[00:00:00] Speaker 01:
Case number 24-5243, Jawad and Tarkini appellate versus John Fallon, Secretary, U.S. Department of the Navy. Ms. Tarkini for the appellant, Mr. Harris for amicus curiae for appellant, and Mr. Sampath for the appellee.

[00:00:18] Speaker 03:
All right, you may approach and begin when you're ready. Good morning. Good morning. Good morning.

[00:00:27] Speaker 02:
Good morning, your honors. May it please the court. My name is Joanne Noel Tarquini, and I am the appellate appearing pro se. The district court granted summary judgment without examining whether the process that led to my termination was constitutionally sound. The record shows it was not. In July 2014, I reported discriminatory treatment and hiring violations against Carlos Saldana and his HR office in Okinawa, Japan. No one ever investigated my complaints.

[00:00:57] Speaker 02:
14 months later, Saldana was assigned to investigate me for the same type of hiring violations I reported against him. At the close of that investigation, Lieutenant Colonel Scott Manning signed a document on October 30th, 2015, concluding I was guilty based on that investigation that Saldana conducted. That document, along with the complete file, was withheld from me. As a disabled veteran, I was immediately removed and barred from the base overseas with no access to medical care.

[00:01:29] Speaker 02:
Two weeks later, Manning, who had already concluded I was guilty, supervised my only access to the evidence against me.

[00:01:37] Speaker 02:
It was time-limited partial review of a partial file with no copies allowed inside of a police station under armed guard. Manning and Saldana then directed and advised Colonel Boucher, who decided my appeal.

[00:01:53] Speaker 02:
My first line supervisor, Robert Johnston, proposed a termination, signing a hiring violation, issued me paperwork immediately to out process from the base, and then publicly gave me a professional endorsement that exact same night.

[00:02:08] Speaker 02:
During the termination meeting, he was in tears, and he told me five times that I didn't deserve it, that he was forced, and that I should fight it. Manning was present at that meeting as well. John Iwanek, my second-line supervisor, signed my termination changing the reason from hiring violation to employment misconduct. Then he gave me a glowing reference to the Department of Justice U.S. Attorney's Office. He testified that he had no reason but to give me a positive review. Ironic.

[00:02:39] Speaker 02:
The reasons for my termination shifted multiple times across multiple documents, from hiring to employment to poor performance to involvement in a process the government's own attorney, Jody Devine, admitted was within policy. In 2024, nearly 10 years later, I finally received the complete investigative file that they relied on in 2015 to terminate me.

[00:03:04] Speaker 02:
The staffing specialist who actually performed the work testified clearly that the directions came from Cheryl Harkness, who was under the exact same investigation for the same conduct, not from me. The investigation file does not just fail to prove what they accused me of, it proves the opposite, that I wasn't involved. Colonel Boucher, the official who decided my appeal, testified that he remembered no evidence except the one statement from Cheryl Harkness. I never saw the statement, and I never got to question her.

[00:03:34] Speaker 02:
Boucher's own decision letter cited employment misconduct regarding both my husband and my brother as his basis for termination. But when he testified, he said that the decision was about hiring, non-employment misconduct at all, hiring. So when asked about my brother, Boucher said, I'm guessing now, so I don't know. My brother was included in the charges to create like an appearance of a pattern, but Boucher could not remember a single piece of evidence to support it because there was none.

[00:04:06] Speaker 02:
The district court affirmed summary judgment in a process that was riddled with contradictions, ex parte communications, shifting charges with no notice or clear opportunity to respond, conflicted advisors, and a decision resting entirely on a statement from a witness who was under the investigation for the same conduct. Manning and Saldana had already concluded I was guilty. Boucher depended entirely on their direct counsel and direction. So the outcome was decided before it even reached his desk.

[00:04:38] Speaker 02:
There was no neutral process. And that is what I'm asking this court to correct. Thank you.

[00:04:44] Speaker 03:
Mr. Queenie, the Inspector General's report is the reason that your former employer gave for the discharge. But your case before us is a case of employment discrimination. The deciding officials, Mr. Johnson and Mr. Iwanek, in the record, they say they relied on the inspector general's report to make the decision that they needed to terminate your employment.

[00:05:24] Speaker 03:
Can you point us to anything in the record that that shows they did not actually believe in the validity of, they didn't believe in the validity of the inspector general's conclusions.

[00:05:42] Speaker 02:
Yes.

[00:05:43] Speaker 02:
So the day of termination, I was corresponding with headquarters and informing them of everything that was going on and everything that was happening contemporaneously. And I let the headquarters know, the director there, Dennis Ray, that my supervisor, Robert Johnson, was crying multiple times. He said that I did not deserve it. He said that it was not fair and that I should fight it. And further speaking with him, he said that Mr. Iwanek thought the same thing, that I did not deserve it, that I should fight it, and that it was not warranted.

[00:06:14] Speaker 02:
Then Mr. Johnston came and he gave me the reference that same night, that positive reference. And then Mr. Iwana gave me a positive reference to a promotion after that. So if they honestly believe that I created misconduct, then they would not have referred me as adamantly that they did after the fact. And as far as the investigatory file, I was only given a partial review of that. I didn't see the entire file until almost 10 years later. So the file that they so-called were using to support the investigation, I didn't get a copy and I didn't see it myself for almost 10 years later.

[00:06:53] Speaker 02:
I only had parts of the file over the course of 10 years that I did not receive. And that's what they said that they depended on the day that they terminated me. I didn't have access and I had no idea that any of that other file even existed until 2024.

[00:07:09] Speaker 05:
But I think that I heard you say, I want to make sure that I understand you correctly, that if one looks at that file, one would find that it does not substantiate the grounds for determination. Is that what you said earlier? That is correct. And why is that?

[00:07:35] Speaker 05:
direct me to what, if I were to read that file, what would I, what should I look for that would say that this is a sham?

[00:07:47] Speaker 02:
It's an excellent question, because I still don't know to this day the reason of the termination as stated in the termination documentation. So for example, Mr. Iwanek on the termination letter, he says that it's in reference to references that it's at the top of that termination document itself, but it doesn't list what those references are. It doesn't list anything. So I don't know what inside of that specific document that they were referencing. All I do know is that when I finally did receive the documents and I saw the whole file, inside of the document itself, there is a testimony and a statement from Kyori Yakohari, who was the staffing specialist who actually performed the duties.

[00:08:31] Speaker 02:
She testified and she stated very clearly that the direction came directly from Cheryl Harkness, who was also underneath that exact same investigation, not from me. So that's their own investigation that says very clearly where the direction came from, which has nothing at all to do with me. So that's in their investigation specifically.

[00:08:55] Speaker 03:
All right. And you have counsel for amicus who's agreed to argue on your behalf. Yes. So if you want to reserve time for rebuttal. Yes, I did. Right. So from you after we hear from from defendant, but we'll hear now from amicus. Yes.

[00:09:16] Speaker 07:
Good morning, Your Honors. Ben Harris is the court-appointed amicus in support of the appellant, and I'd like to reserve two minutes for rebuttal. The district court committed two fundamental errors, each of which warrants reversal. First, the district court failed to analyze whether Tarquini could prevail under a motivating factor theory of discrimination, which provides for liability under Title VII, even where other factors motivated an adverse employment action. There's voluminous record evidence showing discriminatory animus by the key decision makers in this case, Johnston and Iwanak, and that is enough to get past summary judgment under a motivating factor theory.

[00:09:52] Speaker 07:
Second, the district court committed fundamental errors in analyzing the but-for causation theory of liability. Specifically, the court held Tarquini to an impermissibly high standard and failed to recognize what this court said in Ponce, that there could be multiple but-for causes of a given event. And the court wrongly discounted evidence of discrimination as isolated and occurring a significant time before Tarquini's termination. The record flatly contradicts that reasoning, and this court should reverse. I'd like to start, Your Honors, with the motivating factor theory of discrimination.

[00:10:26] Speaker 07:
The government's primary argument is that Tarquini waived or forfeited that argument by failing to present it to the district court. I think there are a few reasons why this court should reject that waiver or forfeiture argument. The first is that if you look at Tarquini's summary judgment briefing, she specifically invoked discrimination as an animating rationale for the adverse employment action. That's a JA 567 to 570.

[00:10:50] Speaker 07:
And in her declaration as part of summary judgment at JA 654, Tarquini explained that it was due to discrimination and bias against her on account of her race and her sex, among other things, that the Navy terminated her employment. Now, I think that's enough at summary judgment by a pro se litigant to make the district court aware of the causal connection between discrimination and an adverse employment action. If you look at the statute, subsection A says that when discrimination or waste or sex is a cause of an adverse employment action, that's an unlawful employment practice.

[00:11:26] Speaker 07:
But subsection M says that it is an unlawful employment practice when a motivating factor plays a part in an adverse employment action. Well, what the statute is saying is that to meet that causation element, you can advance a motivating factor theory of liability. So the district court was aware that Tarquini was arguing a causal connection, and a motivating factor theory of liability is a lesser evidentiary burden to show liability under Title VII. By arguing pretext in her summary judgment briefing, Tarquini necessarily advanced the theory that race or sex was a motivating factor.

[00:12:01] Speaker 06:
That's an argument that Any summary judgment motion will encompass both theories.

[00:12:12] Speaker 07:
I think under ordinary circumstances, Your Honor, when a litigant is saying race or sex caused my adverse employment action, caused my firing, a subsidiary argument there is that race or sex was a motivating factor. It contributed to the firing. Now, but for causation standard theory, and this is what the Supreme Court says in Bostick, it's a greater evidentiary showing, and it can get you additional relief down the line at trial.

[00:12:37] Speaker 06:
I mean, maybe as a matter of spitballing, but it's just hard to reconcile with how Title VII cases are litigated. These are very distinct theories of liability.

[00:12:52] Speaker 07:
This court said in fog, Your Honor, that a plaintiff pursuing a Title VII claim can, of course, use evidence of pretext and the McDonnell-Douglas framework to show that race or sex or any other impermissible characteristic was one motivating factor contributing to an adverse employment action. So I think in practice, what you're asking at summary judgment is, can the plaintiff, could a reasonable fact finder find liability under Title VII? And the statute clearly articulates that a motivating factor theory of discrimination gets you to liability.

[00:13:26] Speaker 07:
It's just a lesser evidentiary showing than a but-for cause of liability.

[00:13:33] Speaker 03:
I'm going to assume for the moment that you're not saying that any litigant, counseled or not, who raises a but-for claim under subsection A should be presumed necessarily to have raised a motivating factor claim under M. I take you to be saying that we have a pro se litigant here and that the district court, therefore, looking at this evidence in this case, should also analyze motivating factor. Is that correct or no?

[00:14:01] Speaker 07:
That's right, Your Honor. I don't think the court needs to articulate a hard and fast rule that applies to every litigant. And I think Your Honor is exactly right. We have a pro se litigant. She put forward in her summary judgment briefing that discrimination was a cause of her adverse employment action. She specifically invoked discrimination multiple times in the record and summary judgment. And she didn't expressly disclaim a motivating factor theory of liability. In fact, she didn't clearly pursue either route of liability.

[00:14:29] Speaker 03:
She just argued discrimination was a cause and, you know, or an element was behind the action. But I'm trying to understand why the district court would have had to go through that in this case precisely because she's pro se. It seems to me the big benefit of finding of a motivating factor, at least, And not if but for cause is not supported, which is what the district court thought, why would this district court in this case go on to say, but discrimination was a motivating factor where there's no attorney's fees that can be won.

[00:15:08] Speaker 03:
There's, you know, any declaratory relief would increase. not sort of clean off her record in regard to the reliance on the inspector general report. There's no back pay or compensatory punitive damages available under a pure motivating factor analysis. So why would it be incumbent on the district court in a case like this to also consider that alternative argument?

[00:15:39] Speaker 07:
Well, Tarquini asked for various forms of relief in her initial complaint. This is a J19-20, including appropriate, injunctive, and equitable relief. And it's possible that even under a motivating factor theory, she could get, A, a declaration that she was the subject of unlawful employment discrimination. B, she could get some form of injunctive relief. It might look like training for her former supervisors. It might look like a letter explaining what happened to future employers, there may be certain kinds of relief available to even a pro se litigant and even on this complaint and in this case under the specific relief that Tarquini asked for.

[00:16:19] Speaker 07:
And I think this question gets to the purpose of subsection F. What the Supreme Court said in Pricewaterhouse is that once you can show that the employer would have taken the adverse employment action anyway, that's a complete defense to liability. And Congress undercuts Pricewaterhouse and says no in 1991. It adds subsection M.

[00:16:41] Speaker 07:
And it says illegal employment discrimination is a problem, which is why even where race or sex or another impermissible characteristic plays even a small part in an adverse employment action, that is illegal under Title VII. And that's part of the purpose of the motivating factor theory of discrimination, to vindicate a plaintiff's rights under Title VII and to ensure that workplaces, especially workplaces controlled by the United States government, are free from illegal discriminations.

[00:17:08] Speaker 03:
On the buffer causation, The district court said that there's just there's not enough evidence to send to a jury on that. And in particular, that there really isn't a nexus between the kinds of sex based comments and differential treatment based on race and sex that Mr. Queenie puts in evidence. And what's your response? You argue that that but for causation should have been sent to the jury.

[00:17:41] Speaker 07:
I think there are a few fundamental errors with the district court's reasoning as to but for causation. And the first two relate to how the district court characterized the evidence in this case. The district court didn't catalog or explain the evidence, the voluminous evidence of discriminatory animus by the two decision makers. And instead, it characterized the remarks as, quote unquote, isolated and occurring a significant time before the adverse employment action. I think the record directly contradicts both of those rationales. First of all, the evidence was voluminous.

[00:18:13] Speaker 07:
It showed discriminatory comments and conduct occurring throughout the time of Tarquini's employment up and through November of 2015.

[00:18:22] Speaker 07:
Comments relating to her being bossy, emotional in the workplace, comments by both supervisors asking Tarquini whether it was, quote unquote, that time of month, comments relating to her weight and her appearance, making Tarquini apologize to her white counterparts, comments that Tarquini was bossy at a company picnic. I mean, these are comments that are occurring throughout the time of Tarquini's employment and are not isolated or stray remarks.

[00:18:50] Speaker 03:
I thought that in a way the most clearly sex-based were the that time of month comments, which then in context relate to the bossy and emotional comments. Did she press those before the district court? Because it struck me the district court did not mention that. At least I'm not recalling the district court having mentioned those comments in its opinion.

[00:19:15] Speaker 07:
You're right, Judge Peller, that the district court didn't mention the comments, but Tarquini did put the comments in her summary judgment briefing and explained to the district court that she was subject to sex and race-based discrimination, referring to the comments in conduct that she then elaborates on in her declaration in support of summary judgment. So the district court is on notice that all of these comments and conduct happened during the course of her employment. She's referencing that in her summary judgment briefing and in the declaration. But you're right, the district court does not catalog those comments or acknowledge that they happened.

[00:19:47] Speaker 07:
It characterizes them as isolated, which they were not. And it characterizes that as occurring a significant time before the adverse employment action. But there are comments and conduct occurring up through November of 2015. For instance, J627, in October of 2015, a month before the termination, Johnston told Tarquini she was too bossy at a company picnic. between April 2014 to November 2015, the same month when Tarquini is terminated. Her bosses treated her as inferior to her white counterparts when she had done nothing wrong and treated her as subservient.

[00:20:22] Speaker 07:
That's J-6-0-6.

[00:20:23] Speaker 03:
Do you have any more specifics on that?

[00:20:27] Speaker 07:
There are more specifics in the declaration, Your Honor. I mean, there are at J606 through November 2015, quote, I was frequently instructed by Mr. Johnston to alter my tone, appear less emotional in conversations with others, and to avoid acting as if it was that time of month. That's through November of 2015.

[00:20:47] Speaker 07:
So if we're talking about the district court's analysis under the but-for causation theory of a nexus between the discriminatory comments and the adverse employment action, the two primary bases, the district court and vote, isolated and occurring a significant time before the adverse employment action, don't stand up to the record evidence summary judgment.

[00:21:06] Speaker 03:
And do Mr. Iwanek or Mr. Johnson deny ever having said anything about that time of month or ever having described her as too emotional or too bossy?

[00:21:18] Speaker 07:
They do. In their deposition transcripts, they deny having made the comments. Now, of course, the court views the evidence in summary judgment in a light most favorable to Tarquini, and that's a classic question for the fact finder, whether those comments were actually made, whether they engaged in that kind of conduct, and who's to be believed.

[00:21:36] Speaker 03:
You don't have citations where they deny that, do you?

[00:21:39] Speaker 07:
I don't, Your Honor, but I can address them on rebuttal where they deny doing that.

[00:21:44] Speaker 07:
I think the other error to highlight as part of the but-for causation analysis is the district court's conclusion that none of the comparators had supervised... Well, the district court said two of the comparators had the same supervisors as Tarquini, but it ignored the evidence as to Gary Holzapfel. And I think that's relevant comparator evidence and summary judgment. Tarquini alleges that Holzapel engaged in misconduct and covered up sexual assault allegations in the workplace, yet was not fired. The district court appears to assume that Awanek and Johnston didn't supervise Gary Holzapel, but JA206 has the organization chart for MCCS, and it shows that Holzapel was directly under their supervision.

[00:22:27] Speaker 07:
So that's just another error looking at the factual record that appears to have animated the district court's nexus analysis under but for causation.

[00:22:36] Speaker 05:
Do you have anything to add to what Ms. Tarkini said about why a reasonable fact finder could find that the decision makers didn't believe the inspector general report?

[00:22:56] Speaker 07:
As far as I can tell from looking at the record runner, I don't have anything to add to Mr. Quinney's argument about that. But I think what's important to understand is that in a motivating factor theory of discrimination, it is not on a Title VII plaintiff to disclaim or disprove the employer's non-discriminatory rationale for an adverse employment action.

[00:23:16] Speaker 05:
I'm talking about with respect to the but-for argument or the pretext argument.

[00:23:24] Speaker 07:
I would say the same thing is true even in a but-for case, Your Honor. I mean, this court acknowledged in Potts, the Supreme Court said in Bostick, there could be multiple but-for causes of a given event. And this court said in Holcomb, a Title VII plaintiff has multiple routes to liability. One is disproving or casting doubt on an employer's non-discriminatory rationale. But a plaintiff can also offer other evidence of intentional discrimination. And it's entirely possible that there could be two but four causes of a termination.

[00:23:54] Speaker 07:
There could be a non-discriminatory reason that stems from an investigation or some report of wrongdoing. And race or sex or another impermissible consideration could also be a but four cause.

[00:24:06] Speaker 03:
I appreciate that as a description of the doctrine. But as applied in this case, I'm not sure that I...

[00:24:15] Speaker 03:
have at my fingertips the narrative of how both could be a but-for cause. If Ms. Tarquini had not been a Black woman, but this IG report had come out about that man's conduct, he would not have been fired. What evidence do we have that would raise a jury issue with respect to your more than one but-for cause approach?

[00:24:44] Speaker 07:
I think the record shows that there were a range of options available to the key decision makers in this case, and that the investigative report didn't inevitably lead to Tarquini's firing. And I think it's important to understand this because it really shows how race or sex can be a but-for cause.

[00:25:02] Speaker 07:
At JA207 and 221, that's the manual that announces the Navy's policy about first-time offenses, termination. There's a range of options for first-time offenses. It goes from reprimand on the one end of the spectrum to termination on the other. And the investigative report in this case— What page was that?

[00:25:19] Speaker 05:
I'm sorry.

[00:25:20] Speaker 07:
That was JA 207 to 221, Judge Wilkins. And the investigative report in this case did not recommend a specific action. At JA 1421, the report forwarded to Johnston and Iwanak, quote, for consideration and appropriate action. And if you turn to their explanations for why they fired Tarquini, they did not rely solely on that investigative report. What Awanek says in his declaration at J314 is that he read the investigative report very carefully, but did not terminate Tarquini based solely on the IG's conclusions.

[00:25:55] Speaker 07:
He said, quote, I made my own determinations based on the evidence the IG had collected, as well as my own knowledge of Mrs. Tarquini's actions. And at J2156, which is MCCS's letter in response to Tarquini's internal appeal to Colonel Boucher.

[00:26:12] Speaker 03:
You said 426?

[00:26:14] Speaker 07:
Sorry, this is JA 2156. I may have misspoken.

[00:26:17] Speaker 03:
No, no, I was. Go ahead.

[00:26:19] Speaker 07:
Awanak said he, quote, also considered his personal knowledge of Mrs. Torquini's actions in the previous year. So the record evidence doesn't show that the investigative report somehow bound Johnston and Awanak to firing Torquini. In fact, the report gave them a range of options that they could take in response to the findings that were substantiated by Saldana and Hodges. And if it were the case that Awanek and Johnston felt bound to terminate Tarquini based on the report, there would be no explanation for why they considered other factors besides the report in making that final determination.

[00:26:53] Speaker 07:
So I think that's what the record shows in terms of what the decision makers were thinking at the time they fired Tarquini. And then I think you add in the comparator evidence in the but-for analysis. And when you have a white male comparator, Gary Holzapfel, who is alleged to have been engaged in covering up sexual assault misconduct inside the workplace, supervised by the same key decision makers, and who isn't fired for conduct of a comparable seriousness, That's that's I think how you get to there's but for there's there's a fact finder could conclude that but for Tarquini's race or sex, she would not have been fired.

[00:27:31] Speaker 03:
You're not pointing to Cheryl Harkness as a comparator. I believe that Mr. Tarquini averse somewhere that she engaged in nepotism but faced no disciplinary action.

[00:27:44] Speaker 07:
Your Honor, the organizational chart, I think, is key there and the key decision makers with respect to Harkness. So that's why I focused on Gary Holzapfel.

[00:27:54] Speaker 07:
But, you know, I think Holzapfel is the best comparator, not necessarily the only comparator, just the one that I highlighted.

[00:27:59] Speaker 03:
Thank you. And did you also reserve time for rebuttal?

[00:28:03] Speaker 07:
I did.

[00:28:03] Speaker 03:
All right. We'll hear now from Mr. Sampat.

[00:28:09] Speaker 04:
Good morning, Your Honors. May it please the Court, Chairman Sampat, on behalf of the Secretary of the Navy.

[00:28:14] Speaker 04:
Congress thought nepotism was an evil unto itself, and it codified that evil in statute.

[00:28:20] Speaker 04:
The standard of ethical conduct is governed by federal regulations.

[00:28:25] Speaker 04:
Ms. Tarkini, as the chief of human resources, decided to upend that theory and upend civil service and offended the very notion of it by engaging in nepotism and influencing the hiring of her husband and her brother.

[00:28:43] Speaker 04:
Her conduct was severe enough that it warranted the Office of the Inspector General to investigate the allegations. It substantiated those allegations. Then Mr. Johnston and Mr. Iwanek, as Ms. Tarquini's supervisors, reviewed the report, decided to terminate her because she was the chief of HR.

[00:29:03] Speaker 04:
If that is not a legitimate, non-discriminatory reason for her termination, I don't know what is.

[00:29:10] Speaker 03:
What's your response to what Ms. Tarquini said at the podium today that she didn't have access to full materials until 10 years later and that looking at them now, it appears that someone else was responsible?

[00:29:23] Speaker 04:
So, Your Honor, the District Court rejected those theories based on the facts in the record that showed that Ms. Turchini had actually reviewed the reports and had information at her fingertips. Obviously, the record, I will admit, is not 100% clear with the volume of it, but she did testify, and it's her own statements that say she did review the report.

[00:29:49] Speaker 04:
I'll just start with the motivating factor theory very quickly. I know my friend on the other side, my amicus friend on the other side, advanced that theory. I will say it is waived, despite the fact that Mr. Harkini proceeded pro se below. I think to say that... Forfeited, not waived. Oh, sorry. Excuse me. Forfeited. Yes. I apologize, Your Honor.

[00:30:12] Speaker 04:
It is forfeited, given this court's decision in Ponce that puts the burden on an employee to raise that theory at summary judgment. She had an obligation to raise it. She didn't, and it is therefore waived.

[00:30:28] Speaker 03:
We have, not in this identical context, but in various contexts, we have case law that it is the court's responsibility, even when something is not raised, and particularly by pro se counsel, when they're ruling on the merits, the ultimate merits. I mean, we have cases about the local rule seven, where things can be motions can be granted as conceded. And we said, no, no, no, that's a dispositive motion. The obligation of the court is to get the law right.

[00:31:01] Speaker 03:
Why would we not apply a similar analysis here?

[00:31:05] Speaker 04:
So I'm going to quote the Second Circuit in Davis v. Kelly. I think it aptly points out exactly why. A court need not act as an advocate for pro se litigants. To impose that obligation on district courts to think of theories that a pro se plaintiff may advance would put the district court in the advocacy bucket and not as an independent arbiter of the case before it.

[00:31:31] Speaker 04:
The courts below have said numerous times that pro se plaintiffs can waive and forfeit arguments if they're not raised.

[00:31:41] Speaker 04:
I don't see much difference here. And there was nothing in the summary judgment motion that would have put the district court on notice that Ms. Tarkini was indeed advancing a motivating factor theory.

[00:31:56] Speaker 03:
But we have, for example, in one of the cases, Winston and Strong versus McLean, which is at 843 F. Third 503.

[00:32:07] Speaker 03:
And if you look at 506 to 507, we hold after the district court says local roll seven five.

[00:32:16] Speaker 03:
applies, which is that a motion was not contested. So that's a forfeiture, basically. A party has forfeited. And we said, well, you know, no, that the court may only grant summary judgment if there's no genuine issue of material fact in dispute and the movement is entitled to judgment as a matter of law. And A panel of this court said these standards cannot be satisfied if the district court simply grants judgment as conceded or as forfeited when the non-moving party fails to meet a deadline.

[00:32:53] Speaker 03:
So why doesn't similar analysis apply here to a pro se who hasn't articulated as such? I mean, here she's given the court more to work with than in the typical case of forfeiture. The material is, as you heard Mr. Harris explain, it's really the same bucket of evidence. She's saying discrimination.

[00:33:18] Speaker 03:
My my firing was affected by discrimination. Why isn't that something that she raised? She didn't say I'm only raising for cause, but but I'm challenging discrimination.

[00:33:29] Speaker 04:
So, Your Honor, in her opposition to summary judgment, understanding that she raised that her termination was motivated by animus, but I think Judge Katz has hit the nail on the head during his colloquy with Mr. Harris, which is that inviting any other rule would effectively turn every opposition to summary judgment as one that court has to consider all the theories and would become

[00:33:54] Speaker 03:
This is a theory that is nested, you know, right within any theory of discrimination in employment. Was it a but-for cause? Was it a motivating factor? I mean, it's not like, oh, does she also have an equal protection claim or does she also have...

[00:34:12] Speaker 03:
you know, a tort claim. It's pretty, this is a uniquely proximate and, you know, family, in the family of the claim that she, I mean, in fact, maybe this is the main claim that she brought because she doesn't really parse it out separately.

[00:34:30] Speaker 04:
So what I would say, Your Honor, though, is, you know, basic party presentation principles still have to apply.

[00:34:37] Speaker 03:
And she presented evidence of discrimination.

[00:34:42] Speaker 04:
She presented evidence of discrimination and has really put all her eggs in the basket of the but-for theory, saying that determination is motivated by her membership in a protected class. She's fought the termination through her briefing in the district court through here. She's objected to the findings of the IG report. There's nothing in the record that the district court could have read to perceive Ms.

[00:35:12] Speaker 05:
Tarquini as even raising... At the administrative exhaustion stage, does the paperwork there...

[00:35:25] Speaker 05:
distinguish between but for and motivating factor, mixed motive, like in the paperwork that someone has given as far as exhausting the claim.

[00:35:38] Speaker 04:
So, Your Honor, are you talking about like the formal EEO complaint?

[00:35:42] Speaker 04:
I have it, but I don't recall seeing a field or anything of that sort that would say, are you proceeding under before or are you proceeding under mixed motive? And again, we're not disputing that claim. A plaintiff can raise both.

[00:35:57] Speaker 05:
The reason I ask is that it seems to me that if when you're exhausting, there is no requirement to kind of exhaust both or to bring both to the attention at that level.

[00:36:19] Speaker 05:
Doesn't that kind of cut against your argument? Because there's no way to know whether she exhausted both theories and to the extent that The EEOC or whoever drafts those documents thinks it's relevant. They don't really think that it's relevant to direct the complainant to kind of distinguish between the two theories.

[00:36:57] Speaker 04:
Your Honor, I would just say Ponce says that an individual has the obligation to raise it, at least as a judge.

[00:37:03] Speaker 03:
That's what this court... That's a counsel. So you would hold her to the counsel standard.

[00:37:11] Speaker 03:
If we were to agree with Amicus that in ruling for summary judgment against a pro se plaintiff, the district court in an employment discrimination case should consider both a but-for and a motivating factor analysis, why shouldn't we remand to the district court to

[00:37:32] Speaker 04:
to do the analysis that that the district court didn't do um because your honor there's there's no evidence that no disputed evidence that miss tartini has pointed to that shows the nexus anyway there still needs to be a factual connection between the adverse action which is here the termination and her her membership in a protected class and she has not presented any evidence that would that would show that it was all protectual or that you Her membership in a motivated... Sorry. Her membership in a protected class is the reason for the termination itself.

[00:38:04] Speaker 03:
A reason.

[00:38:05] Speaker 04:
A reason. A reason.

[00:38:06] Speaker 03:
Yeah. So Mr. Harris talked about the...

[00:38:13] Speaker 03:
range of statements going on over a long period of time that a reasonable jury might find events, attitude of sex and or race discrimination, even if you think the IG report was about poor cause.

[00:38:33] Speaker 03:
How do you exclude that attitude toward this employee as a motivating factor. And I guess I would add in there that comparators, we have identification of people. I think that the comparators in this case, maybe what's relevant is who is sort of a middle level manager? Not are you under the exact same people, but people have a responsibility. I mean, one of the things that was said when Ms.

[00:39:04] Speaker 03:
Tarkini was, you know, in defense of terminating her was, well, she was an HR person. She had to be exemplary. But then you have people in...

[00:39:14] Speaker 03:
you know, similarly important positions negligently causing a loss to the Navy of $300,000 or causing $175,000 merchandise deficiency or Mr. Holzapfel, you know, engaging in unlawful conduct or suppressing correction thereof.

[00:39:38] Speaker 03:
Why are those not also circumstantial evidence that this employee was treated worse?

[00:39:44] Speaker 04:
So, Your Honor, this court in Joyner said that comparator evidence needs to be nearly identical, and none of the individuals that...

[00:39:52] Speaker 03:
for materially nearly identical. And what I'm saying is it doesn't have to be this. I mean, there's only one presumably position like the one that the plaintiff here held. And so you have to look at other kind of people with some responsibility over a function. So maybe it is nearly identical if somebody responsible for a function of, you know, inventory of merchandise causes a loss of $175,000 of merchandise.

[00:40:24] Speaker 03:
Maybe that is comparable to somebody in HR doing something in hiring that's considered highly irregular. I,

[00:40:31] Speaker 04:
I would say it's not, Your Honor, because, again, Ms. Tarkini is uniquely positioned to be in a place where she could influence hiring and firing decisions. That's the position that she's using, and it's not comparable to someone that has oversight over funds and things like that. Mr. Harris pointing to Mr. Halsapel, again, very different circumstances, different position, where Where they're, of course, you know, assuming that those allegations and everything are true about Mr. Holzapfel committing misconduct.

[00:41:05] Speaker 03:
They are incredibly different than what Mr. Tell us what give me some some more granularity about what are the accusations against Mr. Holzapfel? Why in his position, not comparable in seriousness?

[00:41:17] Speaker 04:
So my understanding about the allegations of Mr. Holzapfel were that... The evidence against him. Yeah, was that he had used his position. He had not investigated sexual harassment. I don't recall in the record allegations about sexual assault. I know my friend mentioned that, but I don't recall that in the record. I could be wrong.

[00:41:36] Speaker 04:
but that he didn't properly investigate things. He may have mismanaged some funds. But again, I would point to the fact that Mr. Archini was the chief of HR.

[00:41:46] Speaker 03:
And his position?

[00:41:48] Speaker 04:
If your honor will give me one moment, I'll just look at the... He was the chief of MNFP? I think it was something in funds appropriation. Yeah.

[00:42:02] Speaker 04:
Um, but your honor, I think, I think we're talking about a night and day difference between Mr. Kinney and Mr. Hall's hotball here.

[00:42:09] Speaker 06:
What about the statements?

[00:42:12] Speaker 06:
Um, from time of the month and all that kind of stuff.

[00:42:16] Speaker 06:
This seems like a kind of textbook case where the government has a really good reason to for doing what it's doing. And plaintiff is not going to win on but four. But there's at least some evidence that the bad motive is in the air.

[00:42:39] Speaker 04:
This court has said that stray remarks aren't enough. And I think we need to be careful about imposing what almost would be a hostile work environment theory into... But it's not.

[00:42:49] Speaker 03:
There's an action here. The hostile work environment theory, the comments are creating the adverse action. Here, we're just talking about what is the orientation of these supervisors toward this employee. And To say stray remarks, I mean, it wasn't just one, you know, sweetheart. You know, this was, at least as she would testify to, a litany of some really pretty, you know, sex-based and derogatory comments.

[00:43:20] Speaker 04:
I would say, Your Honor, I think the comments about this time of month obviously are sex-based. I'm not disputing.

[00:43:25] Speaker 03:
And not to be taken lightly. No. I mean, very undermining.

[00:43:30] Speaker 04:
Your Honor, assuming those allegations are true, we obviously would say that we don't stand by them. They are inappropriate in the workplace, no question about it. But the question is whether or not Ms. Tarkini can point to any evidence that would connect those comments to the termination. And she hasn't. And that's the point. is that even under a mixed motive theory, she still needs some factual hook.

[00:43:54] Speaker 06:
Sorry, none of those comments is from the direct supervisor or the second line supervisor.

[00:44:02] Speaker 04:
They were. I think there were some comments from Mr. Johnson, some comments from Mr. Iwanek. I don't think that's enough. I would say for summary judgment, that's not enough. This court has said that it needs to be more than just a dispute. It has to be that a reasonable jury can infer discrimination. And just based on those comments, I don't think that a reasonable jury could infer, given the record. So...

[00:44:33] Speaker 05:
When you say that a reasonable jury could not infer discrimination, you mean infer discrimination with respect to the challenged employment action, the challenged adverse action.

[00:44:46] Speaker 05:
That's what you're saying the standard is?

[00:44:49] Speaker 04:
Yes, to the determination.

[00:44:51] Speaker 05:
So if someone...

[00:45:01] Speaker 05:
Hypothetically, if the supervisor constantly refers to an African-American with the N-word, including days before terminating the person, but then terminates them based on, let's say, an inspector general report that they committed some wrongdoing, You would say that in that case, there's not enough to go to the jury, even on a mixed motive theory, that racial discrimination had anything to do with determination?

[00:45:41] Speaker 04:
I wouldn't say that, Your Honor, only because I know this court's decision and IEC says that one use can be enough. For a hostile work environment claim, I understand it's a different context and different claim. But I think there we have enough to have a causal connection.

[00:45:58] Speaker 05:
I'm sorry, which case? Because the N-word was used is what makes it enough?

[00:46:05] Speaker 04:
I believe the case is IEC AYISSI. Your Honor, that's what the panel said.

[00:46:13] Speaker 05:
Well, that's talking about house to work environment. So let's say the N-word is not used, but it's just... you know, you people and a lot of derogatory things that a reasonable jury could say, clearly show a hostility or animus towards someone because of their race, that there's various of those statements that are made, including up to about a week before the termination.

[00:46:45] Speaker 05:
And the termination is based on an inspector general report that found some other unrelated wrongdoing. So you're saying, so no N-word, but evidence that could be fairly construed as displaying racial animus.

[00:47:06] Speaker 05:
So you're saying in that case, there wouldn't be enough to go to the jury?

[00:47:10] Speaker 04:
I think there could be. And I think that's this court's decision in Morris where there were more racially explicit comments being made. And then the court reversed a grant of summary judgment and sent it back. But again, I think the issue, the key there was that this court saying there was a factual connection or there was evidence in the record that that connected the comments to the actual adverse action at issue.

[00:47:36] Speaker 03:
And that's factual connection. I just read Morris yesterday. But the factual connection you're thinking of?

[00:47:43] Speaker 04:
So I believe there were different categories of evidence in Morris. And if Your Honor will give me, it was the multiple statements. And I'll just quote the court. It was the number and tenor of the racially charged comments that added the connection.

[00:48:02] Speaker 03:
I'm not sure I see a difference there, though. I mean, there's a number and tenor of remarks here that are, you know, gender explicit. There they were race explicit. There were derogatory statements about white girls or white boys by an African-American manager, and that was held to be enough of a link in that context, right?

[00:48:29] Speaker 04:
Yes, Your Honor, but again, it was a connection of, you know, if I remember Morris also correctly, there was comments of replacing certain people and not giving Morris an opportunity to apply or not putting her in that position.

[00:48:44] Speaker 03:
Okay, that was not what you said.

[00:48:46] Speaker 04:
Yeah, sorry. So that is the distinction here is, again, what juries interpret, they look at facts. That's what the standard is.

[00:48:59] Speaker 04:
So, and Ms. Tarkini is missing that.

[00:49:03] Speaker 04:
Thank you. Thank you, Your Honor.

[00:49:06] Speaker 03:
And if you want, you don't have to take rebuttal time, but if you want it, you're welcome to a minute.

[00:49:10] Speaker 02:
I'm glad to respond to you, but I will try to be as quick as I can. So the government said it again, that the termination was based on hire, which differs, again, from the termination letter from Colonel Boucher, and Mr. Iwanek, which both state employment. And to your point, you said, is there a reason that, well, something around the government had justified reasons. But I have counted six different notifications of charges, or six different changing reasons, I should say.

[00:49:43] Speaker 02:
Johnston's proposal said, facilitated the hire. That's at JA 1386. Iwanek said, regarding the employment misconduct, that's at JA 1029.

[00:49:54] Speaker 02:
Then Iwanek said it was based on poor performance and refusal to take responsibility, which isn't in any of the documents, and that's in JA303. Then Iwanek told Boucher that it was for poor performance, inability to take responsibility, poor leadership and management abilities. That's at JA307. That's changing again. The fifth one was Jody Devine. The attorney said that it was based on inappropriately involvement in employment. That's at JA2170. And then the sixth time was Jody Devine saying the termination was based for involvement in a process that she admitted was within policy.

[00:50:32] Speaker 02:
And that was at JA2175. That is six different times that the charges have changed.

[00:50:39] Speaker 03:
I have a question about the theory that we probed with Mr. Harris and Mr. Sompat.

[00:50:47] Speaker 03:
You now know from the brief that Amicus has filed in support of your case that there's these two different theories, but for causation and motivation.