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

[00:00:03] Speaker 03:
Well, good morning and welcome to the Ninth Circuit.

[00:00:06] Speaker 03:
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.

[00:00:13] Speaker 03:
We're grateful for court staff who have helped us run this smoothly notwithstanding some weather setbacks and and Other logistical issues, but we asked 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 also know that

[00:00:35] Speaker 03:
The first case I expect will need all the time.

[00:00:41] Speaker 03:
For those on the video, you don't need to use all your time in the second case, but we're anxious to hear whatever the parties want to say in defense of their clients.

[00:00:56] Speaker 03:
So we're ready to proceed with the oral argument calendar.

[00:01:00] Speaker 03:
There's one submitted case, Wang versus Bondi, and the first case set

[00:01:04] Speaker 03:
for argument is Crowe versus Averell, case number 25-1400.

[00:01:10] Speaker 03:
All right.

[00:01:22] Speaker 04:
Good morning, Your Honors.

[00:01:26] Speaker 04:
if I may reserve three minutes rebuttal.

[00:01:29] Speaker 04:
Thank you.

[00:01:29] Speaker 04:
May it please the court, Christopher Bonk on behalf of petitioner Stephen Crow.

[00:01:35] Speaker 04:
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.

[00:01:45] Speaker 04:
The first being on Mr. Crowe's reprisal claim and ruling on summary judgment.

[00:01:50] Speaker 04:
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.

[00:02:02] Speaker 04:
Second on the hostile work environment you claim can we back?

[00:02:05] Speaker 03:
Let's just take this one at a time.

[00:02:07] Speaker 03:
I mean this is You know sort of complicated as you get into all these issues so you on the first one on the retaliation on that 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.

[00:02:28] Speaker 03:
So the only thing before us is the pre-termination issues, right?

[00:02:32] Speaker 03:
Because the termination we already held was not discriminatory.

[00:02:39] Speaker 04:
That's been disposed of, Your Honor.

[00:02:40] Speaker 04:
Yes, correct.

[00:02:40] Speaker 04:
It's only the pre-termination issues.

[00:02:42] Speaker 03:
And so to what degree does that prior decision inform our decision?

[00:02:47] Speaker 03:
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.

[00:02:54] Speaker 04:
And of course, there was an argument below on the law of the case and how that impacts it.

[00:02:59] Speaker 04:
The district court did dispose of that here.

[00:03:01] Speaker 04:
I think that was disposed of at the end of the day correctly.

[00:03:05] Speaker 04:
That was correctly set aside.

[00:03:07] Speaker 03:
And I'm not suggesting that law of the case controls.

[00:03:09] Speaker 03:
I think that's clearly true.

[00:03:10] Speaker 03:
I mean, our prior case clearly said

[00:03:13] Speaker 03:
Pre-termination goes back, but they made it findings that you know, he was properly terminated And so really all you can the only argument it seems to me that's left for you is that the investigation was opened There was a discriminatory discriminatory basis for the investigation to be open

[00:03:34] Speaker 03:
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.

[00:03:40] Speaker 04:
And the decision maker at issue in the earlier case for the decision to terminate is Balsot.

[00:03:48] Speaker 04:
So Ballesteros was not the deciding official.

[00:03:52] Speaker 04:
So Ballesteros was the proposing official.

[00:03:53] Speaker 04:
And his animus is at issue here.

[00:03:56] Speaker 04:
Oda's animus is at issue here.

[00:03:58] Speaker 04:
They were not the deciding official for the termination that was resolved.

[00:04:00] Speaker 03:
So their animus... Right, but that goes to opening the investigation.

[00:04:04] Speaker 03:
Doesn't that roll in?

[00:04:06] Speaker 03:
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.

[00:04:19] Speaker 04:
The actual initiation of the investigation was Ballesteros assigning Oda to initiate that.

[00:04:24] Speaker 04:
But their animus is both at issue in this absolutely.

[00:04:28] Speaker 03:
OK, so Oda wasn't responsible for opening the investigation.

[00:04:32] Speaker 03:
Sewell was, I guess.

[00:04:34] Speaker 03:
Sewell filed the complaint against Crowe.

[00:04:36] Speaker 03:
OK, so let's take that apart then.

[00:04:38] Speaker 03:
So you were complaining about the investigation and that Oda did it.

[00:04:44] Speaker 03:
Oda, it was handed over to him.

[00:04:48] Speaker 03:
He did the investigation.

[00:04:49] Speaker 03:
He had animus.

[00:04:49] Speaker 03:
Therefore, here's the problem, though.

[00:04:52] Speaker 03:
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.

[00:05:05] Speaker 04:
And I think that's a really important point for our purposes here for the pre-termination issue.

[00:05:09] Speaker 04:
And the district court gets into error in this within the assessment of kind of justifying its ultimate finding on summary judgment.

[00:05:20] Speaker 04:
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.

[00:05:27] Speaker 04:
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.

[00:05:34] Speaker 04:
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.

[00:05:46] Speaker 03:
Is it that the investigation was initiated, or is it how the investigation was conducted?

[00:05:51] Speaker 03:
It is both, Your Honor.

[00:05:52] Speaker 03:
Those are both.

[00:05:52] Speaker 03:
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-termination actions, which included the investigation itself, and this was further developed.

[00:06:05] Speaker 04:
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, then, because that seems to be clearly

[00:06:17] Speaker 03:
But I don't understand your claim for opening the investigation.

[00:06:21] Speaker 03:
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.

[00:06:29] Speaker 04:
And I think it very well could have been investigated.

[00:06:32] Speaker 04:
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.

[00:06:47] Speaker 04:
There was no investigation.

[00:06:48] Speaker 04:
There was simply just a written reprimand.

[00:06:50] Speaker 04:
And that's part of the issue here.

[00:06:52] Speaker 04:
There's a complaint against Crowe and there's a complaint against Oda.

[00:06:56] Speaker 04:
Ballesteros gets instruction to look into it, the same instruction for both.

[00:06:59] Speaker 04:
Ballesteros initiates an investigation into Crowe, appoints Oda as the investigator.

[00:07:04] Speaker 04:
No investigation is initiated into Oda.

[00:07:06] Speaker 04:
Instead, Ballesteros simply issues him a written reprimand and says, we're done with it.

[00:07:12] Speaker 04:
But there is a disparate treatment.

[00:07:14] Speaker 04:
They're both of the same, similar situated otherwise.

[00:07:16] Speaker 04:
And there's this very clear distinction effect.

[00:07:19] Speaker 04:
And this is one of the really important points, I think, on these disputes effect that the district court ultimately weighs in favor of the movement, the government in this matter, on that.

[00:07:29] Speaker 04:
The district court, in making that comparator determination between Oda and Crow, why one was investigated, why one wasn't, looks at, flags this concern about, well,

[00:07:39] Speaker 04:
Well, one claim was Sowell 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.

[00:07:46] Speaker 04:
That's an incredibly important material fact in dispute here.

[00:07:50] Speaker 04:
And I think the Sowell's complaint itself against Crowe in volume two at 269, Sowell 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.

[00:08:06] Speaker 04:
He's saying he's saying things I don't agree with.

[00:08:07] Speaker 04:
I think he's lying.

[00:08:09] Speaker 04:
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.

[00:08:15] Speaker 04:
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 Ota was assigned to investigate this.

[00:08:23] Speaker 03:
Of course, that is your strongest point.

[00:08:26] Speaker 03:
I failed to understand.

[00:08:28] Speaker 03:
I'm interested in hearing from this.

[00:08:29] Speaker 03:
I do not understand why Ota was assigned to investigate this.

[00:08:33] Speaker 03:
That just defies common sense.

[00:08:36] Speaker 03:
But I don't know whether that gets you where you need to go.

[00:08:40] Speaker 03:
But setting that apart, I guess I'm still struggling to understand why this is discrimination.

[00:08:46] Speaker 03:
I mean, there are two different complaints that are raised.

[00:08:49] Speaker 03:
One of them, I mean, he was reprimanded.

[00:08:53] Speaker 03:
Do you think is the discrimination that there was no investigation or that you think Oda should have been terminated in the same way that Crowe was terminated?

[00:09:04] Speaker 04:
I think it more aligns with that should have been investigated.

[00:09:07] Speaker 04:
So if there's two complaints, which are functionally equivalent in our perspective, Bell Osteros gets the same.

[00:09:13] Speaker 04:
They're not functionally equivalent.

[00:09:15] Speaker 04:
I mean, for purposes of comparators, we're pushing their judge.

[00:09:19] Speaker 03:
I guess that's what I have our time seen, because it seems to me they have discretion to look at comments that are made

[00:09:29] Speaker 03:
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 one of those.

[00:09:41] Speaker 04:
But it only comes in later.

[00:09:42] Speaker 04:
Later, exactly so.

[00:09:43] Speaker 04:
That is it.

[00:09:43] Speaker 04:
If an investigation hadn't been opened up, this would have been more

[00:09:46] Speaker 04:
And that gets into this issue.

[00:09:48] Speaker 04:
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.

[00:09:55] Speaker 04:
It turns into a fishing trap.

[00:09:56] Speaker 04:
And additional information is gathered up in the processing of the investigation.

[00:09:59] Speaker 04:
That's where we get to later in this, 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 Crowe.

[00:10:11] Speaker 04:
And that's where we have correct, true to what you stated earlier, Judge,

[00:10:16] Speaker 04:
One of the issues is in our position, the investigation goes off the rails.

[00:10:21] Speaker 04:
OTA brings it off the rails.

[00:10:22] Speaker 04:
It is centered.

[00:10:23] Speaker 04:
Well, I think we've got to be careful.

[00:10:26] Speaker 03:
Let me clarify what I was saying.

[00:10:28] Speaker 03:
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.

[00:10:34] Speaker 03:
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 that the Convey is that our position is that the investigation the conduct of the investigation their issues with it And and to that point there are and actually Well, I think we've discussed that but I wouldn't have went on that one of the things that I did also want to point out in particular as I see my time is is expiring quickly here is

[00:11:09] Speaker 04:
flagging a particular passage on the district court's decision.

[00:11:14] Speaker 04:
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.

[00:11:35] Speaker 04:
It says, quote, these facts raise a genuine issue of material effect

[00:11:39] Speaker 04:
as to whether defendant discriminated against plaintiff, and yet then rules in favor of the move in any way on summary judgment.

[00:11:46] 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 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:
We think that I think that's a concession these from our perspective judge at least in the context there It is a concession that there are material facts and disputes such that summer judgment should not be granted Another important point that I do want to flag here Is with respect to the hostile work environment claim?

[00:12:21] 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 and assessing whether the conduct was severe or pervasive

[00:12:34] Speaker 04:
The hostile work environment claim is not just use of slurs.

[00:12:36] Speaker 04:
The hostile work environment claim are all of the pre-termination actions that were remanded.

[00:12:41] Speaker 04:
The placement on admin detail, the removal of police powers, the investigation, the proposed removal, all at central parts of the hostile work environment claim, and that's memorialized in the

[00:12:49] Speaker 04:
Transcript that we have of course of the MSJ Discussion and oral argument their volume two pages 81 and 82 and those are explicitly lined out in the discussion with the judge The judge does not address it at all the district court does not address the majority of the claims that 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.

[00:13:24] Speaker 00:
So how do you tie those disciplinary actions directly to a hostile work environment?

[00:13:29] Speaker 00:
We've got intervening facts coming into the story at that point.

[00:13:32] Speaker 04:
Because and I'd see my my primary time if I may respond there always answer our questions I figured as much but always fair to check Judge the

[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.

[00:13:56] Speaker 04:
The district court narrows this down.

[00:13:59] Speaker 04:
There is a host of actions here taken across the entirety of all these pre-termination actions.

[00:14:04] Speaker 04:
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.

[00:14:08] Speaker 00:
It seems like you're trying to narrow it and say that because of some things that happened earlier on in the story that more

[00:14:14] Speaker 00:
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.

[00:14:30] Speaker 00:
And doesn't that impact the analysis?

[00:14:33] Speaker 04:
It should be considered in the analysis, Judge, absolutely.

[00:14:36] Speaker 04:
And I think that's part of our point here is it's not.

[00:14:38] Speaker 04:
None of that is in the analysis whatsoever in the district court's determination.

[00:14:42] Speaker 04:
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 have arisen.

[00:14:55] Speaker 04:
Those are the results of a fishing expedition that was discriminatory in our formal position.

[00:15:02] Speaker 03:
Okay, we'll give you time for a puddle then.

[00:15:04] Speaker 03:
Thank you much.

[00:15:14] Speaker 01:
Good morning, may it please the court, Assistant United States Attorney, Edric Ching, appearing on behalf of the Secretary of the Army.

[00:15:24] Speaker 01:
First, I would like to address Council's comment about

[00:15:29] Speaker 01:
the lack of the lack of investigation into Oda's February 2016 comment.

[00:15:35] Speaker 01:
In fact, Your Honor, the record is clear that there was actually an investigation.

[00:15:41] Speaker 01:
Mr. Kroll.

[00:15:43] Speaker 03:
Your point as to where that is?

[00:15:45] Speaker 01:
Yes, that would be at, that would be at, let's see,

[00:15:55] Speaker 01:
er 323 323 yes okay and what and what is that it's it's a it's an email string it's a I mean it's a document string in which mr. Crowe complained to mr. Guerrero about the order comment in February 2016

[00:16:15] Speaker 01:
Mr. Provost Marshall Guerrero then ordered SPO, which is Supervisory Police Officer Ballesteros to conduct an investigation.

[00:16:26] Speaker 01:
And approximately within the next several days.

[00:16:31] Speaker 01:
And the investigation consisted of what?

[00:16:34] Speaker 01:
SPO Ballesteros confronted, or SPO Ballesteros spoke to Officer Oda.

[00:16:42] Speaker 01:
Officer Oda admitted

[00:16:44] Speaker 01:
that he made the comment.

[00:16:46] Speaker 01:
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.

[00:17:02] Speaker 01:
Officer Oda then apologized to Mr. Kroll, and they shook hands.

[00:17:09] Speaker 01:
But a day prior to this meeting, Officer Oda in an email

[00:17:15] Speaker 01:
which is ER 420, 420.

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

[00:17:26] 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.

[00:17:35] Speaker 01:
And that probably goes to the question that was posed to council as to why

[00:17:41] Speaker 02:
Officer Oda was assigned to but there were also comments there also there's also some evidence in the record that Crowe perceived that that Oda said he would never work with him again And that he said that Oda gave him the cold shoulder after that

[00:17:56] Speaker 02:
Yes.

[00:17:57] Speaker 02:
Okay, so that evidence is that 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.

[00:18:16] Speaker 01:
That Ballesteros was aware of what?

[00:18:18] Speaker 02:
uh... that that off that uh... officer or what i made that comment about not work so this could be a really hard point for you to defend this is really bad judgment by hysteresis part yes is there any good justification for choosing a man who's just been reprimanded for uh... for for using uh... homophobic slurs against his co-officer uh... and then assigning him to conduct an investigation of that officer but what could possibly justify that you didn't have any other officers at tripler

[00:18:48] Speaker 01:
Just to point it out, SPO Ballesteros did ask two officers to investigate.

[00:18:56] Speaker 01:
He asked Oda, Officer Oda, to take the four statements, but he also assigned Officer Calpico to take two statements that was of... That was later on?

[00:19:08] Speaker 01:
Later on, yes.

[00:19:08] Speaker 01:
Much later on?

[00:19:09] Speaker 01:
Yes.

[00:19:10] Speaker 01:
Okay.

[00:19:10] Speaker 01:
And in addition to that,

[00:19:14] Speaker 01:
The record indicates that SPO 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.

[00:19:29] Speaker 01:
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 they're trying to expand the hostile work.

[00:19:43] 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 Starrows.

[00:19:59] Speaker 03:
Yes He was present during one of the private 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. Crowell in opposition to our motion for summary judgment, it states that a comment was made by Officer Oda, not in the presence of Mr. Crowell, but in the presence of other officers.

[00:20:24] Speaker 01:
It said that SPO Ballesteros was present, but it did not state that SPO Ballesteros

[00:20:31] Speaker 01:
Was present or heard the heard those comments, so there's no well He says that he was present in the class.

[00:20:39] Speaker 02:
This is this is paragraph six.

[00:20:40] Speaker 02:
Yes I recall taking a class on psychiatric patients on Veterans Affairs after the class end 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 by hysteros was present in that class and

[00:20:55] Speaker 01:
Yes, but there's no, there's no evidence.

[00:20:58] Speaker 01:
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?

[00:21:05] Speaker 02:
Was he asked about that in his deposition?

[00:21:09] 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.

[00:21:15] Speaker 03:
Crow was present in that, that, that meeting or not?

[00:21:23] Speaker 01:
My recollection of the record was that another officer told Mr. Crowell that Officer Oda was making these types of comments about you.

[00:21:31] Speaker 03:
So Crowell was not present when Batiste, when the supervisor heard of these, or arguably heard these comments.

[00:21:41] Speaker 03:
Yes, so at the district court hearing, we talked about... You help me just understand, and it's a little bit complicated.

[00:21:49] Speaker 03:
I know we're going back 10 years, but is this common?

[00:21:53] Speaker 03:
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.

[00:22:06] Speaker 03:
Has that changed in the department, do you know?

[00:22:10] Speaker 03:
I'm not sure what is going on in the department now, but... I mean, I'm just wondering if you heard that, why wouldn't there be some action taken?

[00:22:24] Speaker 03:
I mean, that's a little bit troubling to me, and I'm trying to grapple with it.

[00:22:27] Speaker 03:
Yes.

[00:22:28] Speaker 03:
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.

[00:22:44] Speaker 01:
And just to make it clear, Your Honor, at the District Court hearing, I believe, counsel admitted there were three comments that were made.

[00:22:52] Speaker 01:
The comment in mid-2015 that we're just discussing during the training.

[00:22:57] Speaker 01:
In January 2016, while Officer Oda and the plaintiff or Mr. Crow were watching somebody exit their car,

[00:23:08] Speaker 01:
officer or to meet a comment about you know use that the the F the effort you know in in his presence and then the third one is.

[00:23:17] Speaker 03:
In in February 2016 with what's interesting to me and maybe you're the wrong person to ask but there's.

[00:23:26] Speaker 03:
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?

[00:23:43] 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 the claim made by Mr. Crow, but Officer Oda in his, let's see, I believe it's ER 349 stated that

[00:24:19] Speaker 01:
No, I'm sorry, ER 392, Officer Oda stated that he thought that he believed that Mr. Crowe was heterosexual when he did the interviews.

[00:24:27] Speaker 01:
When he did what interview?

[00:24:29] Speaker 01:
When he interviewed... Investigation?

[00:24:31] Speaker 01:
Yes, when he interviewed the four witnesses during the investigation.

[00:24:35] Speaker 02:
He's already been... Oda's... I mean, sorry, Crowe has already told Oda that he was bisexual at that point.

[00:24:41] Speaker 02:
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.

[00:24:48] Speaker 01:
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 ER 416, 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, and I'm not exactly sure how fluid all of this is.

[00:25:15] Speaker 02:
But he admitted later on to both homosexual and heterosexual conduct.

[00:25:22] Speaker 02:
Correct.

[00:25:23] Speaker 02:
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

[00:25:39] Speaker 03:
it was attacking him personally.

[00:25:41] Speaker 03:
That was his view of it in 2016, because he was bisexual.

[00:25:45] Speaker 03:
Is there any evidence that that had been communicated to Oda before February of 2016?

[00:25:53] Speaker 01:
I don't believe so, Your Honor, and in addition to that... Does it matter?

[00:25:59] Speaker 03:
Well, no, that's helpful.

[00:26:02] Speaker 03:
The other thing I'm struggling with is does it matter?

[00:26:05] Speaker 01:
I don't think it matters.

[00:26:06] Speaker 01:
I mean,

[00:26:07] Speaker 01:
legal.

[00:26:08] Speaker 01:
In this case, it does not matter because once Officer Oda was confronted with this by SPO Ballesteros, he apologized.

[00:26:19] Speaker 01:
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 it.

[00:26:30] Speaker 02:
Roe is the only officer that he ever used this slur with.

[00:26:33] Speaker 01:
I don't believe there's anything in the record to indicate that he used it for any other officer.

[00:26:39] 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, I don't think we have to believe that.

[00:27:00] Speaker 02:
I don't think a jury would have to believe that either.

[00:27:03] Speaker 02:
If that's what you're resting on, I think that's going to be a jury question.

[00:27:07] Speaker 01:
Yep, 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.

[00:27:22] Speaker 01:
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,

[00:27:33] Speaker 01:
They were questions and answers and Oda testified that he would, you know, type out the question and that the 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 Crow?

[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... But that still doesn't explain why he didn't interview him.

[00:28:07] Speaker 02:
He could do so as long as there was a union representative there, right?

[00:28:11] Speaker 02:
Yes.

[00:28:11] Speaker 02:
Or why Steros could have said, OK, I better take this from here.

[00:28:15] Speaker 02:
Thank you for talking to everybody else.

[00:28:17] Speaker 02:
I need to talk with Crowe myself.

[00:28:18] Speaker 02:
Yes, and eventually does talk to him with it 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.

[00:28:29] Speaker 01:
So the interview of the preliminary discussion occurred in June 2016.

[00:28:37] Speaker 01:
And if you look at the email trail, it's because

[00:28:39] 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 Oda was making a bigger deal of this than was warranted.

[00:28:55] Speaker 02:
Sewell certainly said, this became a much bigger deal than I intended.

[00:29:00] Speaker 02:
I didn't want this to be a big deal.

[00:29:03] Speaker 02:
And one of the officers thought that Crow was a good officer and didn't understand why so much was being made out of all of this.

[00:29:09] Speaker 01:
Well if you look at the way the statements are played out if you look at the initial email from Sewell to his supervisor Novosel at 338 that talks about a confrontation in the tripler Army Medical Center emergency department, and then it talks about how you know perhaps Crow was spreading rumors to other people including his wife at the VA and then then at that point when

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

[00:30:05] Speaker 00:
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 sort of 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.

[00:30:27] Speaker 01:
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.

[00:30:49] Speaker 00:
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 Anal 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.

[00:31:17] Speaker 01:
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.

[00:31:33] Speaker 03:
Oh yeah, I just want to make sure we don't have any more questions.

[00:31:35] Speaker 03:
I think we've heard your argument.

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

[00:31:55] Speaker 04:
Your honors, if I may just address a few of the points raised here.

[00:31:59] Speaker 04:
I think most prominently, one of the disputes about the investigation, I do want to flag here on volume two of the extra records at page 216 and 217, actually.

[00:32:12] Speaker 04:
We have Ballesteros' testimony where he is asked whether he actually investigated the allegations made by Oda, and he responds, no.

[00:32:23] Speaker 04:
He says I didn't think of it anything of it really and he's asked you just took it at face value and Oda's response He just said that it was mentioned that the slur so I indicated that on my counseling So so baluster was actually testifies concedes.

[00:32:36] Speaker 04:
There was no actual investigation conducted into crows allegations against Oda another thing important point to flag here is

[00:32:44] Speaker 04:
the nature of Sewell's complaint.

[00:32:46] Speaker 04:
That was a topic of discussion here.

[00:32:48] Speaker 04:
And I think that disagreement for my friend here is really indicative of that this is a material dispute effect.

[00:32:54] Speaker 04:
That issue, was it a concern of safety or not, that prompted the investigation decision, at least purportedly.

[00:33:03] Speaker 04:
And so that ties into this justification for the initiation of the investigation.

[00:33:08] Speaker 04:
That's a material dispute that needs to go to the jury.

[00:33:10] Speaker 04:
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. Crowe.

[00:33:24] Speaker 04:
We don't actually know for certain that it was only three uses.

[00:33:26] Speaker 04:
It wasn't investigated.

[00:33:27] Speaker 04:
The record on that is sparse.

[00:33:31] Speaker 04:
Crowe was able to identify three with the help of notes from other individuals in the course of the proceedings that we made it through.

[00:33:38] Speaker 04:
But you haven't come up with any additional evidence.

[00:33:40] Speaker 04:
That's correct, Judge.

[00:33:41] Speaker 04:
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.

[00:33:49] Speaker 00:
Like, maybe it's just a workplace word.

[00:33:51] Speaker 04:
So that was my next point, Judge, actually.

[00:33:53] Speaker 04:
So I appreciate that.

[00:33:54] Speaker 04:
And that's a really important point as well here.

[00:33:56] Speaker 04:
That is a huge dispute of material fact here.

[00:33:58] Speaker 04:
And there's actually some very substantive discussions in this.

[00:34:02] Speaker 04:
And because, actually, Oda calls this at pages 181 to 82 in the volume 2, that the slur is just cop talk.

[00:34:10] Speaker 04:
Just cop talk is what he calls it.

[00:34:12] Speaker 04:
But there's contrary testimony in the record directly refuting that.

[00:34:15] Speaker 04:
There's testimony from other officers at page 267, volume two, that it is not at all a slur that is used.

[00:34:21] Speaker 04:
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.

[00:34:30] Speaker 04:
It's not something that anybody else throws around the station.

[00:34:33] Speaker 04:
And it is repeatedly and exclusively targeting Crow.

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

[00:34:38] Speaker 04:
It is not a slur that it's appropriate.

[00:34:40] Speaker 02:
And there's no evidence that Oda used this term regularly.

[00:34:44] Speaker 02:
For anyone else?

[00:34:45] Speaker 02:
For anyone else.

[00:34:46] Speaker 02:
That's correct, Judge.

[00:34:48] Speaker 04:
I see my time has expired.

[00:34:50] Speaker 03:
Thank you, Your Honor.

[00:34:51] Speaker 03:
Thank you.

[00:34:52] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:34:54] Speaker 03:
The case is now submitted.