[00:00:03] Speaker 01:
Our first case for argument today is 2018-1567 Williams versus OOC.

[00:00:11] Speaker 01:
Mr. Lee, please proceed.

[00:00:16] Speaker 02:
Good morning.

[00:00:23] Speaker 04:
May it please the court on behalf of the appellant, Ms.

[00:00:27] Speaker 04:
Williams,

[00:00:28] Speaker 04:
And as de facto counsel for the United States Congress and de facto counsel for the Constitution, the appellant asserts that 99 years after the decision in Plessy v. Ferguson, Congress enacted this Congressional Accountability Act.

[00:00:44] Speaker 03:
In the blue brief at page 9, you say that Ms.

[00:00:48] Speaker 03:
Williams received defamatory comments in her 2012 end-of-year performance evaluation.

[00:00:56] Speaker 03:
What were the comments and where

[00:00:57] Speaker 03:
Is the record cite to them, please?

[00:00:59] Speaker 04:
If Your Honor please, I don't believe I listed the comments or otherwise.

[00:01:03] Speaker 04:
But if I might say to Your Honor that the issue is not whether or not her comments were derogative or negative at this point.

[00:01:11] Speaker 04:
The issue is whether or not is how the statute 1311.

[00:01:14] Speaker 03:
Are you not going to answer my question?

[00:01:17] Speaker 04:
I can't answer your question.

[00:01:18] Speaker 03:
So they were no defamatory comments?

[00:01:20] Speaker 03:
They were.

[00:01:21] Speaker 04:
In her eyes, they were defamatory comments.

[00:01:25] Speaker 03:
I do not have... You know what defamation is in the law.

[00:01:28] Speaker 03:
I'm sorry?

[00:01:29] Speaker 03:
You know what defamation is in the law.

[00:01:31] Speaker 04:
I also know that she felt that the comments in her performance evaluations were defamatory in the first case, as in the other cases, and that the issue is not whether they were defamatory necessarily, but whether they were based on... Okay, okay.

[00:01:48] Speaker 03:
Fine.

[00:01:48] Speaker 03:
You say the issue is not whether they were defamatory, right?

[00:01:53] Speaker 03:
But you list

[00:01:55] Speaker 03:
as an issue, the defamatory comments published in Compliance 2012 end-of-year performance evaluation.

[00:02:03] Speaker 03:
That is to say, you have it under H, unlawful creation of a hostile work environment based on participation in federally protected activities based on a prior prosecution of Williams 1.

[00:02:25] Speaker 04:
If Your Honor, please, the matter was settled.

[00:02:29] Speaker 04:
I think the fact that the matter was settled in the first case goes to the fact that comments were considered to be defamatory, or if not defamatory, then discriminatory, one way or the other, and that even though there was no attribution of fault given to the architect of the Capitol, the office of the architect, it didn't make a difference.

[00:02:52] Speaker 04:
They accepted that.

[00:02:54] Speaker 03:
They accepted it was defamatory.

[00:02:56] Speaker 04:
They accepted the fact that it was discriminatory based on... Show me that in the record, please.

[00:03:01] Speaker 04:
I'm sorry?

[00:03:02] Speaker 03:
Show me in the record.

[00:03:07] Speaker 04:
I would ask the court to look at the settlement agreement, which is based in the appendix.

[00:03:14] Speaker 03:
I've got it.

[00:03:15] Speaker 03:
I've got the appendix.

[00:03:17] Speaker 04:
Go ahead.

[00:03:17] Speaker 04:
And it's in there, even though they do not accept the fact that... Can you give me a site, please?

[00:03:26] Speaker 04:
I would cite page 1397 and 13.

[00:03:32] Speaker 04:
I would cite 1397 where both the office of the architect and the complainant in the case were required to attend management concepts, a class dealing with resolving conflicts.

[00:03:46] Speaker 04:
And that as a matter of structure would say that there was something wrong in terms of what she had alleged in her original complaint.

[00:03:55] Speaker 03:
OK.

[00:03:56] Speaker 03:
If that's your answer, that's your answer.

[00:03:59] Speaker 04:
If Your Honor, please, I would state that the issue in this matter is not necessarily what's on the papers in front of you, but the interpretation of 1311, 1311A, and 1311A1.

[00:04:11] Speaker 03:
Does the CAA explicitly reference Title VII?

[00:04:16] Speaker 04:
It references Title VII only with regard to a categorical application of the Race 6.

[00:04:23] Speaker 04:
Your Honor, please, let me get the exact language.

[00:04:27] Speaker 04:
of the, within the meaning of section 703 of the Civil Rights Act of 1964, 42, 2008-2, which deals with race, sex, religion, gender by virtue of

[00:04:44] Speaker 04:
Pricewater House v. Hopkins.

[00:04:46] Speaker 03:
Do other courts consistently apply Title VII case law to CAA analysis?

[00:04:50] Speaker 04:
Yes.

[00:04:52] Speaker 04:
They do consistently apply that.

[00:04:54] Speaker 04:
However, they consistently apply inaccurately the fact that in that statutory language, it means the subject matter jurisdiction and the sufficiency of the evidence, meaning it has to be a tangible material adverse action.

[00:05:12] Speaker 03:
Did you cite this court to any case?

[00:05:15] Speaker 03:
in which a court is held that Title VII should not apply to CAI?

[00:05:19] Speaker 04:
No, I have not been able to.

[00:05:20] Speaker 04:
What I can cite to the court is Turner versus the U.S.

[00:05:24] Speaker 04:
Capitol Police, where they use the word convergence without going parsing 1311 or otherwise and just saying the language in 1311A1 is equal to and converges with the language in Title VII.

[00:05:41] Speaker 03:
You say in your blue brief, and this is where you're going, I think.

[00:05:46] Speaker 03:
that the board is guilty of unfaithful execution of the laws because it applied Title VII case law to the CAA.

[00:05:53] Speaker 03:
That is correct.

[00:05:53] Speaker 03:
Okay.

[00:05:54] Speaker 03:
But given that Title VII is explicitly referenced in the CAA and other courts consistently apply it, as you conceded, how is the court's, the board's reliance on Title VII authority unfaithful execution of the laws?

[00:06:12] Speaker 04:
If Your Honor, please, it's unfaithful because that's not how the statute reads simply because it talks about a categorical application of the immutable characteristics that are involved in Title VII.

[00:06:24] Speaker 04:
It does not mean with all the other parameters that exist in Title VII.

[00:06:29] Speaker 04:
When it talks about 42, 2008-2, it doesn't talk about, it's a totally, it's a new act

[00:06:39] Speaker 04:
It deals with new people.

[00:06:41] Speaker 04:
It's a new environment.

[00:06:42] Speaker 04:
It's the Congress of the United States who wanted this.

[00:06:45] Speaker 04:
They could have said within all capacity of what Title VII did, they could have made it a categorical application.

[00:06:51] Speaker 04:
They did not do that.

[00:06:53] Speaker 02:
Mr. Lieber, what concrete standard do you think does not come from Title VII that the board should have applied?

[00:07:03] Speaker 02:
What's the concrete

[00:07:05] Speaker 02:
difference between Title VII standards and the standard that you as applied here?

[00:07:09] Speaker 04:
I would say de minimis versus the tangible material actions required by Title VII.

[00:07:17] Speaker 04:
I would say de minimis in terms of what might be responded to in terms of the Federal Labor Relations Act, which is also made applicable to the Congress of the United States.

[00:07:28] Speaker 02:
And can I ask on the, so in the Title VII world,

[00:07:33] Speaker 02:
under Supreme Court cases, Harris Forklift and the other ones involving that sort of thing.

[00:07:37] Speaker 02:
Was that all by way of interpretation of the provision referenced here of 703?

[00:07:42] Speaker 04:
I believe it would if the minimus actions are entitled to be brought by a complainant and not simply thrown out on a motion to dismiss.

[00:07:51] Speaker 02:
So what's the affirmative reason to think that this statute

[00:07:59] Speaker 02:
despite merely referring to 703 and not saying in any way we are departing from it, that nevertheless it should be interpreted to depart.

[00:08:08] Speaker 04:
I would say it because the CAA is an integrated statute.

[00:08:12] Speaker 04:
And since there's only one uniform retaliatory statute for everything that's brought under the CAA, which includes all the cases that I brought in the section dealing with Federal Labor Relations Act cases and LRB cases,

[00:08:27] Speaker 04:
And since they use the word discrimination in 1317A, just as they do in 1311, I would say that they have to go along with a broader jurisdictional level.

[00:08:38] Speaker 02:
But elsewhere in the CAA, there is both incorporation of other regimes, like the FLRA and whatnot, and then some departures so that one would think that Congress, where it wanted to depart from the otherwise incorporated statutes, it said how it wanted to depart.

[00:08:57] Speaker 02:
But here there are no such departures.

[00:09:00] Speaker 04:
I would also state that in the other, as opposed to incorporated in other statutes that were made applicable, as made applicable by the act, they gave them authority to produce substantive regulations.

[00:09:16] Speaker 04:
And I say this was denied them in terms of Title VII, the ADA, the ADEA, the ADA, and the Rehab Act, which is all part of 1311.

[00:09:27] Speaker 04:
I would say that had they wanted to make it more narrow, they would have said that.

[00:09:32] Speaker 04:
They would have put in a categorical application of 1311, but they did not want to do that.

[00:09:40] Speaker 04:
I would also state to the court that this is even reinforced by the latest resolution of the House dealing with discrimination that's occurred because of the anti-Semitic or alleged anti-Semitic comments made.

[00:09:52] Speaker 04:
There is no such thing that

[00:09:56] Speaker 04:
in the latest resolution of the House that something has to be necessarily a one-time deal or a ten-time anti-submitted comment or otherwise comment to bring an action in the House of Representatives for purposes of censure or for purposes of reprimand.

[00:10:14] Speaker 04:
So as I said, this is consistent with how the House and the Senate looked at the CAA when they incorporated.

[00:10:20] Speaker 04:
You've got to remember, Your Honors, that nothing had existed for 200 years

[00:10:25] Speaker 04:
in the Congress of the United States, that there was not one of these acts.

[00:10:29] Speaker 04:
And they had the authority as an enacting legislature who could generate new law to generate it as they wanted to.

[00:10:39] Speaker 01:
The government argues that Ms.

[00:10:41] Speaker 01:
Williams didn't raise any of these arguments before the board, that therefore they're waived for purposes of appeal, namely whether or not Title VII precedent should apply to the CAA.

[00:10:52] Speaker 01:
Do you have a response to whether that was waived?

[00:10:54] Speaker 04:
I raised the arguments in all the writings that were submitted on the motion to dismiss.

[00:10:59] Speaker 04:
I raised it.

[00:11:00] Speaker 04:
I believe the arguments have been listed in the appendices to the case that's here.

[00:11:08] Speaker 04:
I raised it by reference in the briefs.

[00:11:13] Speaker 04:
The same arguments are made throughout the case.

[00:11:20] Speaker 01:
Below, before the board?

[00:11:22] Speaker 04:
below in the hearing officer and brought forward to the board.

[00:11:25] Speaker 04:
Would you give us a site for that?

[00:11:26] Speaker 04:
No, I cannot do that.

[00:11:28] Speaker 04:
I apologize, Your Honor.

[00:11:29] Speaker 04:
I have not looked for that, but I have not done that.

[00:11:32] Speaker 01:
But they raised it in their red brief.

[00:11:35] Speaker 01:
They say Williams argues the board erred in applying Title VII.

[00:11:37] Speaker 01:
I believe I responded to it.

[00:11:38] Speaker 01:
Sir, I'm talking.

[00:11:39] Speaker 04:
I apologize, Your Honor.

[00:11:41] Speaker 01:
Williams argues that the board erred in applying Title VII precedent to evaluate her discrimination retaliation claims.

[00:11:47] Speaker 01:
First, Williams did not raise this argument with respect to her discrimination claims before the board.

[00:11:52] Speaker 01:
therefore has been waived and the court should not consider it.

[00:11:56] Speaker 01:
Did you remember responding to that argument?

[00:12:01] Speaker 04:
I would suggest page 13 of respondent's brief.

[00:12:06] Speaker 01:
The great brief?

[00:12:09] Speaker 04:
Yes, the great brief.

[00:12:12] Speaker 04:
I apologize.

[00:12:26] Speaker 04:
I would suggest the entire Gray Brief deals with that, Your Honor.

[00:12:31] Speaker 01:
Well, I don't... It's lovely that the Gray Brief deals with it, but the government's argument was that you didn't make this argument before the Board.

[00:12:38] Speaker 01:
So whether you... What in the Gray Brief points me to a place where you made this argument before the Board?

[00:12:57] Speaker 01:
Why don't you, you know, we're into your rebuttal time.

[00:12:59] Speaker 01:
Why don't you take a minute and see if you can find a place where you can cite it to me when you come back up on rebuttal instead of wasting your time now.

[00:13:06] Speaker 01:
Let's hear from the government, Ms.

[00:13:07] Speaker 01:
Jenkins.

[00:13:31] Speaker 00:
Good morning, Your Honors.

[00:13:32] Speaker 00:
May it please the court?

[00:13:34] Speaker 00:
My name is Simone Jenkins, and I'm here representing the Office of Compliance in this matter, the respondent.

[00:13:40] Speaker 00:
Ms.

[00:13:40] Speaker 03:
Jenkins, in the red brief at 23, the government argues that Ms.

[00:13:45] Speaker 03:
Williams failed to establish her hostile work environment claims because she never alleged that her supervisors made derogatory comments about women or African-Americans or engaged in actions targeted towards women or African-Americans.

[00:14:01] Speaker 03:
What about more subtle forms of bias?

[00:14:03] Speaker 03:
Are they recognized as grounds for establishing a hostile work environment claim?

[00:14:10] Speaker 00:
No, Your Honor.

[00:14:11] Speaker 00:
The incidents that Ms.

[00:14:13] Speaker 00:
Williams cited in her brief and in her complaint ultimately did not satisfy... No, no.

[00:14:20] Speaker 03:
I asked you, what about generally, what about more subtle forms of bias?

[00:14:24] Speaker 03:
What about implicit bias?

[00:14:27] Speaker 00:
Ms.

[00:14:28] Speaker 00:
Williams did not raise any issues or argue that there were implicit forms of discrimination.

[00:14:36] Speaker 03:
That's not what I asked you.

[00:14:38] Speaker 03:
My question was, are they recognized as grounds for establishing a hostile work environment plan?

[00:14:44] Speaker 03:
Implicit bias, more subtle forms of bias.

[00:14:48] Speaker 00:
If there were enough severity and pervasiveness of issues, then yes, they could constitute a hostile work environment.

[00:14:56] Speaker 03:
Did the board consider the possibility of non-explicit forms of bias here?

[00:15:01] Speaker 00:
The board considered all of the facts that Ms.

[00:15:04] Speaker 00:
Williams alleged, and it ultimately concluded that the incidents that she cited to did not rise to the level of severity, nor were they pervasive.

[00:15:17] Speaker 03:
If the discrimination is implicit or more subtle, isn't it a high bar to put the burden on the petitioner to prove that actions were taken due to bias?

[00:15:30] Speaker 03:
It seems to me that's a significant flaw in the system.

[00:15:34] Speaker 00:
Your Honor, it's the petitioner's burden to demonstrate her claim.

[00:15:40] Speaker 00:
And ultimately, she failed to prove that she was subjected to any adverse action that would

[00:15:47] Speaker 00:
rise to the level of what is necessary to prove a hostile work environment claim.

[00:15:51] Speaker 03:
Out of curiosity, does Ms.

[00:15:53] Speaker 03:
Williams have any female supervisors in her supervisory chain of command?

[00:15:59] Speaker 00:
Your Honor, I believe that there at one point was a higher up in her chain of command, there was a female supervisor.

[00:16:06] Speaker 03:
Can you point me to the record on that?

[00:16:09] Speaker 00:
Yes, Your Honor.

[00:16:10] Speaker 00:
Give me one second.

[00:16:27] Speaker 00:
At one point, Ms.

[00:16:30] Speaker 00:
Anna Franz was the head of... Where are we in the record?

[00:16:34] Speaker 00:
We are at APBX 260026 to 0027.

[00:16:39] Speaker 02:
The head of planning and project manager?

[00:16:45] Speaker 00:
Yes, that was in her chain of command, as well as Christine Merton, who was the AOC chief operating officer.

[00:16:51] Speaker 03:
Okay.

[00:16:52] Speaker 03:
Thank you.

[00:16:55] Speaker 03:
You've satisfied my curiosity.

[00:16:58] Speaker 02:
Can I ask you a question about, I think, where we ended with Mr. Lee?

[00:17:05] Speaker 02:
Can you look at 1680, 1682 or so of the appendix?

[00:17:12] Speaker 02:
I'm not quite sure I understand what's going on at those pages, but I wonder if that was a kind of argument.

[00:17:21] Speaker 02:
This is, I think, to the board on seeking review of the hearing officer, but the CAA is not

[00:17:27] Speaker 02:
necessarily limited to Title VII?

[00:17:31] Speaker 00:
Yes.

[00:17:31] Speaker 00:
I can address Ms.

[00:17:33] Speaker 00:
Williams' Title VII claim.

[00:17:35] Speaker 00:
Is that what you're asking?

[00:17:36] Speaker 02:
Yeah.

[00:17:37] Speaker 02:
Just to help understand what he argued below, what the specifics of the argument is for how he thinks the CAA provides a more pro-plaintive standard than Title VII might.

[00:17:52] Speaker 00:
Right.

[00:17:53] Speaker 00:
So as we understand Ms.

[00:17:55] Speaker 00:
Williams' argument concerning Title VII, she argues that the language that is included in Section 201A of the CAA referring to- What's the US Code citation?

[00:18:08] Speaker 00:
Yes.

[00:18:09] Speaker 02:
It's really hard to translate back and forth all the time.

[00:18:12] Speaker 00:
I apologize.

[00:18:12] Speaker 00:
I will read it.

[00:18:19] Speaker 00:
13, excuse me, 1311.

[00:18:22] Speaker 00:
Subsection A. So the government understands Ms.

[00:18:27] Speaker 00:
Williams' argument to be that the phrase, all personnel actions included in subsection A, and I read it completely, it says, all personnel actions affecting covered employees shall be made free from any discrimination based on, and then the subpart one lists the... Race and sex are the two that were at issue here, right?

[00:18:46] Speaker 00:
So we understand Ms.

[00:18:46] Speaker 00:
Williams to be arguing that that phrase, all personnel actions, is unique to the CAA.

[00:18:51] Speaker 00:
However, this phrase actually comes from Title VII itself in subsection 2000E16, which is the section of- That's the federal government section.

[00:19:00] Speaker 00:
Yes, which is the section that applies to most of the federal government.

[00:19:04] Speaker 00:
So the argument that this is a unique phrasing and that it somehow lends itself to a more expansive reading of what is considered actionable conduct under Title VII is misplaced because the actual phrasing comes from Title VII itself.

[00:19:19] Speaker 02:
And as the-

[00:19:22] Speaker 02:
716 of that section in Title VII been held one way or the other to encompass more by way of hostile work environment than the basic private?

[00:19:38] Speaker 00:
No, the government is not aware of any cases that hold that 2016 encompasses more types of conduct than

[00:19:51] Speaker 00:
As Miss Williams suggests, yes.

[00:19:59] Speaker 02:
And is it your understanding that at least this theme was presented to the board at one place or another?

[00:20:06] Speaker 02:
No.

[00:20:06] Speaker 00:
As we mentioned in our brief, it's our understanding that this argument was not raised with respect to Miss Williams' discrimination claims.

[00:20:15] Speaker 00:
However, to the extent that it was raised with respect to her retaliation claims,

[00:20:20] Speaker 00:
The flaw that the government has highlighted in our briefs is that Ms.

[00:20:25] Speaker 00:
Williams failed to explain how she would have fared any differently under a more lenient type of standard.

[00:20:35] Speaker 00:
She does not make any connection to how a more expansive standard should be used to analyze the specific facts of this case.

[00:20:43] Speaker 02:
And ultimately... But isn't it something at least at a thematic level like there was a

[00:20:48] Speaker 02:
you know, a handful, maybe more than a handful of troublesome incidents, troublesome treatment.

[00:20:58] Speaker 02:
And part of what the hearing officer and then the board concluded was that none of them either, even putting aside those that the hearing officer just decided were not credible, that even the remaining ones didn't add up to enough.

[00:21:15] Speaker 02:
to create a overall hostile work environment, which the ordinary Title VII standards require, so that if she was right in her legal contention, at least here, that this statute is broader, maybe this doesn't add up to enough would be not the right lens.

[00:21:41] Speaker 00:
Well, yes, Your Honor.

[00:21:43] Speaker 00:
As I understand you to be saying that the board concluded that even under a more expensive standard, there simply was nothing in the record that demonstrated she could prove her claim.

[00:21:57] Speaker 00:
And even outside of the- So go ahead.

[00:22:01] Speaker 02:
Even if, at most, the CAA section requires a personnel action, and a personnel action

[00:22:12] Speaker 02:
I guess you're saying is still all of the troublesome incidents don't amount to personnel actions.

[00:22:24] Speaker 02:
No denial of bonuses, no specified non-promotions, no specified lack of particular training.

[00:22:35] Speaker 00:
Yes, that's correct.

[00:22:37] Speaker 00:
And with respect to the issue that Judge Wilek raised earlier concerning the performance reviews, Ms.

[00:22:44] Speaker 00:
Williams alleged that there were certain comments included in her performance review that she was courteous yet occasionally abrasive.

[00:22:52] Speaker 00:
On those performance reviews, she still received the highest overall performance rating on every performance review where those comments were included.

[00:23:01] Speaker 00:
So she ultimately suffered.

[00:23:03] Speaker 00:
There was no harm that resulted from the inclusion of those comments.

[00:23:08] Speaker 00:
And the hearing officer also made a fact determination that the comments were accurate.

[00:23:14] Speaker 00:
Additionally, she received all bonuses that she was due.

[00:23:17] Speaker 00:
She was never denied a promotion.

[00:23:19] Speaker 00:
She was never denied any training opportunities.

[00:23:22] Speaker 00:
The record actually shows that the AOC never denied any training opportunities that she requested.

[00:23:34] Speaker 01:
Do you have anything further?

[00:23:34] Speaker 00:
No, Your Honor.

[00:23:37] Speaker 01:
OK.

[00:23:37] Speaker 01:
And thank you, Ms.

[00:23:38] Speaker 01:
Jenkins.

[00:23:39] Speaker 01:
Let's hear from Mr. Lieb.

[00:23:41] Speaker 01:
He has a little bit of rebuttal time left.

[00:23:54] Speaker 04:
I apologize to the court.

[00:23:55] Speaker 04:
I was concentrating on searching the documents as opposed to listening

[00:24:00] Speaker 04:
to my opposing counsel.

[00:24:01] Speaker 04:
So I apologize to the court.

[00:24:03] Speaker 04:
Can't necessarily answer any questions that might have been raised by her argument.

[00:24:09] Speaker 04:
But I would point to pages 1404 of the appendix through the end of the appendix before the corrected certified list.

[00:24:20] Speaker 04:
The pages are, at one point or another, cited in the document.

[00:24:24] Speaker 04:
They are.

[00:24:26] Speaker 04:
Give us examples, OK?

[00:24:27] Speaker 04:
I'm sorry, sir?

[00:24:28] Speaker 03:
Give us some examples.

[00:24:30] Speaker 04:
On page 1661, it's a consolidated memo of law and points and authorities in support of petitioners' respective petitions for review.

[00:24:41] Speaker 04:
And within that document, it's argued from pages 1680 through 1691, the arguments that are made in this brief, essentially.

[00:24:56] Speaker 04:
The next document, which is Petitioners' Consolidated Response to Respondent's Opposition to Petitioners' Petitions for Review, which runs from 1633 to the end of the document on 1749.

[00:25:16] Speaker 04:
And within that document, pages 1732, it appears,

[00:25:25] Speaker 04:
And my objection to the board's questioning in terms of the capacity of 1311 and 1317.

[00:25:36] Speaker 04:
I apologize to the court.

[00:25:37] Speaker 04:
I can't find where I cited them in either the blue brief or the gray brief.

[00:25:41] Speaker 01:
No, but you've shown them to us now.

[00:25:43] Speaker 01:
So thank you.

[00:25:45] Speaker 04:
And I would submit on the briefs.

[00:25:46] Speaker 01:
OK, thank you.

[00:25:47] Speaker 01:
Thank you, Mr. Lee.

[00:25:48] Speaker 01:
Thank both counsel for the arguments.

[00:25:50] Speaker 01:
The case is taken under submission.