[00:00:02] Speaker 01:
Our first case today is 2017-2356 Sharp v. DOJ.

[00:00:07] Speaker 01:
Mr. Burns, please proceed.

[00:00:11] Speaker 01:
Yes, Your Honor.

[00:00:13] Speaker 02:
Good morning.

[00:00:20] Speaker 02:
May it please the Court, I think the briefs in this case outline the evidentiary issues that we bring to the Court to raise the overall concern that the

[00:00:32] Speaker 03:
ALJ's rulings in the underlying case were not supported by substantial evidence.

[00:00:37] Speaker 03:
Now, we know that this court is reluctant to disturb evidentiary rulings, but in this particular case, the number of rulings that go to the core of the issues of discrimination under the USERRA are significant.

[00:00:52] Speaker 03:
As we pointed out in our brief, the reason I'm not going to re-urgitate the brief, I want to point out why they're significant.

[00:00:59] Speaker 03:
As the opinion below expresses, Special Agent in Charge Sherman, when he was talking about his selection process, the first time he talked about why he made those selections was at his hearing.

[00:01:11] Speaker 03:
We had argued below, and it's in the court opinion, that the agency is acknowledged to raise no affirmative defenses to the issue of usera discrimination in this case.

[00:01:21] Speaker 03:
It simply litigated on the merits as to whether or not the conduct in denying Mr. Sharp promotions, in particular in this case,

[00:01:28] Speaker 03:
amounted to a form of discrimination.

[00:01:32] Speaker 03:
And the significance of that is that because the agency was not forced to provide information in advance, it was relying upon testimony at the hearing from Mr. Sherman that explained for the first time why he had made his decisions.

[00:01:47] Speaker 03:
As the record below showed, and as we note in our brief, special agents in charge when selecting individuals aren't required to do comparative analysis.

[00:01:56] Speaker 03:
aren't inquired to maintain notes, aren't inquired to interview people.

[00:01:59] Speaker 03:
They simply make a recommendation to the career board for the Drug Enforcement Administration, which in virtually every case, except when there's a transfer coming in from overseas or a hardship, agrees to the selection decided by what they call the special agent in charge or SAC, except when, in isolated cases, that individual has usually been chosen for another position.

[00:02:19] Speaker 05:
Can I ask you a procedural question?

[00:02:22] Speaker 05:
And I should know the answer to this by now.

[00:02:25] Speaker 05:
But did you get an opportunity to depose Mr. Sherman before?

[00:02:30] Speaker 03:
Yes, we did.

[00:02:31] Speaker 03:
Yes, we did.

[00:02:32] Speaker 05:
And did you ask him at the deposition questions about the Tversky email?

[00:02:41] Speaker 03:
The Tversky, yes, we did.

[00:02:43] Speaker 05:
And do we have the record of that?

[00:02:47] Speaker 03:
We do not have the record of that because he said

[00:02:49] Speaker 03:
He said he was consistent with his testimony that he said that that was his personal opinion, and that he took no action against him because he believed the email was his personal opinion.

[00:02:58] Speaker 04:
When you say his personal opinion, you mean Tomaski's personal opinion?

[00:03:01] Speaker 03:
Mr. Tomaski's.

[00:03:01] Speaker 03:
And I might add, and I want to... Well, wait.

[00:03:06] Speaker 01:
So we don't have the... Was it part of the record below for the AJ when AJ was making the decision?

[00:03:12] Speaker 03:
Yes.

[00:03:12] Speaker 03:
She denied the exhibit and she denied any testimony.

[00:03:15] Speaker 03:
On the exhibit.

[00:03:16] Speaker 01:
I understand that she denied the exhibit, i.e.

[00:03:19] Speaker 01:
the email and the testimony.

[00:03:21] Speaker 01:
So entered into the record, for example, wasn't his deposition testimony about the email.

[00:03:26] Speaker 01:
That was denied.

[00:03:27] Speaker 01:
That was denied as well.

[00:03:30] Speaker 01:
So it wasn't, it didn't end up being part of the record below at all.

[00:03:36] Speaker 03:
Well, except to the extent that the conversation was literally recorded before the ALJ and a proffer was made as to what he would say.

[00:03:43] Speaker 03:
The email was basically one line, and it's recorded in our appendix, and it's cited in the appendix in the exhibit of exactly what the terminology was.

[00:03:53] Speaker 03:
She would not allow us to enter it.

[00:03:55] Speaker 05:
One of the reasons that I guess I'm focused on this is that it seems to me on its face a little bit surprising that

[00:04:03] Speaker 05:
If the following happened, this would be a little bit surprising, which is you're trying to lay a foundation for the relevance of the Tomaski email, and you're precluded from asking the questions to establish that foundation.

[00:04:18] Speaker 05:
But now you're telling me that there was deposition testimony, which perhaps you could have said, dear Administrative Judge,

[00:04:30] Speaker 05:
Here's the foundation in the earlier deposition testimony.

[00:04:34] Speaker 03:
No, because all he did in his deposition was he regurgitated what he said at the hearing, which is he said.

[00:04:39] Speaker 03:
And at that point, we were trying to call.

[00:04:41] Speaker 03:
Which came first?

[00:04:42] Speaker 03:
Deposition.

[00:04:44] Speaker 03:
But we were trying to call.

[00:04:45] Speaker 03:
There's a little bit of a glitch here, because there's an argument about calling Mr. Tomaski.

[00:04:48] Speaker 03:
We had tried to call Mr. Tomaski, and as we referenced, the agency provided us the address for a shopping mall.

[00:04:55] Speaker 03:
One fact that doesn't come to the record that happened was that Mr. Tomaski died by suicide.

[00:05:00] Speaker 03:
So we weren't obviously able to call him.

[00:05:02] Speaker 05:
But in terms of Mr. Sherman's hostility to military or not, it's more what Mr. Sherman understood about the email than what Tomaski was thinking.

[00:05:15] Speaker 03:
Absolutely.

[00:05:16] Speaker 05:
So I guess I'm a little confused about

[00:05:21] Speaker 05:
the cutting off of inquiry to showmen to lay a foundation for the testimony?

[00:05:26] Speaker 03:
I was confused as well.

[00:05:27] Speaker 03:
I kept trying to raise it with the administrative law judge that there were a number of things she was saying that were simply incorrect.

[00:05:33] Speaker 03:
She said this was hearsay under the federal rules.

[00:05:35] Speaker 03:
Well, they don't apply.

[00:05:36] Speaker 03:
But even if they did, it's a statement of a party opponent that goes directly to the core of the discriminatory and retaliatory animus, which, since he makes the statement the day after they file their joint appeal,

[00:05:47] Speaker 03:
and he calls the military reservists a coward.

[00:05:49] Speaker 01:
Time out.

[00:05:51] Speaker 01:
I didn't appreciate this.

[00:05:53] Speaker 01:
You said they filed a joint appeal.

[00:05:55] Speaker 01:
Are you talking about Sorrell and Sharp?

[00:05:57] Speaker 03:
All of them did.

[00:05:58] Speaker 03:
It's in the record, Your Honor.

[00:06:00] Speaker 03:
It's also in the court opinion that they originally filed 16 reservists filed in action against the DEA arguing for class status.

[00:06:10] Speaker 03:
That was denied by the administrative law judge.

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and not appealed, there was an attempt to file a joint return, a joint claim for the San Diego Reservist.

[00:06:22] Speaker 04:
The judge... Did the same A.J.

[00:06:24] Speaker 04:
hear all of these claims for the different Reservists?

[00:06:26] Speaker 03:
No.

[00:06:26] Speaker 03:
No.

[00:06:27] Speaker 03:
But the way the MSPB operates is that the class certification is denied by the initial judge who heard that there was a special judge, the administrative law judge, the senior administrative law judge in San Francisco denied the class and the joint appeal, and then we had to file individual appeals for each of these Reservists.

[00:06:44] Speaker 01:
So time out.

[00:06:45] Speaker 01:
I just want to make sure I understand the facts.

[00:06:47] Speaker 01:
So did Sorel actually work in the same San Diego office with Mr. Sharp?

[00:06:53] Speaker 03:
Yes.

[00:06:54] Speaker 01:
OK.

[00:06:55] Speaker 01:
And the two of them were two of the 16 reservists that filed simultaneously?

[00:07:01] Speaker 01:
Yes.

[00:07:01] Speaker 01:
OK.

[00:07:02] Speaker 01:
And then you tried, or there was an attempt to then, after a class action was denied, to have a joint claim that would have included both Sorel and Sharp, and that was also denied?

[00:07:13] Speaker 03:
Yes.

[00:07:14] Speaker 01:
Okay.

[00:07:15] Speaker 01:
And Mr. Sherman is in the chain of command above both Mr. Sorrell and Mr. Sharpe.

[00:07:22] Speaker 03:
Yes, he's two levels, two to three levels up.

[00:07:24] Speaker 01:
And Tomaski is actually the deputy directly above Sorrell, and is he also above Sharpe?

[00:07:30] Speaker 01:
No.

[00:07:30] Speaker 01:
I'm trying to understand that.

[00:07:32] Speaker 03:
Tomaski is an assistant special agent in charge.

[00:07:34] Speaker 03:
Sorrells would have a group supervisor who would be a GS-14.

[00:07:37] Speaker 03:
That would be the supervisory positions that Mr. Sharpe was applying for.

[00:07:41] Speaker 03:
Then there would be

[00:07:42] Speaker 03:
his assistant special agent in charge, which would mean Mr. Tomaski.

[00:07:45] Speaker 03:
There were three or four special agents in charge in San Diego.

[00:07:49] Speaker 03:
They directly reported to Mr. Sherman.

[00:07:52] Speaker 01:
Okay.

[00:07:52] Speaker 01:
So Tomaski directly reported to Sherman.

[00:07:56] Speaker 01:
Was Tomaski in a chain where he was in charge of Mr. Sharpe or Mr. Sorrell?

[00:08:02] Speaker 03:
Yes.

[00:08:02] Speaker 03:
He was in charge of Mr. Sorrell's and he was also one of the officials relied upon on some of the applications for positions that Mr. Sherman made.

[00:08:10] Speaker 03:
determinations on because Mr. Sherman testified it's in the record that he relied on the comments from his assistant special agents in charge, which would have included Mr. Tomasky.

[00:08:18] Speaker 01:
Okay.

[00:08:19] Speaker 05:
So, um, now... I'm sorry, just... When you said Tomasky was on some of the information Sherman was using, are you referring to some of the information for Mr. Sharpe's applications?

[00:08:32] Speaker 03:
Yes.

[00:08:33] Speaker 03:
Yes.

[00:08:33] Speaker 03:
There's a reference in the record to one of the positions Mr. Sharpe applied to, that Mr. Tomasky was directly involved in making a decision on

[00:08:40] Speaker 03:
So I realize that it's a little complicated because the problem with our record, in all honesty, is that I am trying to tell you about events that I was precluded from presenting at the hearing.

[00:08:51] Speaker 03:
That's the whole point.

[00:08:52] Speaker 01:
I'm going to ask you some things that weren't part of the record, but you say now there was a deposition about this, so it's a matter of fact.

[00:08:59] Speaker 01:
And I assume that we could, if we requested the record, would we be able to get the deposition?

[00:09:04] Speaker 01:
Is that part of it?

[00:09:06] Speaker 01:
I don't know if it's not the record of the proceeding.

[00:09:08] Speaker 01:
Maybe it's the overall record of the case.

[00:09:11] Speaker 01:
But my question is, was there any question that Mr. Tomosky's email to Mr. Sorrell was absolutely about the USERRA complaint?

[00:09:24] Speaker 03:
Yes, it was sent the day after.

[00:09:26] Speaker 01:
No, no.

[00:09:26] Speaker 01:
But did Mr. Sherman

[00:09:28] Speaker 01:
in his deposition acknowledge, admit, or acquiesce in the idea that, yes, this email was about the USERRA complaint?

[00:09:34] Speaker 01:
Or did he hedge and say, I have no idea what this email is about?

[00:09:38] Speaker 03:
If I recall the deposition correctly, Mr. Sherman commented that it was sent the day after two reservists appeared on national television or in a national news article to discuss USERRA and anti-reservist attitudes in the DEA, and that Tomaski's email was a direct attack on Mr. Sorrell's

[00:09:58] Speaker 03:
who was one of those reservists in his immediate chain for bringing that complaint.

[00:10:03] Speaker 03:
And he called him a coward for doing so.

[00:10:06] Speaker 03:
I think the problem with it is, again, I am trying to tell.

[00:10:11] Speaker 01:
Well, one of my problems with it is if Mr. Sherman is, I supervise a number of people here.

[00:10:17] Speaker 01:
And if one of them emailed another one calling them a nasty name, I'd have them both in my office sitting down.

[00:10:23] Speaker 01:
And I'd say, this is not professional.

[00:10:25] Speaker 01:
This can't occur in my workplace.

[00:10:27] Speaker 01:
This is not appropriate.

[00:10:30] Speaker 01:
Are you suggesting to me that Mr. Sherman, in his deposition, suggested he didn't do any of that?

[00:10:35] Speaker 01:
He didn't do any of it.

[00:10:35] Speaker 01:
Instead, he said, well, that's just Tomosky's personal impression about this particular use of Sarah Klayman.

[00:10:41] Speaker 01:
And he's entitled to send through government email.

[00:10:44] Speaker 01:
This is not a private Gmail account.

[00:10:46] Speaker 01:
And he's in the chain of command above this person.

[00:10:49] Speaker 01:
So he is a supervisor.

[00:10:52] Speaker 01:
And in Sherman's view, there was no problem, at least according to the depositions, no problem with Mr. Tomaski expressing his personal views and hatred towards one of his subordinate employees.

[00:11:01] Speaker 03:
No, that was fine.

[00:11:02] Speaker 03:
That was his personal opinion.

[00:11:03] Speaker 03:
He didn't do anything about it.

[00:11:04] Speaker 01:
This is as close to Jack Nicholson and a few good men as I can imagine.

[00:11:08] Speaker 03:
Again, with all due respect, that was been my point.

[00:11:12] Speaker 03:
It's like, OK, it's one thing to lose an appeal because the administrative law judge took into account everything you said and said, I disagree with this.

[00:11:20] Speaker 03:
But the thumb was a bit on the scales for us here.

[00:11:23] Speaker 03:
Not only did Tomaski say this email, which Sherman not only addressed, he never attacked or never referred for it.

[00:11:30] Speaker 01:
Why don't you save the rest of your time for rebuttal and let us hear from you.

[00:11:40] Speaker ?:
OK, certainly.

[00:11:40] Speaker 00:
Thank you.

[00:11:41] Speaker 00:
Good morning, Your Honors, and may it please the court.

[00:11:43] Speaker 00:
I do want to start by acknowledging,

[00:11:46] Speaker 00:
pointing out for the court that some of at least Mr. Sherman's deposition testimony is included at joint appendix pages 1435.

[00:11:55] Speaker 00:
And it may not be all of the deposition testimony.

[00:12:02] Speaker 00:
So 1451.

[00:12:06] Speaker 01:
Is any of it about the Tomosky email?

[00:12:09] Speaker 00:
I did not see any references to the email or conversation, but that was

[00:12:16] Speaker 00:
not included in any of the Mr. Sharp's briefing at all.

[00:12:21] Speaker 00:
So that may be why it's not included.

[00:12:23] Speaker 05:
Can you address what seems strange to me, so I want to understand?

[00:12:34] Speaker 05:
It feels as though inquiry to Mr. Sherman about what he understood the Tomaski email to mean, what it might have indicated about his deputy Tomaski's attitude was cut off.

[00:12:53] Speaker 05:
And yet that's the very inquiry that would establish the facts of potential relevance to Mr. Sherman's mental state.

[00:13:03] Speaker 05:
and the potential foundation for actually then introducing the email, although Mr. Sherman's reaction to it is at least as important as the email itself.

[00:13:16] Speaker 05:
What am I misunderstanding either about the facts or the legal consequences of that?

[00:13:24] Speaker 00:
Well, first, Your Honor, there were pre-hearing submissions.

[00:13:32] Speaker 00:
before the administrative judge rendered her decision concerning relevance.

[00:13:37] Speaker 00:
And so at that time, the administrative judge was at least aware of why Mr. Sharp wanted to proffer this evidence.

[00:13:49] Speaker 05:
And in... Did the Sherman deposition take place before the pre-hearing conference at which the A.J.

[00:13:57] Speaker 05:
excluded the email?

[00:13:59] Speaker 00:
Yes, the deposition took place before the hearing and the pre-hearing submissions in which the government filed something, filed to exclude the email on relevance grounds.

[00:14:14] Speaker 00:
So arguments had been exchanged about the relevance of the email.

[00:14:18] Speaker 01:
But you didn't just exclude the email.

[00:14:19] Speaker 01:
Didn't you also move to exclude Mr. Sharpe's ability to ask Mr. Sherman any questions about the email?

[00:14:26] Speaker 00:
Yes, Your Honor, that is correct.

[00:14:28] Speaker 00:
But the administrative judge did not preclude Mr. Sharp from asking a general line of questions about Mr. Sherman's hostility towards reservists.

[00:14:36] Speaker 00:
And that is something that the Joint Appendix pages, page 2029, I believe, the administrative judge said, aren't we here to learn about whether Mr. Sherman has any hostility toward military reservists?

[00:14:55] Speaker 00:
So he wasn't precluded.

[00:14:56] Speaker 00:
from asking that particular line of questioning.

[00:14:59] Speaker 04:
Wouldn't that include, as an example, this email where apparently Sherman may have done nothing in response to this attack on Soros by Tomaski?

[00:15:12] Speaker 00:
The administrative judge was concerned about two things.

[00:15:16] Speaker 00:
One of them, you will see from the hearing testimony, is that she was concerned about Mr. Sharp attempting to litigate

[00:15:24] Speaker 00:
cases that involved other employees.

[00:15:27] Speaker 00:
So she was trying to sort of narrow it to making sure, this is the second point, Mr. Sharpe's burden here, which the central inquiry is whether Mr. Sherman exhibited any anti-military hostility towards him in making his decisions.

[00:15:43] Speaker 01:
Can you turn to page 32 of her opinion, please?

[00:15:47] Speaker 01:
Yes.

[00:15:47] Speaker 01:
And can you read out loud the last full sentence on the bottom of page 32?

[00:16:01] Speaker 00:
I also consider whether there was any hostility by Sherman towards the appellant's or others' military or USERRA activity.

[00:16:13] Speaker 01:
So she expressly made a fact finding that as part of her consideration about whether it was likely that Sherman was discriminating against this particular military man, she says, I also considered as part of that fact finding whether Mr. Sherman had hostility not just towards appellant,

[00:16:31] Speaker 01:
but towards other military or USERRA activity by others.

[00:16:36] Speaker 01:
So how is it that this email and Mr. Sherman's reaction to it doesn't go right to the heart of this fact finding?

[00:16:44] Speaker 01:
She said this was an important part of what she considered in her decision making.

[00:16:49] Speaker 01:
So your answer to Judge Chen was, oh, well, this should only be about Mr. Sharp.

[00:16:55] Speaker 01:
This shouldn't be about litigating other people's stuff.

[00:16:57] Speaker 01:
And I get that idea of how you'd want to limit a case.

[00:17:00] Speaker 01:
But here, she's saying she isn't just considering whether Sherman is discriminating against Sharp.

[00:17:05] Speaker 01:
She's considering whether Sherman has a hostility towards other military men or other USERRA filers.

[00:17:12] Speaker 01:
Wouldn't this email and questioning Mr. Sherman about this email go directly to that second part of her sentence?

[00:17:21] Speaker 00:
Well, Mr. Sharp, again, was not precluded from asking Mr. Sherman, have you

[00:17:28] Speaker 00:
How do you feel about other military reservists who work in your unit?

[00:17:31] Speaker 00:
I understand that this email may have provided evidence of that, but on its face, it doesn't.

[00:17:37] Speaker 00:
It doesn't say anything about this.

[00:17:39] Speaker 01:
I'm not just talking about the email, though.

[00:17:41] Speaker 01:
I'm talking about he was also precluded from asking Mr. Sherman, for example, how Mr. Sherman dealt with it.

[00:17:50] Speaker 01:
I'm a manager.

[00:17:50] Speaker 01:
You may be a manager.

[00:17:52] Speaker 01:
If you have one subordinate employee

[00:17:55] Speaker 01:
that says something completely inappropriate using his work email to another subordinate employee, and you're copied on it as a manager, you now have an obligation, it seems to me, to react to that and to say it's not appropriate to use your government email for these kinds of things.

[00:18:14] Speaker 01:
And it seems from the deposition testimony that Sherman didn't do anything like that, but that Mr. Sharp wasn't permitted to introduce that evidence in this hearing

[00:18:24] Speaker 01:
to show that Mr. Sherman might just go along with this sort of behavior.

[00:18:30] Speaker 01:
Maybe he shares in Tomosky's view, or at a minimum, he is uninterested in telling people they can't be hostile to others about USERRA activities.

[00:18:43] Speaker 00:
Well, there is nothing in the record that establishes that anything in the email concerns military reservists.

[00:18:49] Speaker 00:
It does use a derogatory term, coward, but it doesn't reference.

[00:18:54] Speaker 01:
And we don't know because it's not part of the record, but Mr. Sharpe's attorney suggested that in the deposition, it was Mr. Sherman that connected this email directly to the earlier, the day before USERA filing, and that it was Mr. Sherman's understanding, at least that's representation by counsel based on his deposition testimony,

[00:19:14] Speaker 01:
that this email was very much directed to and exclusively about the USERRA filing.

[00:19:20] Speaker 00:
That's not supported by the record, Your Honor.

[00:19:22] Speaker 00:
Well, correct, because they weren't allowed to introduce the evidence.

[00:19:24] Speaker 00:
No, I mean, as far as the deposition, he said that the deposition testimony is not included in the record.

[00:19:29] Speaker 00:
But to some extent, it is.

[00:19:32] Speaker 00:
And if that was the connection, if that was what he presented to the judge, it seems odd that it wouldn't be in his briefing.

[00:19:42] Speaker 00:
This is the first time that we're hearing

[00:19:44] Speaker 00:
Mr. Sherman being the one making the connection between the email and the fact that it concerned military reservists.

[00:19:53] Speaker 01:
I mean, but the most logical conclusion, not having gotten to question anybody about what this email was about, is that it was about the day before you, Sarah, filing.

[00:20:03] Speaker 01:
I mean, there isn't anything in this record that would suggest it was about something else.

[00:20:07] Speaker 01:
And if it was, wouldn't it have been great to clear that up?

[00:20:10] Speaker 01:
so that Mr. Sherman could say, oh, this had to do with the softball game last week where he walked off the field after striking out.

[00:20:17] Speaker 01:
Wouldn't it be great if Mr. Sherman could have cleared the record up so that it doesn't look like he didn't care at all that his direct subordinate was severely criticizing and using his government email to send inappropriate emails to another subordinate employee about his

[00:20:39] Speaker 01:
constitutional right to file a claim of discrimination?

[00:20:41] Speaker 00:
Well, again, Your Honor, it's not established that that's what the email is about.

[00:20:46] Speaker 00:
And yes, it would have been certainly made this case easier if it had been quite clear as to what the intention of the email was.

[00:20:56] Speaker 00:
However, Mr. Sharpe's burden here is to establish that his military service, not Mr. Sorrell or not any other employee,

[00:21:05] Speaker 00:
affected an agency's decision-making.

[00:21:09] Speaker 01:
But Mr. Sherman is what he alleges to be the pretty much critical linchpin decision-maker with regard to the 14 instances in which he sought promotion.

[00:21:18] Speaker 01:
And if he can demonstrate a pattern by Mr. Sherman of a hostility towards military people, either because of their military service or because they then use that military service to file complaints against him based on discrimination, either way, that's sort of thrown into the same basket

[00:21:35] Speaker 01:
that would be relevant, you know, wouldn't it, to show a pattern of hostility?

[00:21:39] Speaker 00:
It may have been relevant, but Mr. Sherman cannot establish prejudice because, again, he had the opportunity to explore a general line of questioning about Mr. Sherman's hostility and that he could not ask Mr. Sherman about how he felt about someone else's or his opinion

[00:22:02] Speaker 00:
about someone else's view.

[00:22:04] Speaker 01:
Okay, let's just suppose that there was a governor about which there was an awful picture in a yearbook.

[00:22:09] Speaker 01:
Just a hypothetical.

[00:22:11] Speaker 01:
And now let's just suppose that you tell me, well you can ask the governor, do you have any general prejudice against people of a certain race, ethnicity, or gender?

[00:22:20] Speaker 01:
And he says no.

[00:22:21] Speaker 01:
But you're not permitted to ask him about that photograph or introduce it into evidence.

[00:22:26] Speaker 01:
Seems like that would not be exactly

[00:22:30] Speaker 00:
giving somebody the full opportunity to vet the issue, doesn't it?

[00:22:34] Speaker 00:
I think it depends on what's in the photograph.

[00:22:36] Speaker 00:
If it's a photograph of something that has nothing at all to do with race, if it's a photograph of him in a park or something, then the judge, in looking at what she has in front of her, looks at it and says, OK, why are you proffering this evidence?

[00:22:51] Speaker 00:
I'm proffering it to prove that this person has some sort of bias.

[00:22:57] Speaker 00:
Bias about what?

[00:22:58] Speaker 00:
Bias about people of color.

[00:23:00] Speaker 00:
OK, there's nothing in this photo that demonstrates that at all.

[00:23:04] Speaker 00:
What is it that you're offering this to prove?

[00:23:07] Speaker 00:
And if looking at what she had before her, the pre-hearing submissions, what Mr. Sharp purported that the email stood for, and the email itself did not, in her opinion, rise to the level of being relevant to this case and relevant to the central inquiry of whether Mr. Sherman

[00:23:30] Speaker 00:
I'm sorry, Mr. Sharp could demonstrate that his military service was factored in.

[00:23:35] Speaker 05:
Part of what I keep thinking needs to be distinguished here is the exclusion of the line of questioning that would establish what Mr. Sherman understood about the email.

[00:23:49] Speaker 05:
And then, on the assumption that the line of questioning took place, there could be any number of different answers and any number of different

[00:23:58] Speaker 05:
weighing of relevance so that maybe a hostility to, you know, to USERRA claimants whom you believe to be making meritless claims might not be the same as a hostility to reservists.

[00:24:16] Speaker 05:
This is not a retaliation case, but we don't have any of that kind of

[00:24:21] Speaker 05:
nuanced consideration of the relevance of Mr. Sherman's understanding and reaction to the email because it was all excluded essentially at the front end.

[00:24:36] Speaker 00:
Yes, Your Honor.

[00:24:36] Speaker 00:
Again, after the judge considered why the evidence was being proffered, that is, I mean, so

[00:24:45] Speaker 00:
Perhaps not nuanced in the sense that she allowed Mr. Sherman to go in to testify about the email, but also because Mr. Tomosky was unavailable to offer exactly.

[00:24:57] Speaker 00:
He's the drafter of the email.

[00:24:59] Speaker 00:
Why?

[00:24:59] Speaker 05:
But again, it's really Mr. Sherman's understanding that is the first critical inquiry.

[00:25:10] Speaker 05:
If he understood, because he talked to Mr. Tomaski, that it really wasn't about promotion decisions of reservists, but about unjustified USERA claims, or was about something wholly immaterial to reserve status altogether, that might make the whole thing a non-event and non-prejudicial.

[00:25:37] Speaker 00:
But we just don't know, because the inquiry was cut off.

[00:25:42] Speaker 00:
We don't know how Mr. Sherman viewed the email, what his opinion of it was.

[00:25:48] Speaker 00:
What we do know, however, from Joint Appendix pages 2475 to 77, it reflects several comments that he made about Mr. Sharp, who he seemed to hold in somewhat high regard.

[00:26:04] Speaker 00:
recommended him numerous times to be included in his top three.

[00:26:08] Speaker 05:
He said he was a very good officer, but in each case of the promotion is not quite as good as the ones that he selected, right?

[00:26:15] Speaker 00:
Yes, Your Honor.

[00:26:17] Speaker 00:
And he talked about how he had to rapport with other Preservists in the office on those same pages.

[00:26:29] Speaker 00:
And with respect to

[00:26:33] Speaker 00:
You know, he talked about how other reservists had come to his office and talked to him.

[00:26:37] Speaker 00:
So there is evidence in the record that demonstrates Mr. Sherman's sort of own attitude towards reservists in their military service.

[00:26:50] Speaker 00:
I see that my time is almost up.

[00:26:54] Speaker 04:
Let's just assume that the court, that each one of us would have allowed this line of inquiry.

[00:27:02] Speaker 04:
in regards to the email and in regards to what Mr. Sherman's mental state was and any actions he did not take in light of that email.

[00:27:15] Speaker 04:
Is it your view that even though it was erroneous to exclude it, it still wouldn't have caused any prejudice or still wouldn't have caused any harm or affected the outcome of the case?

[00:27:31] Speaker 04:
And if that's so, then why would that be, given that the critical line of inquiry here is what was Sherman's discriminatory intent, if at all, against military reservists?

[00:27:48] Speaker 00:
To the extent the court concludes that this email should have been admitted into evidence and a line of questioning should have been permitted about it, Mr. Sharp cannot demonstrate that he was purchased by the exclusion of this email.

[00:28:00] Speaker 00:
because he was allowed to ask a wealth of questions about Mr. Sherman's own attitude towards reservists.

[00:28:10] Speaker 00:
He was able to explore a lot of territory with respect to Mr. Sherman's recommendations of Mr. Sharpe specifically.

[00:28:19] Speaker 00:
And again, the central inquiry in Mr. Sharpe's burden is to prove his initial burden by preponderance of evidence that somehow

[00:28:30] Speaker 00:
the agency's anti-military position on affected, in this case, his promotion.

[00:28:41] Speaker 01:
The problem is we can't stand in the shoes.

[00:28:44] Speaker 01:
We don't know what Sherman would have said in response to this email.

[00:28:49] Speaker 01:
Like, it bothers me.

[00:28:51] Speaker 01:
If Sherman was the boss of Tomaski and Sorrell, that he took no action in response to one employee using his government email to send a nasty note to another employee who had just filed a suit claiming discrimination based on his military status, you have to counsel your employees at a minimum that such behavior is inappropriate.

[00:29:10] Speaker 01:
You cannot use your government email to do that.

[00:29:12] Speaker 01:
Tomaski was more supervisory as well, which is even more of a problem, having a supervisor challenge people like that.

[00:29:19] Speaker 01:
I mean, I don't know.

[00:29:20] Speaker 01:
Mr. Sherman said, which I don't know who was in the room with him when he said this, but I'd have cringed if I were his lawyer or the government lawyer.

[00:29:30] Speaker 01:
Mr. Sherman was asked about his feelings about people who file suits of discrimination, and he claimed they were all free riders.

[00:29:39] Speaker 01:
You know what?

[00:29:40] Speaker 01:
Jack Nicholson was an excellent witness right up until the moment where he said he ordered the code red.

[00:29:45] Speaker 01:
So, I mean, Mr. Sherman has not been an excellent witness for you already, and he wasn't allowed, the Sharp team wasn't allowed to ask him what might have been the most provocative questions.

[00:29:57] Speaker 01:
So, I mean, that's the problem for me.

[00:29:59] Speaker 01:
I have trouble, it may well be that there's no prejudice, and at the end of the day, this case might come out exactly the same way.

[00:30:05] Speaker 01:
But for me, the problem is there's enough of a reason for me to be concerned about prejudice that I'm not willing to let it go.

[00:30:13] Speaker 01:
So I mean, that's it.

[00:30:14] Speaker 01:
That's not really a question.

[00:30:15] Speaker 01:
Sorry.

[00:30:15] Speaker 00:
I understand, Your Honor.

[00:30:17] Speaker 00:
I just want to just also say that, again, joint appendix pages 24, 75 to 77, if you look at Mr. Sherman's testimony in its context, I mean, the free ride remark is... It's like, what the heck?

[00:30:32] Speaker 00:
What is that man doing?

[00:30:34] Speaker 00:
But in context, I think he's... And of course, the administrative judge is in the best position

[00:30:40] Speaker 00:
to observe his demeanor and whatever motivations he may have had or displayed during his testimony.

[00:30:47] Speaker 01:
In context, it seems that he's a little- I know, and we defer to those sorts of credibility things, though I have to say her explanation didn't thrill me with the idea that I don't think he's being candid, I just think he's being hostile.

[00:30:58] Speaker 01:
Lots of people say lots of inappropriate things.

[00:31:00] Speaker 01:
They are all being candid when they say them.

[00:31:02] Speaker 01:
It doesn't mean they're not hostile.

[00:31:05] Speaker 00:
I agree, and in context, it seems that he does take issue with

[00:31:10] Speaker 00:
I have a pretty good relationship with military reservists in my office.

[00:31:15] Speaker 00:
It's not an issue.

[00:31:16] Speaker 00:
So to the extent that this group is filing claims, I just don't see any merit there.

[00:31:22] Speaker 00:
And that supported the judges, the way that she articulated her findings.

[00:31:30] Speaker 00:
But it's supported, by the way.

[00:31:32] Speaker 00:
Thank you.

[00:31:32] Speaker 00:
Thank you.

[00:31:33] Speaker 00:
We respectfully request that the court affirm the administrative judge's initial decision.

[00:31:37] Speaker 00:
Thank you.

[00:31:38] Speaker 01:
You have a little bit of rebuttal time.

[00:31:40] Speaker 01:
Yeah.

[00:31:41] Speaker 01:
Just because you have it doesn't mean you have to use it.

[00:31:43] Speaker 02:
I agree.

[00:31:44] Speaker 02:
I agree.

[00:31:44] Speaker 02:
But I would like to have the last word, if I could.

[00:31:49] Speaker 01:
You would prefer that over me having the last word?

[00:31:51] Speaker 01:
No.

[00:31:52] Speaker 01:
Even my last words, you think you've got something better than what I just said?

[00:31:56] Speaker 03:
If the ruling is in my favor, I would really appreciate if you all had the last comment on it.

[00:32:01] Speaker 03:
I just wanted to point out a couple of things, because I think there's a little bit of a misconception.

[00:32:05] Speaker 03:
There was other evidence.

[00:32:07] Speaker 03:
There was evidence, statistical evidence, that Mr. Sherman had a high proportion of reservists given the proximity of San Diego to military bases.

[00:32:14] Speaker 03:
He had never promoted any of them to a supervisory position.

[00:32:17] Speaker 03:
There was evidence that, that Mr. Sherman had had seven complaints in his office filed against him, which the judge noted

[00:32:25] Speaker 03:
but seemed to accept the premise that it was a response that, well, if you're so great with your reservists, how come so many of them are filing against you?

[00:32:33] Speaker 03:
And his response was, they want a free ride.

[00:32:35] Speaker 03:
So I think there is other indications in the record that are substantial.

[00:32:39] Speaker 03:
So the email doesn't stand on its own.

[00:32:41] Speaker 03:
It is a linchpin because I think there's a misunderstanding.

[00:32:44] Speaker 03:
What Tomaske says is somewhat irrelevant in the sense that it's an anti-military comment, in our view, because you can't do anything worse to a military member than call them a coward.

[00:32:54] Speaker 03:
And Tomasky certainly knew that Mr. Sorelles was a coward, and the judge knew because she took reference, judicial notice of Mr. Sorelles' usera claim.

[00:33:02] Speaker 03:
Not the facts necessarily, but she knew that Sorelles was a reservist who had filed a claim, and she saw the original appeal, which included his name.

[00:33:09] Speaker 03:
So this argument that somehow this is in a vacuum is incorrect.

[00:33:13] Speaker 03:
The reality is that the central premise to get at in a discrimination case is I have never, and I've been practicing for over 32 years, never had anyone give me the Perry Mason moment where they stood up and said,

[00:33:24] Speaker 03:
You know, Mr. Burns, you're right.

[00:33:25] Speaker 03:
I didn't want to promote these people because reservists take too much time, they're gone, and I'm just not going to promote them.

[00:33:31] Speaker 03:
That is not going to happen.

[00:33:32] Speaker 03:
So the way I look at this is we have two things, direct evidence of discriminatory intent, which you laid out in Xi'an, and indirect evidence.

[00:33:38] Speaker 03:
What is his intent?

[00:33:39] Speaker 03:
What is his motivation?

[00:33:41] Speaker 03:
What is the statistical, excuse me, I'm getting dry in the throat, what does the statistics show about

[00:33:47] Speaker 03:
his treatment.

[00:33:48] Speaker 03:
And I must disagree.

[00:33:49] Speaker 03:
Comparators as to how you treat members of the protective class are crucial.

[00:33:53] Speaker 03:
Otherwise, everyone would be a one-off.

[00:33:56] Speaker 03:
And that's what the government's, I think, the problem I have, the fundamental problem with their claim.

[00:34:00] Speaker 01:
Well, it seems to me that what isn't as significant as the Tomaski email itself is the fact that Mr. Sherman was copied on it

[00:34:10] Speaker 01:
And what was his reaction to it as the supervisor of all involved?

[00:34:14] Speaker 01:
And that to me seems like a very significant question.

[00:34:18] Speaker 01:
Why did Tomosky feel comfortable copying his supervisor on such a derogatory email?

[00:34:26] Speaker 01:
Did Mr. Sherman create an environment in which his employees, where it's okay to say things like this to people who file claims of discrimination,

[00:34:35] Speaker 01:
And you could explore that.

[00:34:37] Speaker 01:
Couldn't you if you got to ask him questions about how he handled this after the fact?

[00:34:43] Speaker 01:
Did he call these men into the office?

[00:34:44] Speaker 01:
Did he tell Tomosky and make it clear to everyone in the office that such behavior is inappropriate, that sort of thing?

[00:34:52] Speaker 01:
Or did he say, I just thought that was Tomosky's personal view and I think it's okay for him to use his government computer even though he's a supervisor.

[00:34:58] Speaker 01:
and send that to other employees.

[00:34:59] Speaker 01:
And so I feel like this is something you can probably figure out.

[00:35:03] Speaker 03:
Well, but there's another fact that I think you need to add, which the judge also excluded reference to, was the submission of Mr. Sherman of two reservists who went on television to talk about their mistreatment.

[00:35:14] Speaker 03:
He referred them to the Office of Professional Responsibility.

[00:35:16] Speaker 03:
He took no action against Damaski at all.

[00:35:19] Speaker 03:
And when I asked him about it, that's when he came again to his personal opinion.

[00:35:22] Speaker 03:
There is one final point in the brief second

[00:35:24] Speaker 03:
There is the issue of the other additional cases that the judge wouldn't allow on remand.

[00:35:29] Speaker 03:
And I do want the court to focus on that, because we could have had been allowed to present that, could have presented a different theory of retaliation.

[00:35:36] Speaker 03:
We could have supported his claim.

[00:35:37] Speaker 03:
Also, I think it's fundamentally unfair, particularly given that this case was sent to this ALJ initially on a remand for her misapplication of the standard.

[00:35:45] Speaker 05:
Do you have those other cases separately filed now?

[00:35:48] Speaker 03:
No, Your Honor.

[00:35:52] Speaker 03:
This goes to the issue of combining cases because it simply exhausts the party to have to file new appeals.

[00:36:01] Speaker 03:
And with all due respect, I'm not free.

[00:36:03] Speaker 03:
So I think the reason for the inclusion, like in the Perry decision where the Supreme Court came out and said, look, let's start putting all these claims in one basket.

[00:36:14] Speaker 03:
I don't think there was any reason whatsoever on that remand to exclude those additional claims.

[00:36:19] Speaker 03:
They would have been highly probative.

[00:36:21] Speaker 03:
We could have examined Mr. Sherman as to whether he felt retaliatory animus because they had filed an appeal, and we were precluded there.

[00:36:28] Speaker 03:
So I just conclude with the fact that I think that we're entitled to have a fair hearing.

[00:36:34] Speaker 03:
And I think that means that the ALJ needs to allow us to examine relevant evidence.

[00:36:38] Speaker 03:
And we weren't allowed to do that, so I ask that you reverse and remand this case.

[00:36:42] Speaker 03:
Thank you, Your Honor.

[00:36:43] Speaker 01:
I thank both counsel for their argument.

[00:36:44] Speaker 01:
The case is taken under submission.