good morning your honest man who is the court unless alderman i represent mr johan who is here with us in the audience today your honour's you hear this all the time that this in this case there was too much evidence for summary judgment to be appropriate and you hear again today there was too much evidence in this case for summary judgment to be appropriate in two thousand and twelve we have a  missed it you know how it was removed this help us manager by the same two supervisors who gave false reasons for removing him false performance based reasons for removing him the supervisors continued to make statements and comments does that preclude her from being involved in the decision making process where your honor what i think it does is it makes it foolish for the architect not to implement measures that insulate the decision from her discriminatory and it's put in not have even interviewed mister despite the fact that you perform most of the duties of the position and received outstandings come invasions from from customers she said she would have even interviewed him and she told that to mr weedman who also was on the panel right before the or right around the time of the interviews be honest there's one mistake that i need to correct on the factual side of things in our brief we said that this first election both ran that selection they both had votes and that selection and this the weedman and she according to the other panelists advised the other panelists on the quality of the technical questions so they both were able to influence the selection yes on paper it says miss corke was the selecting official but and the district court ruled that both actually not just of off three clark weak men and hernandez should be considered deciding officials in this case the architect of the capitol did not cross appeal that is part of the law of the case is that all three are decision makers and all three exhibit animists them don't forget the miss hernandez made fun of mr yos x and says she needed a translator and he said that that was in comments are equally powerful in this case so that how do you how do you distinguish this case from a porter versus shaw porter we said that the fact that there had been finding of misconduct did not forever disqualify someone from being involved in the selection process and in that case we've got summary judgment you my reading of court of the shaw in the district court decision in porter is that there was absolutely no dispute that the influence that the deciding official exercised over the selection was nothing inappropriate about it there was nothing strange or suspicious about it the one piece of evidence that was discussed in the case was that the discriminating official rearrange the position description but all of the evidence that the rearrangement actually made the position description fit what that incumbent would actually be doing so the only evidence that we can discern from those decisions in porter was the evidence that these discriminatory officials were also involved in the subsequent selection and your honor your question about does that mean that she should forever be eligible to perform you know selections i think that's the tough question i think it's a very tough question for employers but i think the first step for the employer is when your supervisor is found to have this criminal take this economy action sin them to training at least in that case the architect would have been able to say here was a he was a moment yes they were found to have discriminated against we took action she was suspended for two for two weeks which she went to training there's something that the architect could point to to say here's something that could change her behavior and this case is not in fact both weedman and clark testified that their boss they ferguson who was the chief administrative officer he wasn't even upset with them so that not only that ms clarke gets promoted shortly after the discriminatory reorganization and there are thousands of dollars paid to both of them in performance awards so not only do they are not taken any action against them they promoted and paid them thousands and thousands of dollars in bonuses so they endorsed the discriminatory action so your argument is this your case is more like is no substantial difference between salazar in this case i mean the key thing in salazar is that someone who discriminated against salazar in the past but it was basically in charge well the other that there was a she never would have even interviewed him she then picks the panel on the first selection three out of the four panelists are people who have made derogatory comments either about mr your hospice ific leave or about people with accents then there's the questions the interview questions studiously avoided anything about helpdesk anything about inventory management i mean how hard would it be to ask the question what's your helpdesk experience how do you approach managing a helpdesk when clark admits that managing the helpdesk was one of the key functions of this job so just like in salazar that's getting that's that's getting us from where you are into the details of a job interview and we've been cautious about that unless there's something really sign of direct evidence of bias your honor there is direct evidence that i just simply didn't neglect to ask you that yes experience well it is the key wasn't interviewing for help actually you don't or miss clarke testified that managing the help desk being the second level of fixer and managing assets and i t inventory key functions of the job and she avoided questions on all three from then when you get into the analysis of the scoring well first there are there's a dispute a fact of whether clarke and whitman influence the other panelists you have panelists that say that that they did you have other panelists say that they didn't that's a disputed fact and mr whitman definitely says someone asked if that was a baloney answer and if you take a look at this hernandez's score sheet where she tallied everything up her response under mysterio has weakness was technical answers didn't make sense that ties the baloney answer comment to mr weak means advice during the during interviews other fishing as at least when you get to the second selection this surprise second round of interviews mr lewis says there was no discussion of a second round of interviews it only happened after we identified who the top scorers were one of those top scorers was a hispanic who spoke with an accent and there's this mysterious second round of interviews but then pops up and there's all kind of fuzzy testimony about the second round of interviews and this card says she was the sole decision maker that it really didn't matter who gave the best answers to look at all of the evidence all together but the big picture the ultimate select the the one of state was an american guy who spoke with no accent that's what happened in the big picture mr singh was there for a few months so very well on the technical answers that they asked him but the important thing with same i think there's two one the weaknesses for which they terminated saying are documented in their interview scoresheets i mean they said they needed a strong manager who could handle who could handle problem employees and the notes from the interview say that he's a weak manager doesn't have management experience  they also said that they needed someone who was who was an expert in microsoft technologies and mr hernandez a score sheet at least says weak in management and in microsoft so that his weaknesses are actually there from the get go and then this clark misrepresented the facts about his terminations she said in sworn that was sworn in iraq a s in or deposition that she did not propose singh's terminations but singh's declaration and the paperwork that ms clarke submitted clearly contradict that and that contradiction a false statement about a material fact in the case could lead injury to conclude that the real reason was discrimination and the judge judge walton essentially said there's no evidence that she was not being truthful well mr singh's declaration put a fine point he says she told me that she proposed my termination i checked with human resources they told me that the paperwork had been submitted and then after i resigned they told me that the paperwork and were withdrawn so she clearly either she proposed that the terminations formally or she was telling a huge half truth about the terminations in either way the jury could conclude that she was trying to hide her discriminatory or retaliatory animus and your honors i think unfortunately in the in the cases in the decision the retaliation aspect doesn't get enough attention even if even if you conclude that saying hurts the discrimination case it doesn't do anything with the retaliation case there's no question that saying  ever participated in protected activity there's no question that the thought of it selective never engaged in protected activity and clark statement i wouldn't even interviewed him despite his past good performance doing the key this corpus for his strings and she says it was a deliberate choice the testimony that she would not have even interviewed him despite the fact that he got outstanding when he did this job i mean these a jury could certainly conclude or exhibit retaliatory enema then add all the other pretext evidence you know combine with that it's certainly a strong the telly tory retaliation case but it's not direct evidence of retaliation as i believe the we do have the direct evidence of discrimination good morning and make please the court my name is johnny walker on behalf of the architect of the capitol your honour's to get past summary judgment mystery of how must present some evidence that national origin or retaliatory bias actually played a role in the of an official that's previously counts of been this was never tally ation contacts that an official who was previously found by a federal jury to have been guilty of retaliation the mere fact that they were involved in a later selection process did not indicate fun of his accent and comfort in that siri could even translate him that's it that's not a show of i don't think that mr women's comment that his voice recognition software was able to understand m i don't think so your honor because i don't think there's any reasonable question to ask and and even if there isn't you say there's no reasonable question that when mr weigman said wow siri can even translate you you don't think there's any reasonable some animists from that statement which was made several months before the selection process here the question is whether or not that analysts entered into the selection process season two thousand and fourteen and two thousand and fifteen and that's established by morris and morris you had a number selections they were conducted extremely by the book and there was nothing improper about them other distinctions from porter one is that that case involved a jury finding a federal jury finding and that is included to preclude effect in believe whatever he could believe from that regardless of whether claims of or not it matters your honor because if it's that mr johar relies on a number of findings from the hearing officer concerning the testimony provided by ms clarke concerning the  i think the question your honor is evidence of what evidence of discrimination on the basis of national origin in that first proceeding not with respect to the current proceeding not he can't claim that and he's not  i think your honor that it cannot be admitted to for evidence based on the findings of the hearing officer because there is case law holding i just talk i'm citing a supreme court case our case and you know three now give me a two thousand and fourteen and two thousand a quarter involved three selections with respect to two of those elections where employees formerly found to have either the tally editor to have been involved in retaliation remarkably similar to what mr joha claims here the court held that the mere involvement of those officials was insufficient to give rise to an inference of retaliation and the challenge selections the third selection the court or the court did hold that there was a reasonable inference of retaliation the court looked at the selection itself and it found with respect to that third selection that the plaintiff was substantially more qualified than the selectee because the position description in that case required actually degree and the plaintiff in that case had a masters and the selectee had no degree whatsoever now you have no similar argument here and certainly no evidence here that mr yo how was substantially more qualified than the saliva d s in this case both of whom i know are the same protected class that he is claiming of a combination of subject matter experts and customers of the relevant branch which is in keeping with the i o c rules to have each of those interviewed panelists ask the same questions of every candidate questions that were tailored to the job specifications required of the relevant position to have each of those independent panelists score the candidates to tabulate those scores and then to select the a person who achieved the highest scores and that was the first from two thousand and fourteen and the two thousand fifteen round she chose to have the top three go into a second interview round with the first second and third level supervisors and then to follow that with the discussion so that while miss carr could have picked anyone she liked this was the hernandez all of whom mr johann claims of having a bias against individuals based on the foreigner and in the second round that there was near unanimity with respect to the top three of the first two except for one deviation and that individual later concurred that the top three were in keeping with all the other panelist scores and agreed to send those along now importantly in the second round selection a candidate with foreign accent who we identified as a emma was rated in the top three by every single candidate including  clarke who mystery of accuses a foreign accent discrimination she rated him second and he says that miss clarke had some sort of elaborate plan that she later instituted when she discovered that a t m was in the top three she instituted some elaborate plan to somehow block him from being hired that does not comport with the fact that mr miss clarke rated him second overall of all the other candidates if she sought to block him it does not stand to reason that she would rate him as the second overall candidate during the first round int were a few things that if you look at the interview questions this court has consistently testified and said to the other interview panelists the key aspects of this job were supervisory experience and technical expertise now the position mr branch chief position had some over arching a forty over the helpdesk it certainly was not directly involved day to day and help desk issues are directly managing the help desk the record shows that was done by a contractor there was a contractor who had a contractor was assigned to the help desk manager and there was a different federal employee who oversaw that contract there were on occasion issues that would rise to the level of grinchy with issues that would be escalated pas help desk for resolution by the branch chief but it wasn't certainly a regular duty and the record also shows that if mr ito ha wanted to talk about his excellent experience and help desk management and asset inventory control he could have done that response any number of these questions he was not precluded in any way from doing that there were a number of questions asked of troubleshooting perhaps for precisely what i hope this does troubleshoot and their questions asking about experience of troubleshooting mystery of his not precluded in people with accents you've got to avoiding questions about key factors of the position and if you read the record it's on page one twenty eight of the record that's where she explains with the primary duties of the of the position on now sure he could mr you'll have could have inserted information about his helpdesk experience on a question that wasn't really related to help desk and that would have been a non sequitur and he would have got a bad grade on that question too when he was given the opportunity in the elevator speech question about which there's a dispute whether that had a discriminatory impact he did talk about his customer service experience and he didn't get any credit for it customer service is a key factor and the help that's management know the second level you know above the helpdesk staffers he talks about all of his customer service experience and it didn't gain any credit you've got all these subjective questions over here thank you very  to finish your sentence also the subjective nature of the questions there are no right or wrong answers to any of these questions and the judge says well we don't even consider that unless it is a relative qualifications case that's simply not true