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Case number 23-5237, Farrah M. S. Appellant versus Jennifer M. Granholm, Secretary of the U.S.

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Department of Energy.

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Mr. Shelley, I make his carry-on for the appellant.

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Mr. Walker, for the appellant.

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Good morning, counsel.

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Good morning, Mr. Shelley.

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Please proceed when you're ready.

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Good morning, and may it please the court.

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I'm Anthony Shelley, the court appointed amicus on behalf of the appellant, and I've reserved two minutes for rebuttal.

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The district court's decision below involves the simple misapplication of the familiar standard for stating a claim under Rule 12b6.

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Under that standard, the plaintiff need only set forth a short and plain statement of her claim and make plausible allegations that, assumed to be true, could lead to legal relief.

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And that low threshold is even more generous for pro se litigants like Farah Nas.

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Yet the district court essentially made every inference against Nas and required her to use the district court's own language

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to show discrimination and retaliation at the pleading stage.

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The result was that she was denied her day in court on her plausible allegations.

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Reviewing her allegations with all inferences in her favor, Nas stated a claim against her government employer for discrimination and retaliation and the case should be returned to the district court for proceedings on the merits.

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like to first briefly put Ms.

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Naz's allegations and theory of the case in their most favorable light, because that establishes that her allegations are plausible and state claims for discrimination and retaliation.

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And then I'd like to address a couple of the particular errors we deem in the district court decision.

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First of all, these are the essential allegations and facts.

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Naz has a master's degree from AU, and she worked as an economist at the Commerce Department for nearly 17 years.

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with an unblemished performance record.

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She joined the DOE then in 2017 and for another 18 months received positive performance reviews.

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Then in October 2017, she testified in support of an EEO complaint of racial discrimination made by a colleague at the DOE, Christopher Dickerson, and the allegations were specifically aimed at NAZ's then superior Dr. Pearl.

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But NAZ alleged Pearl

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did not learn of that testimony until April 2018, evidenced by a sudden change in the way Dr. Pearl treated Ms.

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Nas, going from one of cordiality to belligerence and harassment.

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At that point, and from then on, from that point when Dr. Pearl learned of the allegations the testimony Ms.

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Nas had made, from then on, in a relatively rapid fashion, over 30 months, a series of materially adverse

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Employment actions were thrust upon Nas by Pearl and by Pearl's successors who Nas alleges sympathized with Pearl.

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So there was the immediate creation of a hostile work environment from the moment Pearl learned of Nas' testimony.

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Elittling, using racially charged language in a conversation with her, yelling at her.

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There were immediate behind the scenes emails designed

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to thwart reasonable transfers within the department.

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They came immediately after Pearl learned of the testimony.

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There were then repeated denials of training opportunities, denied telework opportunities.

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She was undeservedly placed on performance improvement plans.

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She was denied an automatic step increased pay raise.

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She was given unwarranted poor performance reviews, as she states in her complaint.

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And she was subject subjected to unreasonable project requirements.

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Can I ask, so the items that you just enumerated, are they all items that are in the plaintiff's complaint?

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Absolutely.

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They are.

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I guess, Mike, I have a follow-on question to that, which is there's also some materials that are in the plaintiff's opposition to the defendant's devotion to dismiss, including some allegations that go to, potentially go to a discrimination claim.

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For example, on page five of

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The motion there's a reference to a statement.

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Find if it says.

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Because.

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This is allegedly a statement by Pearl.

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who said, burning with extreme anger and rage, shouted at me, you will not stay at a place where I will choose for you at a rate of $110 because you Indians slash Asian are accustomed to low standards of living and you cannot have a luxury of government's money, et cetera.

[00:04:45] Speaker 03:
So there's at least a couple of statements that are made, not in the complaint, but in the opposition to the motion to dismiss.

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Correct.

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And what is the, I don't know that there was a reference to those in the,

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in the briefing.

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But it's in the underlying materials below.

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Correct me if there's a reference in the briefing.

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I'm all ears.

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In our brief, we did not refer to page five of that opposition to the motion to dismiss.

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Did you refer to the opposition at all?

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We did not.

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OK.

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And I take that as a given.

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So I guess my question is, if there are statements in that submission by the pro se plaintiff below, what do we do with that?

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Well, the question, I think, is the opposition to the motion to dismiss evidence of sort of amplification of her claims as stated in the complaint.

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And I will note that she not only had her complaint, but she had a supplement to the complaint, which could be deemed almost an amendment to the complaint.

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And just to elaborate on it, and you likely are very well aware of this, but we have decisions in which

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Whole Foods is the main one, but we have decisions in which we've looked to this exact pleading.

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opposition to a motion to dismiss to elaborate on pro se plaintiff's allegations.

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I mean, I think that's particularly in the context of a pro se plaintiff.

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It's just that what the unique circumstances here is that for our purposes on appeal, what we're reviewing is a district court decision to grant a motion to dismiss.

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And if the plaintiff or no submissions before us draw our attention to

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that pleading, then we're naturally going to look at the complaint.

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Yeah.

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But the fact of the record is that that pleading is there.

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Yes.

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Well, her complaint does note this conversation does note this conversation that she the conversation about the travel about the trip that she doesn't include this particular doesn't include that particular

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because you Indians Asians are accustomed to low standards of living.

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It does say it singled her out for her writing because non-native people cannot write.

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That's the complaint.

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We've got that one and that's the one.

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So I would say this for a pro se litigant, I'm certainly these are helpful allegations and it would be to Ms.

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Naz's benefit to have these considered along with her complaint.

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I don't think we need them.

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because the complaint is quite voluminous.

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And it has an exhibit A and an exhibit B that are quite detailed.

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And then she has the additional supplement.

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But these are helpful.

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The one thing I will say is I don't think it should then allow the government to bring in everything that they then papered their motion to dismiss with, which was really a summary judgment motion.

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It was a motion to dismiss and a summary judgment motion.

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And so I would want to guard against that.

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If, for instance,

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including what Ms.

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Nas said in response to the motion to dismiss is going to open the door for the government to add hundreds of pages of materials that were attached to their motion to dismiss, I would oppose that.

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But certainly, when a plaintiff who's pro se amplifies and gives details that aren't contradictory to her complaint and does so in an opposition to motions

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to dismiss.

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And it's her own statement.

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This is her own statement.

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I would certainly have no objection to them being considered in further support of her case.

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So all of the consequences I mentioned occurred after Pearl learned of the testimony.

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And so what she describes is a typical situation of retaliation.

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They meet the plausibility standard because there's nothing outlandish about them.

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There's nothing against common sense that this could have occurred.

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It's not irrational.

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to think that a superior would have reacted hostily to testimony that she had engaged in racial discrimination.

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And what Ms.

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Nas did was actually far more than what she had to do under this court's case in Rashan versus Gonzalez, 438 F30 2011.

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And at 1220, the court said there, on causation, in order to survive a motion to dismiss, all the complaint has to say

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is the government retaliated against me because I engaged in protected activity.

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That's a direct quote.

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In order to survive a motion to dismiss, all the complaint has to say is the government retaliated against me because I engaged in protected activity.

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She has said that over and over and over.

[00:09:15] Speaker 02:
What case is that?

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This is Roshan versus Gonzalez.

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From what year?

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2005.

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Yeah, that's three Twombly and Eggball.

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Yes, it is, it is, but I'm not aware that it's since been it has since been cited.

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I'm not aware that it's it has that that standard.

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Can I just want one consideration?

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Our cases put a lot of weight on the amount of time that passes between.

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The protected activity.

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And the adverse actions that are alleged to be retaliatory.

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And here it's it's at least 6 months.

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The testimony is October 2017.

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The hostility begins April 2018.

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We've said think 3 or 4 months is usually too long.

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So what do you do with that.

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Well, her point is that

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The person who discriminated against her, Dr. Pearl, didn't know of that testimony.

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How do we know that?

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Because she alleged it.

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We have to accept it as true.

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We have to accept it as true.

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If that's the basis for that inference, there's nothing left in our timing.

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But she has also alleged that

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in March, let's say March, February, January of that year, since from October to April, Dr. Pearl treated her well, was cordial.

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There were no questions about her performance.

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She got a good performance review.

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And then she says in April, she- Which is just to say that there's a long time limit between the protected activity and the alleged retaliation.

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That cuts against- But it's not irrational to think that Dr. Pearl

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didn't know of the testimony until April.

[00:11:04] Speaker 02:
No, but the only basis for your saying he didn't know the testimony is this passage of time, six months.

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That's right.

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The six months.

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I think what we have to do is look at the proximity of the adverse acts to Dr. Pearl's understanding of when the discrimination occurred.

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One other point about this is that in

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couple of other points.

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But one point is that in March of that year, one month before, that's when Mr. Dickerson, who had brought the racial discrimination claim, left.

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And it is plausible to think that once he left, Dr. Pearl learned of all the details of the testimony and the case against her that was brought by Mr. Dickerson.

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And it is immediately after that that Nas suffers the initial bad treatment.

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The other thing I would say is what

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the timing rule is it's a presumption.

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You can assume an inference of retaliation if there's a close proximity.

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She doesn't need the presumption.

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She has a couple of other facts that clearly lead to an inference of retaliation.

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One is for 17 years she enjoyed

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wonderful employment situation got no demerits ever.

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She then testifies and then all of the bad acts begin one by one by one.

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The only difference between the two periods is the testimony in between.

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In fact, one other fact too that's in her complaint is that in 2017 she did a very similar paper to the one in 2018 that Dr. Pearl deems

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and subject to performance review and failure.

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2017, she got no criticism whatsoever for that paper.

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2018, Dr. Pearl finds every aspect of it problematic.

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The only difference between the two situations is not as testified in between.

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So she doesn't need the temporal presumption because the other facts add up to one where, well, plausibly, this all could have, this sea change that occurred

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may have occurred because of her because of her testimony.

[00:13:23] Speaker 03:
Thank you, Mr Charlie.

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We'll give you a little time for rebuttal.

[00:13:25] Speaker 03:
Thanks.

[00:13:33] Speaker 04:
Good morning, Your Honors.

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May it please the court?

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Johnny Walker on behalf of the Secretary of Energy.

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I first want to address the standard.

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My friend cites Roshan, a 2005 case for this proposition that all a retaliation plaintiff needs to allege is that I engaged in protected activity and the government retaliated against me.

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This court has said explicitly that Roshan is no longer a good law post Twombly.

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That is in Hoe versus Garland, 106F47.

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So Roshan is no longer a good law.

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And the premise that my friend would have the court accept is precisely that that is all a plaintiff alleges.

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What he asks the court to do is to infer from the mere fact that Ms.

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Nas experienced unfavorable treatment in April of 2018, to infer from that unfavorable treatment alone that Ms.

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Pearl, who supposedly

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perpetrated that unfavorable treatment, knew of the protected activity, and performed the unfavorable treatment because of that protected activity.

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So they're trying to bootstrap the causation requirement of the causation element of a retaliation claim on a mere showing of protected activity and unfavorable treatment.

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And this court's case law, particularly Hoe versus Garland, just does not allow for that.

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So you may well be right.

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I just don't remember it offhand.

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You're saying that in Ho the court specifically discounted the Roshan standard.

[00:15:02] Speaker 04:
The court said in no uncertain terms that it was joining a chorus of district judges in this circuit in rejecting Roshan saying it is no longer good law after Iqbal.

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The court specifically referenced the Roshan language and said it was

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Yes.

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And I mean, that makes sense from ICBAL.

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I mean, ICBAL itself is a discrimination case.

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And the holding in ICBAL was that the plaintiff could not simply allege that I was experienced unfavorable treatment in ICBAL.

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It was designation as a high interest individual in a detention and just simply label that as discrimination.

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There needs to be plausible facts that support that kind of conclusory statement.

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All that may well be right.

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I'm just not immediately seeing where we set that in.

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Oh, can you just point me to?

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It is a footnote.

[00:15:49] Speaker 01:
Oh, I see.

[00:15:52] Speaker 03:
Sorry, I don't have the exact page.

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Oh, I see.

[00:15:54] Speaker 03:
Maybe it's in footnote two.

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OK, got it.

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Yes.

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Footnote two, Leach 51.

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So that gets to the requirement that there needs to be some kind of plausible facts going particularly to causation.

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And you just don't have those here.

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All of the protected that you can get that sometimes with a temporal proximity.

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There's just no temporal proximity between any adverse action and protected activity here.

[00:16:20] Speaker 01:
I want to.

[00:16:21] Speaker 01:
Oh, goes on.

[00:16:24] Speaker 01:
Does it not to apply a

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standard that is somewhat less narrow than the one that you are urging upon us?

[00:16:35] Speaker 04:
I don't think so at all, Your Honor.

[00:16:37] Speaker 04:
I think what Ho says is that a plaintiff needs to allege plausible facts to establish three different elements for a retaliation claim.

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They must show that they engaged in protected activity.

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They must show that they experienced a materially adverse action.

[00:16:51] Speaker 01:
And they must show this is what the Council.

[00:16:53] Speaker 04:
I'm sorry.

[00:16:53] Speaker 01:
Oh, no question about that.

[00:16:56] Speaker 01:
But Ho also says that we have to resolve Ho's relevant allegations in the light most favorable to him and then consider their combined effect.

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And I understood that's what this complaint is all about.

[00:17:18] Speaker 01:
Here's an economist who's worked for 17 years plus 18 months and all of a sudden something happens.

[00:17:26] Speaker 01:
And what's happened, and she says the only thing that happened is she testified against her supervisor in a discrimination case.

[00:17:35] Speaker 04:
No, actually, Your Honor, the adverse treatment occurred many months after her testimony.

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She testified in October of 2017, and she doesn't experience adverse treatment as alleged in the complaint until April 2018.

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And that adverse treatment is not even something that's independently actionable.

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It's the fact that her supervisor got mad at her about a hotel reservation she had made and used some charged language.

[00:18:01] Speaker 04:
So there's a temporal difference between the protected activity and the adverse treatment.

[00:18:07] Speaker 04:
The way she tries to, or the way Amicus tries to bridge that is to ask the court to infer everything else needed for a retaliation claim from the mere adverse treatment alone, to infer that because she was treated poorly.

[00:18:19] Speaker 01:
I just want to understand how government is reading HO because HO goes over these cases saying, oh, that's too long, this is too long, and that's too long.

[00:18:32] Speaker 01:
a gap.

[00:18:35] Speaker 01:
But then it says, post-complaint, however, does not rely solely on timing.

[00:18:43] Speaker 01:
And then we spend pages talking about all the other things.

[00:18:48] Speaker 04:
Right.

[00:18:48] Speaker 04:
No doubt, Your Honor.

[00:18:49] Speaker 01:
So I'm wondering how this court is supposed to read allegations on a motion to dismiss appeal.

[00:18:59] Speaker 04:
I think the way to read Ho and something that we acknowledge is that temporal proximity is not the only way to create an inference of causation for retaliation claim.

[00:19:07] Speaker 04:
You can show pretext, you can show differential treatment with other similarly situated employees, but none of that is here.

[00:19:13] Speaker 04:
And what I take Amicus's argument to be is to try to rely on temporal proximity, but then to close that gap by inferring sudden knowledge

[00:19:22] Speaker 04:
to coincide necessarily from the unfavorable treatment alone.

[00:19:28] Speaker 04:
So the way they would have the inference go is, my employer got mad at me about a hotel reservation.

[00:19:33] Speaker 04:
Therefore, she learned that same month that I engaged in protected activity.

[00:19:37] Speaker 04:
And there's just no reasonable inference to be drawn from that.

[00:19:40] Speaker 04:
That's a non sequitur.

[00:19:42] Speaker 03:
I just want to make this.

[00:19:43] Speaker 03:
The clock that we're looking at appears to be frozen to make sure that we have a clock that's maybe in operation somewhere.

[00:19:51] Speaker 03:
But we'll keep her off track.

[00:19:54] Speaker 04:
I'm happy to wrap up whenever your honors are finished with questions.

[00:19:58] Speaker 03:
I just want to make sure that our clock's actually functioning.

[00:20:01] Speaker 03:
But it is.

[00:20:02] Speaker ?:
OK.

[00:20:03] Speaker 03:
You had a question?

[00:20:04] Speaker 01:
Yeah.

[00:20:05] Speaker 01:
Can I follow up on one quick point, Chief?

[00:20:09] Speaker 01:
And that is the discrimination

[00:20:14] Speaker 01:
proceeding that Mr. Dickerson brought, where Mrs. Nas testified.

[00:20:24] Speaker 01:
Did Mrs. Pearl appear as a witness?

[00:20:29] Speaker 04:
I want to clarify something about that.

[00:20:31] Speaker 04:
That was not an in-person hearing.

[00:20:33] Speaker 04:
What Ms.

[00:20:34] Speaker 04:
Nas did was she filled out an under oath questionnaire as part of the investigation.

[00:20:38] Speaker 01:
Oh, we understand that.

[00:20:40] Speaker 01:
But the question is, did Mrs. Pearl

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participate in that proceeding.

[00:20:47] Speaker 04:
I don't think that's in the complaint.

[00:20:49] Speaker 04:
I would.

[00:20:50] Speaker 01:
I think it's person being accused.

[00:20:53] Speaker 01:
Yes, I think it.

[00:20:55] Speaker 01:
A reasonable inference to suggest that the commission saw her views.

[00:21:01] Speaker 04:
I think it is, Your Honor.

[00:21:02] Speaker 04:
I think that is a reasonable inference to say that she likely knew about Mr. Dickerson's complaint.

[00:21:07] Speaker 04:
I don't think there's any reasonable inference to be drawn that she knew about Ms.

[00:21:10] Speaker 04:
Nas' separate testimony.

[00:21:12] Speaker 04:
That's typically done in a confidential process, and there's no reason that she would know about Ms.

[00:21:17] Speaker 04:
Nas providing a separate affidavit.

[00:21:22] Speaker 02:
So I take your point on temporal proximity.

[00:21:27] Speaker 02:
I was going to ask your

[00:21:30] Speaker 02:
Your friend says on the facts of this case, we have a nice comparator, which is she does, she submits one report before and seems to be fine, different report after, and it gets not specific.

[00:21:51] Speaker 02:
criticism about well what about this argument or that argument against this sort of global like this is terrible response and the stark contrast between the two is perhaps suggestive.

[00:22:03] Speaker 04:
I think it's I think it's somewhat conclusory when she says this report was the same as this other report that I. That was treated the same way they did not get this criticism there's no she doesn't sort of like dry out any of those specific facts and we also know what the criticism was about her California irrigation report is that she cut and pasted nearly all of it from the Internet.

[00:22:22] Speaker 04:
And so I don't think it is plausible to believe that a government agency that is in the business of publishing studies for public use would find it acceptable for one of their researchers to cut and paste entire portions of their report from the internet and publish that on behalf of the Energy Information Administration.

[00:22:39] Speaker 01:
That's speculation, isn't it?

[00:22:44] Speaker 01:
And you don't know what the 2017 report did, do you?

[00:22:50] Speaker 01:
Well, I just want to understand, after reading Ho and after reading some of the Supreme Court's more recent cases, it seems to me there's some loosening up from what there had been in these appeals on motions to dismiss, even after Iqbal.

[00:23:14] Speaker 04:
I don't read HOE that way, Your Honor.

[00:23:16] Speaker 04:
In fact, I think HOE stands in a very nice contrast to this case here.

[00:23:20] Speaker 04:
In HOE, like in this case, there was a non-promotion claim.

[00:23:24] Speaker 04:
In this case, Ms.

[00:23:25] Speaker 04:
Naas just says, generally, I was denied promotion opportunities, and it was because of retaliation.

[00:23:31] Speaker 01:
Actually, she was denied a step increase.

[00:23:35] Speaker 04:
That's separate.

[00:23:36] Speaker 04:
We addressed the step increase separately.

[00:23:37] Speaker 04:
We acknowledge that.

[00:23:38] Speaker 01:
Actually, they both involve money.

[00:23:41] Speaker 04:
Well, she doesn't specify any promotion is the problem.

[00:23:44] Speaker 04:
But in Ho, the plaintiff there specified a particular job that he had applied for.

[00:23:49] Speaker 01:
Oh, counsel, I'm just saying by analogy, denial of a step increase, that denies the same thing in one sense as a promotion, more money.

[00:23:58] Speaker 01:
It may not change your job duties, but you do get more money.

[00:24:02] Speaker 04:
No, I can address the step increase separately.

[00:24:04] Speaker 04:
I think that's a separate issue from this general sort of allegation that she was denied promotion opportunities.

[00:24:09] Speaker 04:
But contrasting the general denial of promotion opportunities with Ho and Ho, there was a particular job for which the gentleman had applied.

[00:24:16] Speaker 04:
He alleged that many of the at least three of the people involved in the promotion were specifically the targets of his prior protected activity.

[00:24:23] Speaker 04:
He alleged that the ATF, which was the agency at issue there, had a particular need to fill this position.

[00:24:29] Speaker 04:
and that it declined to fill that position because he and another individual who applied for it had engaged in protected activity.

[00:24:35] Speaker 04:
So far more detail than Ms.

[00:24:37] Speaker 04:
Nas has with respect to any promotion that she was purportedly denied and the court in Ho noted that it was a very close case and that it only narrowly got over the line and that any one of the allegations that Mr. Ho had made alone would be not enough.

[00:24:50] Speaker 04:
Here Ms.

[00:24:51] Speaker 04:
Nas has none of those obligations which is clearly not enough.

[00:24:54] Speaker 04:
On the step increase, that is a separate matter that could be a denied promotion.

[00:24:58] Speaker 04:
That is the way that the district court read Mr. or Ms.

[00:25:02] Speaker 04:
Nas's complaint and it's the way we read it as well.

[00:25:04] Speaker 04:
But as we note, the only protected activity that that step increase was proximate to

[00:25:11] Speaker 04:
was her own filing of a complaint, and she had received a fails to meet expectations performance rating before that.

[00:25:17] Speaker 04:
And that fails to meet expectations rating is what rendered her ineligible for the step increase.

[00:25:22] Speaker 04:
So there's no causal connection to be tied to the intervening protected activity.

[00:25:27] Speaker 03:
Can I ask about the opposition to the motion to dismiss?

[00:25:31] Speaker 03:
Yes.

[00:25:31] Speaker 03:
So before a district court as a general matter,

[00:25:35] Speaker 03:
when a case involves a pro se plaintiff, our cases say that an opposition to a motion to dismiss is the type of pleading that the court would take cognizance of, including factual allegations in there.

[00:25:49] Speaker 03:
You don't disagree with that?

[00:25:51] Speaker 03:
Not at all, Your Honor, yes.

[00:25:52] Speaker 03:
All right, so then the question becomes, this one does have some allegations in it that go to discrimination, this one being this opposition to the motion to dismiss.

[00:26:01] Speaker 03:
What do we do with that on appeal?

[00:26:03] Speaker 04:
I think there are a few sort of caveats that I'll add to your observation.

[00:26:07] Speaker 04:
I think that Ms.

[00:26:08] Speaker 04:
Noss filed a few things in the district court that were just document dumps, essentially.

[00:26:12] Speaker 04:
And I don't think there's any sort of obligation for a district court to go wading through document dumps and find evidence in the plaintiff's favor.

[00:26:17] Speaker 04:
It has to be presented by the plaintiff.

[00:26:21] Speaker 03:
I think that's right.

[00:26:22] Speaker 03:
There's got to be some

[00:26:24] Speaker 03:
There's got to be some apportionment here.

[00:26:25] Speaker 03:
But these are on the face of this pleading.

[00:26:27] Speaker 03:
And this is a particular pleading that this court has looked to in the past, including in the Whole Foods case.

[00:26:33] Speaker 04:
I mean, obviously, I don't think any of that stuff has been preserved on appeal.

[00:26:36] Speaker 04:
There's not been a basis to reverse the district court's argument.

[00:26:39] Speaker 04:
But I do want to address the comment that Your Honor highlighted about the hotel reservation.

[00:26:44] Speaker 04:
So that was a comment that was supposedly made by Miss Pearl in this April 2018 incident with the hotel reservation.

[00:26:51] Speaker 04:
Do not certainly do not admit that she made that comment, but we do accept it as true on a motion to dismiss as you must.

[00:26:57] Speaker 04:
So the only two discrimination claims in the complaint were over this lack of promotions and then the termination.

[00:27:06] Speaker 04:
So even if you have this indication of discriminatory animus on the part of Ms.

[00:27:11] Speaker 04:
Pearl, and it can certainly be inferred to be that given the charge nature of the comment, it is not related in any way to any promotion that she was denied.

[00:27:19] Speaker 04:
As I said, the only sort of concrete promotion denial that she has in there

[00:27:22] Speaker 04:
is the step-increase denial, which was under a completely different supervisor.

[00:27:28] Speaker 04:
That was under Mr. Gross.

[00:27:29] Speaker 04:
And then, of course, her termination was the result of a performance development period and notice of proposal, proposed removal that Mr. Gross, not Ms.

[00:27:38] Speaker 04:
Pearl, put her on.

[00:27:39] Speaker 04:
So there's no connection between the alleged discriminatory actions and Ms.

[00:27:43] Speaker 04:
Pearl herself.

[00:27:43] Speaker 04:
She had no role in them.

[00:27:45] Speaker 03:
Then with respect to Gross, there's a statement also on the defendants.

[00:27:48] Speaker 03:
the opposition to the motion to dismiss that says that Gross said, and again, it's just an allegation at this point, of course, that Gross said that when in response to requests of religious accommodation that their place of work was a workplace, not a religious institution, and he doesn't believe in Islamic religious extremism.

[00:28:05] Speaker 03:
And that's another comment that's in there.

[00:28:08] Speaker 03:
And I guess my question is more a procedural one, which is,

[00:28:12] Speaker 03:
You may have a response that even taking into account these allegations, which we take to be true at the stage of the proceedings, without saying that you acknowledge that they're true, of course, that they might not be enough.

[00:28:22] Speaker 03:
And we can consider that.

[00:28:24] Speaker 03:
But my question is a procedural one about what we do with the fact that they exist.

[00:28:30] Speaker 03:
on appeal, what's the government's view about what we should do with that, given that it wasn't something that I think was brought to the district court's attention.

[00:28:37] Speaker 03:
So understandably, the district court may not have taken cognizance of it in the course of its decision.

[00:28:43] Speaker 03:
But we know that they're in there, and we know that our cases say that that type of fleeting is something that you do take cognizance of in the case of a prosaic.

[00:28:51] Speaker 04:
Yes, but I don't think there's any error on the part of the district court here when there was so many.

[00:28:55] Speaker 04:
I mean, I think her opposition consisted of something over 1,000 pages.

[00:28:58] Speaker 04:
And so I don't think there's any.

[00:29:00] Speaker 04:
And then there were some multiple, over 100 page, I think it was over 300 pages of supplement.

[00:29:06] Speaker 03:
That's what the.

[00:29:08] Speaker 04:
Yes, it's not all the time clear when the brief is ending and the attachments are beginning and then the brief is picking back up.

[00:29:13] Speaker 04:
So I think with such a prolix nature of filings made by Ms.

[00:29:18] Speaker 04:
Nas and the district court, maybe there are some

[00:29:20] Speaker 04:
some truffles buried in there somewhere.

[00:29:22] Speaker 04:
I don't think the district court erred by not combing through every single page of those to find evidence.

[00:29:27] Speaker 03:
I think that's generally true.

[00:29:29] Speaker 03:
OK, then let me ask the question this way, because I think we're just not meeting.

[00:29:32] Speaker 03:
Suppose we have a case in which there's a opposition to a motion to dismiss that should be taken into account.

[00:29:38] Speaker 03:
You admit that there is such a case?

[00:29:40] Speaker 03:
Yes.

[00:29:40] Speaker 03:
There can be such a case, because our cases say that.

[00:29:42] Speaker 03:
OK.

[00:29:43] Speaker 03:
So suppose that we have such a case.

[00:29:45] Speaker 03:
And then in that case, the district court, for whatever reason, doesn't take cognizance of allegations in there.

[00:29:51] Speaker 03:
And it may be that those allegations, were they taken into account, wouldn't change anything.

[00:29:55] Speaker 03:
I'm willing to accept that too.

[00:29:57] Speaker 03:
But let's just suppose that that sort of case exists.

[00:29:59] Speaker 03:
And then on appeal, we're confronted with that confluence of circumstances.

[00:30:06] Speaker 03:
What do we do with it on appeal?

[00:30:09] Speaker 04:
Like I say, I think that there is a question of whether or not it was adequately presented to the district court.

[00:30:13] Speaker 04:
If it's buried in thousands of pages of filings, I don't think the district court is obligated to construe all of that.

[00:30:19] Speaker 03:
In which case we could just affirm.

[00:30:20] Speaker 03:
But then we would be engaging with the comments and we were reaching the substantive conclusion that the district court wasn't required to look at it because it was at page 573 of a

[00:30:29] Speaker 03:
of a 1000 page appendix of a 1000 page filing, which I totally understand.

[00:30:34] Speaker 03:
But I'm hypothesizing a situation in which there it's in smack dab in the middle of a seven.

[00:30:39] Speaker 03:
Just make it clear, make it easy.

[00:30:40] Speaker 03:
It's a two page pleading.

[00:30:42] Speaker 03:
Okay, and it has some allegations in it.

[00:30:44] Speaker 03:
And they just aren't referenced.

[00:30:47] Speaker 03:
What do we do with that on appeal?

[00:30:51] Speaker 04:
I think it's a tough question.

[00:30:52] Speaker 04:
I do think there's a line between this obligation to construe the pleading in light of subsequent filings and forfeiture arguments and something that's not properly presented and highlighted is still subject to forfeiture in the district court.

[00:31:05] Speaker 04:
And I think it's obvious and which would obviously permit the district court to disregard that.

[00:31:09] Speaker 04:
And obviously, there's forfeiture rules that apply on appeal.

[00:31:12] Speaker 04:
And we think those rules would apply here, where those items buried in the record were not brought up on appeal.

[00:31:17] Speaker 04:
You do.

[00:31:17] Speaker 04:
You think that's a forfeiture on appeal here?

[00:31:20] Speaker 02:
Yes.

[00:31:20] Speaker 02:
Is there not an intelligible distinction between her district court opposition, between the brief itself and the 1,000 pages of attachments?

[00:31:32] Speaker 04:
When I looked through them, I remembered being somewhat confused about because there's items in the attachments that she created.

[00:31:40] Speaker 04:
It's obviously her own work product.

[00:31:41] Speaker 04:
It's not clear if it was work product that was intended for presentations at the district court or that she just kept these sort of like as notes herself.

[00:31:51] Speaker 04:
Some of them, I think I'm thinking of particularly I'm recalling my review of some of the supplements that she filed.

[00:31:56] Speaker 04:
They have served the district courts.

[00:31:57] Speaker 04:
and court number written on them, which makes it seem like they were something she prepared for presentation to the court.

[00:32:03] Speaker 04:
But I think in some places, yes, there is a difficulty to draw that distinction.

[00:32:06] Speaker 02:
And this one is, I mean, sorry, because just what I was, the follow-up I was going to ask you is suppose we agree that the district court doesn't have to look through the 1,000 pages of attachments.

[00:32:24] Speaker 02:
but does have to look through what's in the actual brief in the in the opposition.

[00:32:30] Speaker 02:
And you know what what result then.

[00:32:35] Speaker 02:
And suppose we do the same thing sure the cutoff is the complaint and the opposition.

[00:32:41] Speaker 02:
Not the.

[00:32:43] Speaker 02:
truffles buried in the attachments.

[00:32:45] Speaker 04:
So I guess then it becomes a question of even material presented in the brief.

[00:32:48] Speaker 04:
There's a question of how it is presented and whether or not it is incorporated into an argument.

[00:32:54] Speaker 04:
Because if it's not incorporated into an argument in a cogent way, then I think there's still forfeiture principles that would apply.

[00:32:59] Speaker 03:
So here it's on page five and page seven to eight of the brief itself, regardless of the attachments and everything else that accompanies it.

[00:33:07] Speaker 03:
And they're just stated as facts.

[00:33:10] Speaker 03:
Just says, I asked her why the EIA, this is on page five, EIA travel agent had already made that reservation in Naples, et cetera, et cetera.

[00:33:18] Speaker 03:
Miss Kelly Pearl, burning with extreme anger and rage, replied by shouting at me, quote, you will stay at a place which I would choose for you at a rate of $110 because you Indians slash Asian are accustomed to low standards of living and you cannot have a luxury of government's money by staying at the Hyatt Regency Hotel at a rate of $236 per night, close quote.

[00:33:37] Speaker 03:
That's just on page five.

[00:33:40] Speaker 03:
the cleaning is not buried in an attachment.

[00:33:45] Speaker 04:
I guess there's still sort of a separate question as to whether or not it goes to the claims.

[00:33:49] Speaker 04:
Obviously, the district court doesn't commit an error by not addressing something that doesn't go to the claims.

[00:33:54] Speaker 04:
As I said here, we have the discrimination claims at issue are things that Mr. Gross did, not Mr. Miss Pearl.

[00:34:00] Speaker 04:
And I believe the statement that your honor just read was from Miss Pearl about the hotel reservation in 2018.

[00:34:05] Speaker 04:
The denial of the step increase was

[00:34:07] Speaker 04:
much later by Mr. Gross.

[00:34:08] Speaker 04:
The termination was much later by Mr. Gross.

[00:34:11] Speaker 04:
And I think even with respect to Mr. Gross's statement that Your Honor mentioned, there still has to be.

[00:34:15] Speaker 04:
Right.

[00:34:15] Speaker 03:
I mean, on that logic, then Pearl could have said all kinds of stuff.

[00:34:17] Speaker 03:
There could be a litany of 300 pages of direct allegations about Pearl, and it never would matter.

[00:34:21] Speaker 03:
And as a legal matter, we can have a question about that.

[00:34:24] Speaker 03:
But on the question of whether a district court appropriately apprised should take account of those allegations, that seems like a different

[00:34:33] Speaker 04:
I don't know that it is.

[00:34:34] Speaker 04:
I don't think the district court needs to take account of allegations that are sort of gratuitous and don't go to the claims that are proposed.

[00:34:40] Speaker 04:
And it doesn't need to take into account allegations that are not sufficiently incorporated into an argument in favor of a claim so as to be forfeited.

[00:34:50] Speaker 03:
Wouldn't they go to a hostile work environment claim?

[00:34:51] Speaker 03:
At least I know you can have a question about whether the direct supervisors, if you envision one in which repeated claims over time is something that you can just entirely disregard, even if it's a subsequent supervisor who makes the decision.

[00:35:02] Speaker 04:
I mean, I don't think this complaint contains a hostile work environment claim.

[00:35:06] Speaker 04:
Certainly nobody has construed it.

[00:35:07] Speaker 03:
I think it references it, but it wasn't developed.

[00:35:09] Speaker 04:
Yeah, it hasn't been developed at all.

[00:35:11] Speaker 04:
I think we would have separate arguments about a hostile work environment claim for such a claim to be actionable.

[00:35:17] Speaker 04:
It would have been timely exhausted.

[00:35:19] Speaker 04:
It would have had to be a cogence and continuance and linkage of all the events.

[00:35:24] Speaker 04:
We know that the court has said that,

[00:35:28] Speaker 04:
simply trying to regulate a civil workplace is sort of like outside the bounds of a hostile work environment claim.

[00:35:35] Speaker 04:
It has to rise to something else.

[00:35:36] Speaker 04:
So I think you would have a lot of arguments against a hostile work environment claim.

[00:35:40] Speaker 04:
So it wouldn't necessarily go to that.

[00:35:42] Speaker 04:
And like I said, nobody has sort of assigned any error with respect to the complaint not being construed as containing a hostile work environment claim.

[00:35:51] Speaker 03:
I'm sure my colleagues don't have additional questions.

[00:35:54] Speaker 04:
Thank you, Council.

[00:35:55] Speaker 04:
Thank you very much.

[00:35:56] Speaker 04:
Please affirm the district court.

[00:36:00] Speaker 03:
We'll give you two minutes for a rebuttal.

[00:36:02] Speaker 05:
Thank you.

[00:36:03] Speaker 05:
Just a few points.

[00:36:04] Speaker 05:
What host takes aim at Roshan for is threadbare allegations.

[00:36:09] Speaker 05:
And Ms.

[00:36:10] Speaker 05:
Naz's allegations are not threadbare.

[00:36:11] Speaker 05:
And I point the court to the appendix at 14, paragraphs one, five, and seven particularly, where she concisely summarizes a retaliation claim.

[00:36:22] Speaker 05:
There she says, Farah Naz enjoyed an unblemished career of nearly two decades of service with the federal government.

[00:36:28] Speaker 05:
When plaintiffs spoke out against the rampant race discrimination that pervades the agency, she became the victim of a sustained and pretextual campaign designed to remove her from her position.

[00:36:38] Speaker 05:
Plaintiff performed her job capably and without critique for the first two years at the Department of Energy.

[00:36:43] Speaker 05:
But as soon as she agreed to testify against Dr. Kelly Pearl, a hithero, unimaginable degree of scrutiny was trained on plaintiffs every action.

[00:36:51] Speaker 05:
Management grew openly hostile to her, mocked her, and erected and resurrected a series of Byzantine obstacles

[00:36:57] Speaker 05:
claim of success that were ultimately used to destroy her storied career.

[00:37:00] Speaker 05:
That's not threadbare.

[00:37:02] Speaker 05:
I would also say on the idea that what was said about Ms.

[00:37:07] Speaker 05:
Naz's paper in 2018 is completely outside the complaint.

[00:37:10] Speaker 05:
The idea that it was subpar is not in Ms.

[00:37:13] Speaker 05:
Naz's complaint.

[00:37:14] Speaker 05:
In fact, she says the exact opposite, that it was an excellent paper and it was, and the statements about it were pretextual.

[00:37:21] Speaker 05:
And then the last point I'd like to make is that there were consequences immediately after June, after the April, 2018 learning by Judge Pearl, excuse me, by Dr. Pearl of the testimony.

[00:37:36] Speaker 05:
One is she, Ms.

[00:37:39] Speaker 05:
does not immediately asked for a transfer.

[00:37:42] Speaker 05:
Uh, and she was told by one superior, see if you can get that.

[00:37:46] Speaker 05:
Go talk to various people.

[00:37:47] Speaker 05:
And Dr Pearl in the in April, May and June sent emails to all these various people saying don't talk to her.

[00:37:54] Speaker 05:
She's a complainer.

[00:37:55] Speaker 05:
Uh, and this comes after her testimony, uh, after her testimony in favor of Mr Dickerson.

[00:38:01] Speaker 05:
All those are in the complaint.

[00:38:03] Speaker 05:
There's nothing threadbare about it.

[00:38:05] Speaker 05:
And

[00:38:06] Speaker 05:
It states a typical claim of retaliation.

[00:38:09] Speaker 05:
She should have had an opportunity to go to the merits in the usual course and prove her claim.

[00:38:16] Speaker 05:
She was denied that opportunity by the district court.

[00:38:18] Speaker 05:
So we'd ask that you reverse the district.

[00:38:21] Speaker 03:
Thank you, counsel.

[00:38:22] Speaker 03:
Thank you to both counsel.

[00:38:23] Speaker 03:
We'll take this case under submission.

[00:38:24] Speaker 03:
Thank you.

[00:38:25] Speaker 03:
Mr. Shelley, you are appointed by the court to present arguments in support of the appellant in this matter.

[00:38:29] Speaker 03:
And the court thanks you for your assistance.

[00:38:31] Speaker 03:
Thanks very much.