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case number 22-2219.

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Tommy Ho, a balance, versus Merrick B. Garland in his official capacity as attorney general of the United States.

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Mr. Ali, amicus curiae for the balance.

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Mr. Walker, for the appellate.

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Good morning, Mr. Ali, whenever you're ready.

[00:00:19] Speaker 03:
Thank you.

[00:00:22] Speaker 04:
Good morning and may it please the court, Mohammed Mujtaba Ali on behalf of amicus appointed by the court.

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The complaint in this case was sufficient to overcome the minimal hurdle of a motion to dismiss, because it plausibly alleged adequate facts to state a claim for relief based on retaliation under Title VII.

[00:00:40] Speaker 03:
You agree to assess the complaint under Title VII?

[00:00:45] Speaker 04:
We do agree, Your Honor.

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We think the district court got the standard right and plaintiffs have to allege more than labels and conclusions to survive.

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My question is whether there are sufficient facts to support

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to support a plausible inference of causation.

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Correct.

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Okay.

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Yeah.

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And contrary to the district court's ruling in this case, the allegations did support such a plausible inference that Mr Ho's prior EEO complaints in 2015, 2017 and 2018 were causally linked to his non selection.

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Mr Ho alleged

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that three of the same individuals who he had named as responsible management officials in those prior complaints were then later involved in his non-selection.

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And that includes Mr. McDermott, who as the complaint alleges, was not officially part of the selecting group of officials, but interjected into that hiring decision to tell those officials, remind them perhaps, that they didn't have to hire anybody at all.

[00:01:48] Speaker 03:
Why does that move the needle for you?

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That's just repeating a prior fact that was baked into their decision.

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It's not specific to any one applicant.

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I think it's reported in the complaint as double hearsay on information and belief.

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Um, and not a particularly surprising reaction if they're looking for GS 14th and then they don't get any.

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And so they'll look at GS 13th just in case there's someone really outstanding.

[00:02:32] Speaker 04:
Well, your honor, I think all of those are completely reasonable questions to be asked and answered at the summary judgment stage.

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We're at the motion to dismiss stage.

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It's really, really early in the complaint.

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And as this court knows, and as the Supreme Court has noted, direct evidence of discrimination under Title VII and direct evidence of retaliation under Title VII is really hard to see because, for obvious reasons, people tend not to put that right out there in the open.

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At least most of the time and so before discovery before plaintiffs have the opportunity to look behind the curtain to see what may have been said in private in emails or otherwise or to depose individuals and see what they have to say about what there may not have happened.

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it's just premature to be asking those evidentiary questions as opposed to accepting the allegations as true and drawing all reasonable inferences such as the inference that perhaps Mr. McDermott was saying all of this with a wink and a nod as to Mr. Ho's prior complaints and perhaps not wanting to hire someone who has aggravated you and two other people on the selecting panel in the past.

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And I think all of those things, they may not ultimately be borne out.

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But at the complaint stage, at the motion to dismiss stage, Mr. Ho was certainly entitled for the district court to draw those inferences.

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The wink and a nod test really is not any longer alive.

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It may have been in years past, but I don't see the case law and motion to dismiss law being a wink and a nod because that will allow anyone to survive a motion to dismiss.

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Of course, we don't know whether they're winks and nods.

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paint the scenario that plausibly suggests unlawful discrimination.

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District Court is saying that that painting was not rendered here.

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You're right, Your Honor, that a plaintiff can't rely solely on an allegation of a wink and a nod, but that's not the complaint that we have here.

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The complaint also alleged involvement by these three officials in responding to Mr. Ho's prior complaints, both sitting for depositions, answering interrogatories, or in some cases, both.

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What does that tell me in terms of plausibility?

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What it helps the court do is look at the totality of the facts that are alleged and say these officials were named in these complaints as being responsible in some way for retaliating against Mr. Ho in the past.

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It's quite possible that they expended a significant amount of time and energy responding to those complaints.

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It's fair to assume that someone might hold a grudge against a complainant who does something like that, especially repeatedly, as Mr. Ho has done.

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Don't you have to present something to suggest there might be a reason for a grudge, other than simply involve

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involving UCL's managerial responsibilities or selection process, the mere participation doesn't suggest you have a grudge.

[00:05:28] Speaker 04:
No, not necessarily.

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It doesn't necessarily suggest that they have a grudge.

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But together with the comment by Mr. McDermott, and that's the argument that we're making, is that the district court failed to look at the facts in their totality.

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Instead, the opinion dismissing the case picked facts

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one by one and may have explained why in the district court's view each of those facts did not do enough to move to the line of possibly inferring causation but taken as a whole at this early stage where the burden is so minimal to overcome a motion to dismiss in this context the district court erred by not looking at the facts in their totality.

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One of those other facts that the district court highlighted was that Mr. Ho was later hired to

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at least somewhat similar GS 14 position in Oakland.

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And the district court said that, but against Mr. Ho, do you have a contrary argument that that is actually a plus factor for you?

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Yes, I think though that fact could reasonably be inferred either against Mr. Ho or for him.

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At this stage, it probably should have been, it actually should have, as a matter of law, been inferred in his favor.

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If you had a separate set of hiring officials who looked at the same candidate for a similar position and concluded, you know, he's qualified, we like him, we should hire him, he can do this task, that tends to show there may have been some other reason why he was not hired for this position.

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And it could be evidence of retaliatory animals and pretext.

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So in your theory, any one of this group, none of whom were select, any one of them had a viable claim of discrimination that would survive a motion to dismiss?

[00:07:11] Speaker 04:
No, not necessarily.

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We don't know any facts about it.

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What do you think distinguishes them from Mr. Ho?

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Well, two of those individuals had separate disqualifying factors as the complaint alleges, so they would fail on another element of the claim in terms of being able to prove that they were qualified for the position they were seeking.

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So that would support a motion to dismiss or motion for summary judgment, depending on when the government brought the motion.

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And then there may have been one other individual, the other individual, there were four individuals who had applied.

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Moreho seemed to suggest in the complaint that that person had also raised prior complaints.

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It's feasible that that person may also be able to state a claim, but

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We certainly don't know, and I don't know from the record what that person's history is, what claims they may or may not have brought.

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But at least as to two of the individuals, they were disqualified based on outside reasons that weren't told to Mr. Ho and therefore aren't in the record, aren't in the complaint.

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Is there any particular case you would point us to as allowing a claim to proceed, passed a motion to dismiss on similar facts, or do you think that this is just a unique case?

[00:08:21] Speaker 04:
I think this is not the ordinary case, but I don't think it's an entirely unique case.

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One case that does have similar facts, although not entirely on point, would be Bugs v. Powell.

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That was a DDC decision.

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And there, you had seven months elapsed between the protected activity and the non-selection.

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And there, what the court did was take a look at the facts as a whole.

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and said, you know, it's noteworthy here that the supervisor who decided against selecting this applicant was also involved in an ongoing investigation and complaint by that same individual.

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You have something similar here.

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It's not entirely clear if the complaints were still ongoing or not from Mr. Ho's complaint, but you certainly have involvement by the same selecting officials both

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at the stage of responding to the complaint and at the stage of the non-selection.

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And I think that differentiates this from a lot of other cases where all you have is you have knowledge by the faceless employer, if you will, if it was ATF or the Department of Justice or some private employer company, because someone at the company was aware of the complaint when it was filed, versus here what you have is the very specific individual human beings

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who were involved in the later selection and who, in Mr. McDermott's case, intervened to Mr. Ho's detriment to remind them they didn't have to pick anybody, who were also involved.

[00:09:48] Speaker 02:
The strong point against it is that the temporal length really is not showing here as is required by the caseloads at 10 months.

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And we normally talk three to the four months.

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I don't know how you overcome that.

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That's facially clear.

[00:10:07] Speaker 04:
It is clear from the complaint that you have a 10-month gap between the protected activity and the non-selection.

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But the case law that suggests there's an outer-bound limit, no Brightline rule, but an outer-bound limit, admittedly, of three to four months, those are cases where plaintiffs are relying on nothing other than temporal proximity.

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The case law also says there is only one way that you can prove causation.

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You can also prove causation through a combination of facts.

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You can certainly prove causation if there is, at some point, direct evidence, which we don't have in the complaint.

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I'm going to give you an example of a complaint here.

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And here what you have is more than just Mr Ho saying, I filed a complaint at X time and I was not selected at Y time.

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You also have him alleging and repeating in his opposition to the motion to dismiss that he also alleged a clear timeline of involvement by the same individuals, both during the response to the complaint

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involvement in responding to discovery and then at the end not selecting him or again in Mr McDermott's case intervening though he was not part of the selecting panel.

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And so that is something more that points to why it's reasonable and plausible to infer that a causal link exists

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notwithstanding the longer than normal passage of time.

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Because it's not just ATF who knew he had 10 months earlier filed these complaints and then some other official deciding not to select him.

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It's the very same people at both stages.

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And that, we argue, is enough to infer a causal link notwithstanding the longer passage of time.

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Thank you.

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You're over your time, but we'll give you.

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Thank you.

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Mr Walker.

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Good morning.

[00:12:05] Speaker 05:
Good morning.

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May I please support Johnny Walker on behalf of the Attorney General.

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Your Honor, Mr. Ho's complaint failed to allege facts that would plausibly give rise to an inference of retaliation.

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Instead, what he describes is a routine personnel action that is free of any reasonable suspicion.

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Amicus focuses not on any action that occurred with respect to the decision makers on the interview panel or the personnel action itself, but with actions that he took.

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His filing of prior discrimination complaints and his involvement and direction of those discrimination complaints in some ways at some of the people on the interview panel.

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Now, those actions by Ho do not permit the court to make a reasonable inference about the motivations and causation of actions by others.

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To conclude otherwise would be to assume effectively that any individual involved in any way in a retaliation complaint at any point in time will retaliate unlawfully against the individual.

[00:13:05] Speaker 01:
So are you disputing that it must at least make some difference right between the normal case where we've got a prior complaint that's about someone entirely different in the agency and this case where the prior complaint is about the decision maker.

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Shouldn't that at least count for something in terms of suspicion about whether there might be retaliation or the potential for retaliation going on?

[00:13:31] Speaker 05:
I don't think it counts at all when you come to the third element of a retaliation claim, the causation element, because that was a decision by Ho.

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That was an action undertaken by Ho.

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And it does not reflect in any way on what motivated the individuals who were involved in the interview panel.

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In fact, one of the individuals, Mr. O'Keefe, who was involved on the interview panel, Mr. Ho alleges that he involved him in a discrimination complaint as early as 2015.

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And Mr. O'Keefe during that entire time period served as Mr. Ho's second line supervisor, yet he is unable to present one allegation that at any point in those intervening four years did Mr. O'Keefe do anything to indicate that he harbored any retaliatory animals towards Mr. Ho.

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And he certainly doesn't indicate that Mr. O'Keefe did anything during the selection process that indicated that his decision in that selection process or his part in that decision was animated by retaliatory.

[00:14:23] Speaker 01:
He certainly does not have sort of direct evidence of hostility otherwise.

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But I guess my concern stemmed from the district court doesn't even mention this fact.

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And I

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might agree with Judge Walton's explanation and bugs that it is just different if what you have is a decision maker who has been specifically targeted by this employee in the past.

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It has to at least count for something.

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It's not

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going to be sufficient on its own.

[00:14:51] Speaker 01:
It seems like a material difference from just being aware that this is someone who's filed a complaint against someone in a different division, you know, a couple months ago.

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And even that is enough to say the claim.

[00:15:05] Speaker 05:
I acknowledge that it's different, certainly, Your Honor, that this individual was involved.

[00:15:09] Speaker 05:
But I mean, again, Mr. Ho does not allege how the individual was involved.

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He just alleges that they were involved in some way.

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He doesn't allege that he actually accused those individuals of discrimination.

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And if you take a look at the other pending litigation in district court, Judge Sullivan wrote an opinion in which he sort of outlines the factual background of Mr. O'Keefe and Mr. McDermott's involvement in the 2015

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discrimination complaint, and it's clear that Mr. Ho is not accusing them of any discrimination.

[00:15:40] Speaker 01:
I just had a question about some of the other allegations that the district court didn't address.

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I want to hear your response to them.

[00:15:48] Speaker 01:
So it's sort of a constellation of other factors is that we have Mr. O'Keefe saying you were fully qualified and have all the requisite experience that's in the complaint.

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And the reason for denying him is a subjective reason.

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You didn't do well enough in the interview.

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Can't be checked.

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That's the kind of subjective explanation we've said in cases like Hamilton that we can be skeptical of.

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And he also alleges that there was a strong need to fill this position.

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So sort of putting those together, you might say, you had

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an employer who really wanted to fill a position, and he had before him a very qualified applicant, but ends up rejecting him for a subjective reason.

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And it just so happens he'd been previously targeted by this employee in protected activity.

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I know there's a lot built into that, but none of those facts are addressed in the district court's opinion.

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I'm just wondering what you were.

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response to the version saying he's qualified showing there was a need and then denying on a subjective basis.

[00:16:56] Speaker 05:
I do have a couple responses to that and one has to look at the entire sort of selection process which is sort of spelled out in Ho's complaint.

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There's an initial screening process that's conducted by human resources in which it determines which applicants are qualified for the position.

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That typically means that they are at the requisite GS level.

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They have the requisite number of years experience as a special agent.

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Now human resources deemed Mr. Ho

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and three other applicants qualify for the position.

[00:17:23] Speaker 01:
I agree that the HR statement doesn't count for much.

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I think it's O'Keefe's statements.

[00:17:27] Speaker 05:
That is a qualifications decision.

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And Mr. Keefe just said that they were qualified, which refers to the decision that was made by HR.

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After that HR screening decision for minimal qualifications, they then go on to the interview panel, which looks at the resumes submitted, conducts an interview.

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And what Mr. O'Keefe said

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is that Mr. Ho and all four applicants were qualified.

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But following that interview, that Mr. Ho and one other applicant was deemed unsuitable for the position and that two were disqualified by outside factors.

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Now, I want to note that this court sometimes deems shift explanations in an employer's reasons for rejecting an applicant to be circumstantial evidence for discrimination.

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But here, the exact opposite is true.

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Mr. Ho alleges his opposition to the government's motion to dismiss

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that he later obtained the interview notes during the administrative process on his retaliation claim here.

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And those interview notes are entirely consistent with the explanation that Mr. O'Keefe gave to Mr. Ho following the selection process.

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I also want to address Your Honor's question about subjective reasons.

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And I don't think there's anything to suggest that Mr. O'Keefe provided Mr. Ho subjective reasons.

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Mr. Ho doesn't go into sort of a detailed explanation of precisely what the reasons coming out of the interview that he was deemed unsuitable for the position.

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It's just an allegation that he was deemed unsuitable.

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that I don't think there's enough there to conclude that those reasons were purely reasonable.

[00:18:58] Speaker 01:
If it's a reasonable inference from the complaint that he was, he wasn't left in the dark about why he wasn't selected.

[00:19:03] Speaker 01:
He was specifically told you did really well on some questions, but not well enough on others.

[00:19:08] Speaker 01:
And so that's not enough.

[00:19:10] Speaker 01:
I mean, doesn't that sound subjective?

[00:19:13] Speaker 05:
No, Your Honor, it's entirely consistent.

[00:19:15] Speaker 05:
I mean, you would have to reach the conclusion that it was subjective.

[00:19:22] Speaker 05:
You would need facts supporting that it was in fact subjective.

[00:19:25] Speaker 05:
We don't have any facts alleged about what the questions were, what the content of the answers were, and what

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detailed explanation, detailed reasons that Mr. Ho is deemed unsuitable were.

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And in the absence of those plausible factual content, or factual content, that's insufficient to deem the explanation subjective.

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I also want to get to the question of Mr. Ho's qualifications.

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While he alleges in a conclusive sense that he was qualified for the position,

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He hasn't explained why that was.

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There's no factual content about what the position required and what specifically Mr. Ho had that made him suitable for the position.

[00:20:03] Speaker 05:
And if you look at the resume that he submitted attached to his motion to dismiss, it doesn't really back up his assertion.

[00:20:09] Speaker 05:
He lists, it mentions the internet.

[00:20:12] Speaker 05:
And he essentially says, this was in the internet investigation center.

[00:20:16] Speaker 05:
I knew about the internet.

[00:20:17] Speaker 05:
But that resume shows only three, by my count, investigations that even mentioned internet.

[00:20:23] Speaker 05:
And they do so in a context simply saying that those investigations involved firearms that were trafficked over the internet.

[00:20:30] Speaker 05:
They don't show that Mr. Ho actually used the internet as an investigative method.

[00:20:35] Speaker 01:
It sounds like you're asking for a lot more.

[00:20:37] Speaker 01:
detail than we actually typically require of a complaint.

[00:20:42] Speaker 01:
You certainly need factual allegations.

[00:20:45] Speaker 01:
But for example, paragraph 26 says, O'Keefe stated he was aware that plaintiff has experience in conducting internet investigations.

[00:20:52] Speaker 01:
Elsewhere, it says, he agreed he was qualified.

[00:20:55] Speaker 01:
So if you're sort of inferring that he didn't adequately show that he had all of the requisite experience for the position, that seems like

[00:21:06] Speaker 01:
That might be true, but it's certainly not.

[00:21:09] Speaker 01:
It is certainly still a reasonable inference that he had all that experience from the complaint, isn't it?

[00:21:16] Speaker 05:
I don't think you have the facts there.

[00:21:18] Speaker 05:
I mean, the mere assertion that he knew I had experience on the Internet.

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is insufficient, particularly in the absence of any allegations about what this position, even the duties that this position would even perform, or precisely what that experience was.

[00:21:32] Speaker 05:
That is insufficient, just saying I had the experience requisite for the position is a conclusory statement.

[00:21:38] Speaker 02:
It seems to me you're really walking into summary judgment.

[00:21:42] Speaker 02:
I'm surprised you're making this, because it's pretty straightforward in most of these cases.

[00:21:47] Speaker 02:
If a person is disqualified officially,

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from a position, the employer instantly points to whatever it is.

[00:21:54] Speaker 02:
This job requires X. Look at what he's presented.

[00:21:57] Speaker 02:
He doesn't have X. That's not this record.

[00:22:01] Speaker 02:
You're taking us where a district court would go if there was a summary judgment motion that had to be sorted out.

[00:22:07] Speaker 02:
You're arguing that he's claiming he's qualified.

[00:22:11] Speaker 02:
They all do in these kinds of situations.

[00:22:14] Speaker 02:
Unless the employer comes in, no, look at the record.

[00:22:16] Speaker 02:
It's absolutely clear this person is not the kind of person

[00:22:20] Speaker 02:
We would hire for this job, and we have quite the contrary here.

[00:22:23] Speaker 02:
We have O'Keefe saying he was qualified.

[00:22:25] Speaker 02:
It's a strange argument.

[00:22:26] Speaker 02:
I mean, it looks like summary judgment when you argue the case this way.

[00:22:30] Speaker 05:
The argument I'm making, Judge Edwards, is that Mr. Ho must present facts at the motion to dismiss phase, facts in his complaint that give rise to some... Said I'm qualified.

[00:22:43] Speaker 02:
That's conclusory.

[00:22:44] Speaker 02:
I mean, we need factual content to back that up.

[00:22:47] Speaker 02:
But there's nothing to indicate he's not qualified.

[00:22:51] Speaker 02:
And he has some things that at least facially suggest.

[00:22:55] Speaker 02:
It's a plausible suggestion, including he passed the screening with HR.

[00:22:59] Speaker 02:
And one of the supervisors said, you're qualified.

[00:23:02] Speaker 02:
And that's not refuted in any way.

[00:23:05] Speaker 02:
This is a strange weighing of the information.

[00:23:08] Speaker 02:
I'm not sure where you're going.

[00:23:10] Speaker 02:
You're making the motion to dismiss.

[00:23:13] Speaker 02:
The motion to dismiss is tough enough nowadays.

[00:23:16] Speaker 02:
It seems to me you're adding something new that I've never seen before.

[00:23:20] Speaker 02:
What is he supposed to do?

[00:23:21] Speaker 02:
He says, I'm qualified.

[00:23:23] Speaker 02:
And the supervisor says, I'm qualified.

[00:23:25] Speaker 02:
And facially, it looks like he probably is.

[00:23:27] Speaker 02:
And the employer offers nothing to suggest he's not qualified.

[00:23:33] Speaker 02:
They just say, we don't want to hire.

[00:23:35] Speaker 02:
Yeah, I think you have to look at what the entire hiring process involved though involved the basic look at something that we would look at on summary judgment to surmise there was a question about qualification.

[00:23:47] Speaker 02:
The employer has not put that into play.

[00:23:50] Speaker 05:
No, not at this point, but he there's going to be resident with us.

[00:23:54] Speaker 05:
There's a number of ways that he can show in the complaint that there is some inference of causation or retaliatory causation involved in the hiring action.

[00:24:02] Speaker 05:
One of them would be that he could argue about shifting explanations, statements made by these individuals.

[00:24:09] Speaker 05:
And one would be to say that to call into question the determination that he was not qualified, but simply saying, I was qualified and they determined I wasn't.

[00:24:17] Speaker 05:
It's conclusory and it's sufficient.

[00:24:18] Speaker 01:
They didn't determine he wasn't qualified.

[00:24:21] Speaker 01:
They said you didn't answer some of the interview questions well enough.

[00:24:24] Speaker 01:
And I think a similar dynamic is going on with this hiring in the Oakland office, right?

[00:24:28] Speaker 01:
The Oakland office, he is promoted as a GS14 supervisory official.

[00:24:34] Speaker 01:
Now at summary judgment, you may come in and be able to show that is a totally different job

[00:24:40] Speaker 01:
with all kinds of different responsibilities.

[00:24:42] Speaker 01:
But he's alleged, and it is not conclusory, once I was not at the whim of the people I had complained about in the past, I was promptly promoted to a similar position.

[00:24:54] Speaker 01:
And it seems like to demand more than that is asking for summary judgment type evidence.

[00:25:01] Speaker 01:
So the methodological question, but it was really striking to me the district court

[00:25:07] Speaker 01:
somehow construed that as a fact against Mr. Ho.

[00:25:10] Speaker 01:
The point is, his allegation is that these people, O'Keeffe, was biased against him.

[00:25:15] Speaker 01:
Once he wasn't under O'Keeffe, he applied for a similar job, and he got it.

[00:25:20] Speaker 05:
Your Honor, we don't argue that that is a fact against Ho, but it is certainly not a fact for Ho.

[00:25:25] Speaker 05:
He does not make the connection that you are making, which is that that is a similar position requiring similar qualifications.

[00:25:31] Speaker 05:
If he was going to use that position, that matter.

[00:25:33] Speaker 01:
It's a GS-14.

[00:25:35] Speaker 01:
It's in the title that it's supervisory.

[00:25:38] Speaker 05:
This court said in Atherton that the obligation of pro se plaintiffs is unchanged.

[00:25:42] Speaker 05:
They must allege plausible facts supporting a plausible claim for relief.

[00:25:49] Speaker 05:
If he was going to make the connection with that promotion, which he doesn't even argue in that sense, he provides that promotion in background information.

[00:25:56] Speaker 05:
In his opposition to the motion to dismiss if he was going to make that argument that that promotion is somehow inconsistent with his non selection for the Internet Investigation Center position, he would have to set forth the facts plausibly supporting that influence.

[00:26:11] Speaker 05:
He hasn't knocked on.

[00:26:12] Speaker 05:
He hasn't even attempted to make that argument.

[00:26:16] Speaker 01:
The final fact that I was just curious in your response to is.

[00:26:22] Speaker 01:
Is Adam D it is it's in the opposition to the motion to dismiss, but as.

[00:26:26] Speaker 01:
amicus hinted, it turns out that not just Mr. Ho, but the only unqualified applicant for this position that they wanted to fill was denied for the same reason.

[00:26:38] Speaker 01:
And it just turns out that he had also engaged in protected activity against these individuals.

[00:26:45] Speaker 01:
Is that surely not dispositive?

[00:26:48] Speaker 01:
But explain to me why that shouldn't at least count for something.

[00:26:53] Speaker 01:
If the question here is, is there some fact in the complaint that indicates these decision makers had a bias against people engaging in protected activity?

[00:27:02] Speaker 05:
Because again, all the assertions about Adam are that he engaged in protected activity.

[00:27:09] Speaker 05:
That's, again, only things that Adam undertook.

[00:27:12] Speaker 05:
There's nothing that these actual decision makers manifested themselves, either during the hiring process or at any other time, that indicated a retaliatory animus against Mr.

[00:27:22] Speaker 05:
or Adam or anyone else.

[00:27:24] Speaker 05:
I will note that Mr. Hope points to a seventh circuit docket for Adam's protected activity.

[00:27:31] Speaker 05:
And if you examine that docket, it's clear that Adam's protected activity is not Title VII protected activity.

[00:27:37] Speaker 05:
It's whistleblower activity.

[00:27:43] Speaker 03:
Okay.

[00:27:43] Speaker 03:
Thank you, Council.

[00:27:43] Speaker 03:
Thank you.

[00:27:44] Speaker 03:
Please affirm.

[00:27:53] Speaker 04:
Thank you, Your Honours.

[00:27:55] Speaker 04:
I'd just like to touch on a few things that my friend on the other side said.

[00:27:59] Speaker 04:
First, it struck me as odd that the government is making the argument that this somehow didn't involve actions by selecting officials and somehow that relieves them of the burden not to retaliate against individuals.

[00:28:13] Speaker 04:
It's definitely true that Mr Ho is the one who applied for a position.

[00:28:18] Speaker 04:
That's how job applications work unless you're lucky enough to get headhunted.

[00:28:21] Speaker 04:
But that doesn't mean that an eventual non-selection couldn't be a retaliatory act.

[00:28:26] Speaker 04:
So I just wanted to note that.

[00:28:30] Speaker 04:
The second thing I wanted to note is, as some of the argument has indicated, this is not an appropriate case for dismissal at the motion to dismiss stage.

[00:28:40] Speaker 04:
There's a lot of questions about facts and what was and wasn't happening, what the animus of a particular individual may have been, whether people were qualified or not.

[00:28:51] Speaker 04:
All of that is appropriately done after discovery has concluded.

[00:28:56] Speaker 04:
And of course, the district court is well within its discretion to appropriately cabin discovery.

[00:29:01] Speaker 04:
If there are threshold questions that need to be answered and if they're answered one way or another, it's quite possible the government may succeed on a quick motion for summary judgment.

[00:29:09] Speaker 04:
But those are all factual evidentiary questions that need to be resolved at a later stage.

[00:29:14] Speaker 04:
And this certainly isn't a case that was fit for dismissal with prejudice.

[00:29:18] Speaker 04:
So pro se plaintiff, who yes, has the same legal burden in terms of alleging a plausible complaint, but the district court was still duty bound to read the complaint as liberally as possible without making specific legal arguments for plaintiff.

[00:29:35] Speaker 04:
And the court did not do that here.

[00:29:38] Speaker 04:
the case.

[00:29:38] Speaker 04:
Instead, the court seemed to pick and choose specific facts and weigh them.

[00:29:43] Speaker 04:
Perhaps fairly perhaps not against Mr Ho when there were similarly reasonable inferences that could have been drawn in his favor, looking at the factual allegations as a whole.

[00:29:52] Speaker 04:
This was a complaint that plausibly alleged retaliation under title seven.

[00:29:56] Speaker 04:
It should not have been dismissed.

[00:29:58] Speaker 04:
It should have been allowed to go to discovery.

[00:30:00] Speaker 04:
But at a minimum, Mr

[00:30:08] Speaker 03:
from dismissal without prejudice is a fallback.

[00:30:12] Speaker 04:
I don't know for sure, your honor, if it was an argument made in the initial brief.

[00:30:17] Speaker 04:
I'll be completely clear.

[00:30:18] Speaker 04:
But it certainly was mentioned in the reply brief that this was not a case that should have been dismissed.

[00:30:23] Speaker 04:
Before the district court.

[00:30:25] Speaker 04:
I don't know if Mr. Ho argued it before the district court, but we were assigned on appeals, so we were in trial counsel.

[00:30:35] Speaker 02:
Do you acknowledge that

[00:30:39] Speaker 02:
An employer can permissively say, you were not hired because we weren't impressed during the interview.

[00:30:46] Speaker 04:
Yes, entirely permissible.

[00:30:49] Speaker 02:
Do they have to somehow present objective type evidence to prove the point?

[00:30:56] Speaker 02:
Or can they say, we interviewed and we weren't impressed?

[00:31:00] Speaker 04:
Once we're talking about an evidentiary standard at the motion to dismiss stage, not necessarily, sorry, at a motion for summary judgment stage, not necessarily.

[00:31:09] Speaker 02:
But at the motion to dismiss.

[00:31:11] Speaker 02:
If that's all you have to say and there's nothing more you need to do to amplify it, the employer said that.

[00:31:17] Speaker 02:
The reason that.

[00:31:18] Speaker 02:
Why should I doubt that?

[00:31:21] Speaker 02:
Whose burden is it now?

[00:31:23] Speaker 02:
If the employer can offer that as a reason and need not say anything more,

[00:31:30] Speaker 02:
didn't do it for me in the interview.

[00:31:33] Speaker 02:
And the employer has to say, I thought you were saying the employer does not have to say anything.

[00:31:39] Speaker 04:
No, an employer can permissibly choose not to hire someone for subjective reasons such as they weren't impressive enough in an interview.

[00:31:47] Speaker 04:
But to the extent that evidence shows that that was pretextual, they have to explain why it's not.

[00:31:53] Speaker 02:
The lack of a temporal connection.

[00:31:55] Speaker 04:
We actually don't have any evidence at this stage.

[00:31:57] Speaker 02:
Well, I wish you had to assert something, don't you, in your to survive a motion to dismiss?

[00:32:03] Speaker 02:
Yes.

[00:32:03] Speaker 02:
That would cause us to think you might be able to overcome it if we let you go back.

[00:32:08] Speaker 02:
In other words, you had a real problem with the lack of the temporal link.

[00:32:12] Speaker 02:
And now the employer comes in and says, I wasn't impressed in the interview.

[00:32:15] Speaker 02:
I wasn't contesting that.

[00:32:17] Speaker 02:
What more does the employer have to say?

[00:32:19] Speaker 04:
I think one, Your Honor, the temporal link is not as much of a problem in this case because you have the added facts of the involvement of the same individuals at the earlier stage and at the non-selection stage.

[00:32:31] Speaker 04:
The three to four month outer bound cases involve cases where complainants are alleging

[00:32:37] Speaker 04:
retaliation based on nothing more than temporal proximity.

[00:32:41] Speaker 04:
But the case law, both in this court and in the district courts in the circuit, have made clear that there are other ways to plead causation.

[00:32:49] Speaker 04:
And Mr. Ho did that here because he pled the additional facts of involvement of Mr. McDermott, Mr. O'Keefe, and the one other individual who's involved in selection, both at the stage of responding to his initial protected activity in those complaints and being named in those complaints multiple times.

[00:33:06] Speaker 04:
and in his ultimate non-selection.

[00:33:09] Speaker 04:
That's, for lack of a better term, a plus fact in addition to just saying this is the time.

[00:33:15] Speaker 02:
I may be beating a dead horse, but I'm just curious to know your answer.

[00:33:20] Speaker 02:
If it goes back on summary judgment, what would the employer in this circumstance be required to say other than what the employer said?

[00:33:28] Speaker 02:
You weren't impressed during the interview.

[00:33:30] Speaker 02:
Yeah, I know.

[00:33:31] Speaker 02:
We were involved.

[00:33:32] Speaker 02:
Previously, we had not been engaged with Guy for 10 months.

[00:33:36] Speaker 02:
There were no interactions, nothing whatsoever.

[00:33:40] Speaker 02:
We had this arrangement.

[00:33:43] Speaker 02:
He interviewed.

[00:33:43] Speaker 02:
He didn't impress us.

[00:33:45] Speaker 02:
And that's that.

[00:33:46] Speaker 04:
I think at motion for summary judgment, if that's all the evidence shows after discovery has concluded, the employer rightfully succeed at summary judgment.

[00:33:55] Speaker 04:
But we don't know that that's all that discovery will show.

[00:33:58] Speaker 04:
It's entirely possible that once Mr. Ho has the ability to seek discovery, he could discover internal communications about him.

[00:34:05] Speaker 04:
could discover emails about him.

[00:34:06] Speaker 04:
He could discover messages between the individuals on the selecting panel discussing that he might be a borderline case, but he's also a real pain because he keeps suing us.

[00:34:19] Speaker 02:
All right.

[00:34:19] Speaker 02:
I was just curious as to how you were thinking it through.

[00:34:23] Speaker 03:
Thank you.

[00:34:24] Speaker 03:
Thank you, counsel.

[00:34:25] Speaker 03:
Mr. Ali, this court appointed your firm as an amicus to help us

[00:34:33] Speaker 03:
by representing Mr. Ho's side of the case, and we thank you for your very able assistance.

[00:34:40] Speaker 03:
Thank you.

[00:34:40] Speaker 03:
The case is submitted.