize him as one of the two actual decision makers.

[00:31:26] Speaker 00:
So that is the link that shows that they had influence or leverage over the decision, and that Selman's disability and his complaint of disability discrimination was a factor, was a cause of, at least there's ample evidence that a jury should decide that issue, unless you have any further questions.

[00:31:46] Speaker 04:
I'll say that.

[00:31:47] Speaker 04:
Thank you, counsel.

[00:31:49] Speaker 04:
You're at 142 over.

[00:31:50] Speaker 04:
No?

[00:31:50] Speaker 04:
All right, thank you.

[00:31:52] Speaker 04:
Thank you.

[00:31:52] Speaker 04:
Case is submitted.