Legal Case Summary

If these the court, my name is Richard Seymour. I represent Maureen Hill. There are three main points I'd like to address in this argument. The first are some of the extraordinary facts that need to be looked at in the aggregate as opposed to being disaggregated. Second, I'd like to discuss the lower court's approach to resolving the case. And third, I'd like to address why the lower court did have jurisdiction over the questions involving this hill being fired by the Joint Steeves. First is to the unusual nature of the facts. It seems to us that the best window on what was taking place inside the Joint Staffs is provided by the May 1, 2006 notice that proposed 14-day suspension. Now this was a document that was right on the heels of Miss Hill's having served a five-day suspension. And the document is at 8, 1298 and 8, 1299. The important thing is that one of the specific grounds for this proposed suspension was that Mr. Cain, her supervisor, found untrue the statements that she had made in her EEO complaint. That's at page 8, 1299. Now at page 8, 1261, we have the memorandum for the record that Mr

. Cain prepared, stating that he had demanded that Miss Hill provide to him the information about what she said in her complaint. We have at 925, her description of the altercation that took place on February 22, 2006. Now... One of the difficult, in this case, is there a lot of allegations that are here. This is sort of went by one, I understand. And you have a problem that you said you ought to look at it in kind of a total circumstances. Really? I guess what kind of intrigued me first about case is this whole question of how the Federal Act and the Herald of Fettling employees differ in these in terms of the whole business of the personnel action in terms of... Whether you must show a materially adverse personnel action with the God to federal employees opposed to non-fettling employees. Is that not one of the central points here that I just overrede? Your Honor, what the standard for federal employees and for private employees both was taken below and we believe correctly to be the same standard as for private employees in Burlington, Northern, what is unusual in the federal sector is that because federal sector claims involve a waiver of sovereign immunity, many courts have held that a planist must make specific discreet complaints with respect to everything that happens

. And as we saw from the district court's decision, the district court did not give much consideration to the content of anything that was not specifically exhausted. So if I were representing a private sector plaintiff, there would be a retaliation claim that it would cover the 300 days prior, if this is a state that had a local FEP law. The federal sector... The private employment situation out of these facts, it would never have gone to this late plan. I'm sorry, Your Honor, didn't you hear the last part of your speech? Private type action. If this was not the federal government, would we be looking at these kind of facts here? Your Honor, there are a lot of retaliation cases that have come across in the course of my career. You have unusual situations involving the supervisors. I think that this is a very unusual supervision status that we had here. This individual, they had code words to describe her e.o. complaints

. They called it her ongoing activities. Mr. Kane testified that he became aware that that was what that meant just a couple of months after he came onto the job. You have the former supervisors no longer even employed in the same unit. Talking with him about the war and how they can best get this person out of the workplace, you don't tend to have that kind of conspiratorial activity among President and former supervisors elsewhere. What is the underlying act that forms a basis for the retaliation claim? A series of actions, Your Honor. There's a five-day suspension immediately after, four days after Mr. Kane learned, this he had made an e.o. complaint against him. Then we have the proposed 14-day suspension on May 1, 2006, based upon his statement that what she said in the e.o. complaint was false

. Then we have a failure to adjudicate that complaint in the ordinary course. The party's New Yorkers are usually considered evidence of discrimination, but a failure to adjudicate that for nine months while it's held over her head. Then it gets withdrawn and replaced with a substitute proposal for a 14-day suspension that does not have the telltale anymore about it being related to his disapproval of what she said in the e.o. complaint. You have her being regarded as, or mark down as absolute without leave on standards that in the district court's opinion four times are recognized to apply to no one else. You have Anita Happel, for example, who is not mark down as tardy, but she's routinely given 59 minutes and she doesn't have to make up the time. My client makes up all of her time and she's still mark down as AWOL. You have a lot of district treatment coming out of here. Our contention is that you have to look at the chain of events in order to see whether there's sufficient chilling activity to meet the standards of Burlington, Northern. When you put all of those together and string them along, it is massively chilling activity. Let me ask you this, Ms. Seymour

. When she was received her evaluation of unacceptable, there was a laundry list of problems that they had where there are many of them went unrubudded. Now how can you say in the face of all these criticisms, in fact so many are unrubudded? That this action or this writing was given in retaliation? You're under, we believe that well, first, some of the allegations that the district court regarded as unrubudded were actually rebutted below. Some of the allegations that the district court dismissed for lack of causation, for example, like the removal of supervisory duties, the defendants own exhibit. I've got at 580 declaration of Ms. McHatherin who is involved in the audit. She says that the reason the thing did not proceed is there was a pre-existing EEO complaint in July. Now the way things work in the federal government is that if some official gets word of an EEO complaint, somebody hasn't gone through the formal process, they will put something in there as an EEO complaint. We don't know what that is, but there was something and when this was holding fire, then she makes the complaint. She names Commander O'Rourke as one of the persons who is responsible and then with an amount of days, they're told, let's push ahead on this. So there's a string of activity, it's like a string of dominoes. And what we have are a lot of facts that need to be resolved by the jury. There's a curious thing, Your Honor, looking at the district court decision. The court says again and again for different times that their different standards that are applied, but the court doesn't deal with that as being evidence of discrimination or something wrong

. You have the same individual making these decisions again and again and again. And the problem you have is sharp against acre complaint services. This is a case decided in 2013 by the Six Circuit, which held that where you have evidence of somebody with a bad motive, the documents that that person creates as to the individual's performance, as to the plaintiff's performance, should not be given weight on summary judgment. You've got to take that matter to trial. So to hear that the approach in the federal government is, let's paper these people, let's paper these people. Now, I'd like to turn for a moment. Let me ask the one of the factual question. I couldn't find answers to this, but you know the record better than I think. Did Cain ever inform Hill prior to rescinding the decision that he considered her to be AWOL from October 9th, 2006 to December 15th, 2006? Did he ever tell of that before he rescinded it? Your Honor, I believe that he had, but if I can just consult with my co-counsel, who I've been in the case this January, so. My co-counsel informed me that he did inform her of that, but they can't right now give a citation for it. Maybe you can find it. Cain, you're on the board. If we can, Your Honor, we will pass it on

. With respect to the district court's approach, the court said again and again in his findings that retaliation was very much in the forefront of Mr. Cain's mind. There's one expression that the court used. On page 39 of the Memoram Opinion, A 1983, explicit here and elsewhere is that Hill's e.e.o. complaint remained in the forefront of Cain's thought. So we have a district court that has found both lawful and unlawful motives. With respect to the finding of lawful motives, we think that a lot of facts were drawn, inferences were drawn. Hill's testimony was disregarded and Cain's testimony was credited, inappropriate for summary judgment, but put that aside for a moment. When a district court finds both lawful and unlawful motives, it is found a mixed motive situation. When it is done that, we submit it needs to address mixed motives analysis. It needs to put the burden on the government to show that it would have made the same decision in the absence of the improper motive

. That was never done. But apart from that, even under a pretext, MacDonald Douglas approach, the Supreme Court's decision yesterday in Burridge makes clear that but-for-acallization does not mean the only cause. It means it made a difference, but there can be also other things that are but-for-acallization. In other words, the example that Justice Scalia used is the straw that broke the camel's back. What we have in the district court's decision is not a determination that the legitimate reasons the loan would have carried the day, the equivalent of a same decision analysis, but with the plaintiff having the burden. The district court simply treated proof of some motive that the court regarded as the legitimate ending the discussion of a particular issue. And when you separate all of these issues, it looks like a pile of very small things, but it's just like taking rocks out of a stone wall. You take a look at a rock, say this is not enough for a stone wall. You take another rock away. This is not enough for a stone wall. It's when you put them together that you see the true structure that there was here. I would like to address just a couple of moments, Your Honor, on the question of time, Linus. Before you leave that, I want to make sure I understand

. Is it the reclassification that is the retaliatory act that you primarily focusing on here? Not primarily, Your Honor, but the reclassification was one of the things that did set things off. And what we know about the timing of the reclassification is that although this started in February or March and started outside of Miss Hill's work unit, it didn't get going. Nothing happened about it until Miss Hill made the complaint and named Mr. Orr work as an alleged discriminating official and he found out about that. And then things got worse. Just as when Mr. Hill made an EEO complaint and named Mr. Kane as a defendant, things got worse. We know Commander Orr work was very upset by this. There's a statement in the record that it can damage the career of a military person to have a complaint like that made against him. He got together with Colonel Sneed, who was the second level supervisor at the time and told her that she should not have gone to EEO. She should have gone to J1, the human relations part. What is the protective activity? You say that he or engaged in at least before the reclassification? She made, you know, the record does not make that clear

. She made complaints, but the text of the complaints is not in the record. What was passed on by somebody she spoke orally to, that is not in the record. All we know from the record is from Miss McCavin's testimony that as of July 2005, the matter of the reclassification of the position had been held up. And the actual formal order had not been done. In the record, what do we have to go on? Just that there was. The court was correct in saying, at least from the record, there was no protective activity engaged in before the reclassification. It's not in the record. Except that the government's exhibit says that there was a pending EEO complaint. The next thing that we have is that, see the... What, a pending EEO complaint does, and there's protected activity. Well, remember, protected activity is not just funding a formal complaint, it's opposition. But... I can't see anything. I'm not quite a wild EEO complaint, and you don't have protected activity. That's why they don't succeed. I'll give you that, Your Honor. But just moving on very quickly, it is not until after she filed her EEO complaint through the EEO process. In August 24th, something like that, of 2005, then the actual audit went forward. And it was not a normal audit, because they held back the information that would have allowed her to keep her supervisory duties. I see my time is up. Can I address the time that is? You've got some time remaining on the floor. So let's hear from Mr

. But... I can't see anything. I'm not quite a wild EEO complaint, and you don't have protected activity. That's why they don't succeed. I'll give you that, Your Honor. But just moving on very quickly, it is not until after she filed her EEO complaint through the EEO process. In August 24th, something like that, of 2005, then the actual audit went forward. And it was not a normal audit, because they held back the information that would have allowed her to keep her supervisory duties. I see my time is up. Can I address the time that is? You've got some time remaining on the floor. So let's hear from Mr. Gaskowitz. Yes, sir. May I please a court, David Mosquiz on behalf of the defendant, Department of Defense. In this case, the District Court grants summary judgment in favor of DoD below correctly. And it did so on numerous grounds that deny plaintiffs claims. And there are still other grounds that the District Court didn't get to, but are preserved in this appeal. Let me see a back in kind of understand how to put this in context of what has just been argued. Seems to me, on the retaliation, the reclassification is not, that's just one of the things that EEO ledges in really can't really point in direct at your protective activity. But there are a number of other things that they allege dealing with suspensions and take it. That's the crux of the allegation of the retaliation claim. Well, I think that they're trying to argue both things. And on the retaliation part related to the reclassification, I think you're hitting right on the exact point, which is that there is no evidence of any protected activity before the classification. And that's why the District Court correctly held that there was no causal link between any protected activity and the reclassification

. Gaskowitz. Yes, sir. May I please a court, David Mosquiz on behalf of the defendant, Department of Defense. In this case, the District Court grants summary judgment in favor of DoD below correctly. And it did so on numerous grounds that deny plaintiffs claims. And there are still other grounds that the District Court didn't get to, but are preserved in this appeal. Let me see a back in kind of understand how to put this in context of what has just been argued. Seems to me, on the retaliation, the reclassification is not, that's just one of the things that EEO ledges in really can't really point in direct at your protective activity. But there are a number of other things that they allege dealing with suspensions and take it. That's the crux of the allegation of the retaliation claim. Well, I think that they're trying to argue both things. And on the retaliation part related to the reclassification, I think you're hitting right on the exact point, which is that there is no evidence of any protected activity before the classification. And that's why the District Court correctly held that there was no causal link between any protected activity and the reclassification. And the timeline, I think, shows that exactly right, which is the audit began in February or March 2005. By July 2005, the audit had completed it and they had submitted a reclassified position description to the Washington Headquarters Service, which is the above branch that manages the joint staff. And then only after that, on August 9th, Ms. Hill was told that her supervisory duties were going to be removed. And on August 10th, according to her own complaint, she said that she was given a new list of standards based on removing her supervisory duties because this audit, which applied not just to her, but to another individual, had shown that there weren't enough full-time permanent employees. So that deals with reclassifications. Then you say none of the rest of them fit within this retaliatory claim because none of them is a federal personnel action affecting a material change in the terms, conditions, and benefits of employment and the versus materially adverse. Right. Well, I would only clarify that it's not none of them. There are the district court rightly found that there were several specific actions that did qualify as personnel actions. And those were dismissed because of the legitimate non-discriminatory reason provided by DOD that plaintiff failed to provide evidence of pretext that would be sufficient for a jury to find that it was merely a pretextual reason. I just want more question on that. And that is because I couldn't quite get from the other side, at least the argument I thought, in terms of this whole business of personnel action and how that puts federal employees in a different situation

. And the timeline, I think, shows that exactly right, which is the audit began in February or March 2005. By July 2005, the audit had completed it and they had submitted a reclassified position description to the Washington Headquarters Service, which is the above branch that manages the joint staff. And then only after that, on August 9th, Ms. Hill was told that her supervisory duties were going to be removed. And on August 10th, according to her own complaint, she said that she was given a new list of standards based on removing her supervisory duties because this audit, which applied not just to her, but to another individual, had shown that there weren't enough full-time permanent employees. So that deals with reclassifications. Then you say none of the rest of them fit within this retaliatory claim because none of them is a federal personnel action affecting a material change in the terms, conditions, and benefits of employment and the versus materially adverse. Right. Well, I would only clarify that it's not none of them. There are the district court rightly found that there were several specific actions that did qualify as personnel actions. And those were dismissed because of the legitimate non-discriminatory reason provided by DOD that plaintiff failed to provide evidence of pretext that would be sufficient for a jury to find that it was merely a pretextual reason. I just want more question on that. And that is because I couldn't quite get from the other side, at least the argument I thought, in terms of this whole business of personnel action and how that puts federal employees in a different situation. True or not? Yes. Congress, when they added the specific 2000 E-16 and they added federal employees to be covered by Title VII, they specifically said that it was personnel actions that were to be free from discrimination based on the list of different items that you can bring in Title VII claim for. And Congress has over and over again used personnel action when that's covering federal employees. And that's a specific choice by Congress as to what rights can be brought in court. That's not to say that they have the rights here are different rights. Right. So federal employees have substantial administrative rights and ways to challenge actions in the administrative process that nobody in the private sector would ever have. And this is a choice by Congress to limit the range of things that could be brought in court. I just, I wasn't sure from you. I thought I understood the law until you answered, that's always a bad sign. How is the federal employees' rights different than an ordinary Title VII case? So the only difference..

. True or not? Yes. Congress, when they added the specific 2000 E-16 and they added federal employees to be covered by Title VII, they specifically said that it was personnel actions that were to be free from discrimination based on the list of different items that you can bring in Title VII claim for. And Congress has over and over again used personnel action when that's covering federal employees. And that's a specific choice by Congress as to what rights can be brought in court. That's not to say that they have the rights here are different rights. Right. So federal employees have substantial administrative rights and ways to challenge actions in the administrative process that nobody in the private sector would ever have. And this is a choice by Congress to limit the range of things that could be brought in court. I just, I wasn't sure from you. I thought I understood the law until you answered, that's always a bad sign. How is the federal employees' rights different than an ordinary Title VII case? So the only difference... You said some language, but what does that mean real world? Right. So this court has repeatedly interpreted personnel action to essentially mean something that affects the terms, conditions, and privileges of employment. And we believe that personnel action does mean that. And that's the only difference is that... Does that have any significance in this case? Are there some of the claims that she made that would be good regular discrimination claims that are not because she's a federal employee? We think no, but it's in... And so the court can avoid reaching it, but at the same time some of the questions become slightly closer when you apply the materially adverse standard than applying the personnel action. Clearly these 17 actions are not personnel actions. Let me see. One of the things that concerned me about the ruling was that there were several incidents alleged of retaliation that the District Judge said as a matter of law did not materially adverse

. You said some language, but what does that mean real world? Right. So this court has repeatedly interpreted personnel action to essentially mean something that affects the terms, conditions, and privileges of employment. And we believe that personnel action does mean that. And that's the only difference is that... Does that have any significance in this case? Are there some of the claims that she made that would be good regular discrimination claims that are not because she's a federal employee? We think no, but it's in... And so the court can avoid reaching it, but at the same time some of the questions become slightly closer when you apply the materially adverse standard than applying the personnel action. Clearly these 17 actions are not personnel actions. Let me see. One of the things that concerned me about the ruling was that there were several incidents alleged of retaliation that the District Judge said as a matter of law did not materially adverse. Specifically, Keynes made 2006 proposal that he'll be suspended for 14 days, is rating of her as unacceptable, and her... Is placing her on the performance improvement plan as a result of that evaluation. Now my question is, how can we say as a matter of law that those are not materially adverse actions against an employee? Sure. Let me start with the proposed suspension. And I think the key here is to look at in the context of federal employees and the rights that federal employees have. And a proposed suspension doesn't mean anything. It's a proposal. It goes to another deciding officer entirely different who's not at all. But you don't think that would kill an employee's desire or interest in reporting further acts of belief discrimination? I don't think it realizes to the seriousness level that the Supreme Court was to the extent that the Court was a materially adverse is the standard that it rises to the level that the Supreme Court was looking for in Burlington, Northern. And this has specifically decided in the DC Circuit where in the in the Bala case where they said and they went and looked through the court cases across the country and they said the courts have refused to say something that is a proposed action of some type is sufficient. And this is especially so in federal context

. Specifically, Keynes made 2006 proposal that he'll be suspended for 14 days, is rating of her as unacceptable, and her... Is placing her on the performance improvement plan as a result of that evaluation. Now my question is, how can we say as a matter of law that those are not materially adverse actions against an employee? Sure. Let me start with the proposed suspension. And I think the key here is to look at in the context of federal employees and the rights that federal employees have. And a proposed suspension doesn't mean anything. It's a proposal. It goes to another deciding officer entirely different who's not at all. But you don't think that would kill an employee's desire or interest in reporting further acts of belief discrimination? I don't think it realizes to the seriousness level that the Supreme Court was to the extent that the Court was a materially adverse is the standard that it rises to the level that the Supreme Court was looking for in Burlington, Northern. And this has specifically decided in the DC Circuit where in the in the Bala case where they said and they went and looked through the court cases across the country and they said the courts have refused to say something that is a proposed action of some type is sufficient. And this is especially so in federal context. Do you have somebody entirely different who's not related to this, who's going to look at the claim and say on the merits, are these actions after Miss Hill has an opportunity to defend herself to provide all of the evidence she wants? Is this particular proposal sufficient to warrant a suspension? And so until that time when the document or until a suspension is actually implemented, we don't think it rises to the level of injury that the Supreme Court wanted to say something in materially adverse. And you want to address the other? Sure. As well. You want me to go over with you again? I think you were talking the rating and the performance and the rating of unacceptable and then putting our own performance improvement plan. And so in that the case law that's out there has shown that and this is in the Parsons case here in the fourth circuit that is an unpublished decision that a negative performance evaluation is not sufficient alone to be something that would rise to the level of materially adverse. And that's- Sure. She's not alleging this alone. Right. But alone and I think what the Court was talking about was alone not in context with something tangible connected to it such as a change in your position or an inability to get a promotion or some sort of salary issue. It has to be connected to something tangible. The unacceptable rating itself doesn't have any effect on her at the time and the in fact the performance improvement- We didn't have any effect. You may have done effect for salary or- It doesn't affect her salary. It doesn't affect anything related to her conditions of her job, what her responsibilities are

. Do you have somebody entirely different who's not related to this, who's going to look at the claim and say on the merits, are these actions after Miss Hill has an opportunity to defend herself to provide all of the evidence she wants? Is this particular proposal sufficient to warrant a suspension? And so until that time when the document or until a suspension is actually implemented, we don't think it rises to the level of injury that the Supreme Court wanted to say something in materially adverse. And you want to address the other? Sure. As well. You want me to go over with you again? I think you were talking the rating and the performance and the rating of unacceptable and then putting our own performance improvement plan. And so in that the case law that's out there has shown that and this is in the Parsons case here in the fourth circuit that is an unpublished decision that a negative performance evaluation is not sufficient alone to be something that would rise to the level of materially adverse. And that's- Sure. She's not alleging this alone. Right. But alone and I think what the Court was talking about was alone not in context with something tangible connected to it such as a change in your position or an inability to get a promotion or some sort of salary issue. It has to be connected to something tangible. The unacceptable rating itself doesn't have any effect on her at the time and the in fact the performance improvement- We didn't have any effect. You may have done effect for salary or- It doesn't affect her salary. It doesn't affect anything related to her conditions of her job, what her responsibilities are. She maintains her job and the whole purpose of the performance improvement plan is actually to get an individual and federal service who has received an unacceptable rating to get them forward to have an acceptable rating so that they continue their employment in federal service. And so the purpose of these is to actually bring the employee back to being a valuable contributor to the federal government and it's not a punishment. For you are assuming the truth of the that there's a solid basis in fact for the action that's taken. Her position is as the plaintiff that these are retaliatory actions. If they're not grounded in fact. Well, ultimately that's not I don't think relevant to the materially adverse or to the personnel action standard. That's an issue later on as to fighting on the merits of something of, but the reason I say that sounded like to me like you were saying, well this was justified. No, I'm trying to say I'm trying to put in context why it's not materially adverse to a federal employee in any type of situation as to why it wouldn't likely dissuade them from moving forward with the complaint because it doesn't have any actual effects and they're in fact given time. The whole point of the performance improvement plan is to see in 90 days can we figure out a way so that you get back to an acceptable level of performance and that's the whole point of it and so it doesn't it would not dissuade a reasonable employee from from bringing a charge. Now I don't think that there's anything in any federal case law to support the idea that you combine discrete events and combine them to make a single material materially adverse event and this is borne out by the Supreme Court's decision in in National Railroad Passengers Corps versus Morgan where the Supreme Court made very clear that if you want to combine events your claim created by Congress is a hostile work environment claim and Burlington, Northern is not a hostile work environment light claim right if you want to combine your events you need to present it as a hostile work environment claim and Ms. Hill is not even challenging the fact that there was no hostile work environment and it's borne out by various other cases that whenever the Supreme Court for example in Burlington Northern examined the individual events in that case they didn't examine them in context of each other they examined them individually because the point is what does each discrete act with that discrete act calls the individual to be dissuaded from maintaining a charge and part of the real problem here is that if you were to accept plainist argument you'd say that an act that occurred on the day that occurred is not materially adverse but a year later a bunch of other things happened and now that prior act becomes materially adverse because other things in the future happened it's it's not a judicially administrable standard and that was Burlington, Northern's whole idea to create an objective standard and one that was administrably done by the judiciary to decide what acts are materially adverse and what aren't and these are these are done on a discrete basis. Let me ask you a factual question again something I didn't understand like I did your opponent when Kane found the documentation that Miss Hill provided for her absence in 2006 I think is October to December is it record reflect what was wrong with that documentation. So I guess I'm not he wanted he wanted documentation from her to explain why she was gone I think maybe it was a health reason or something I've gotten exactly what it was but he found the documentation she submitted unacceptable but I never understood why it was unacceptable

. She maintains her job and the whole purpose of the performance improvement plan is actually to get an individual and federal service who has received an unacceptable rating to get them forward to have an acceptable rating so that they continue their employment in federal service. And so the purpose of these is to actually bring the employee back to being a valuable contributor to the federal government and it's not a punishment. For you are assuming the truth of the that there's a solid basis in fact for the action that's taken. Her position is as the plaintiff that these are retaliatory actions. If they're not grounded in fact. Well, ultimately that's not I don't think relevant to the materially adverse or to the personnel action standard. That's an issue later on as to fighting on the merits of something of, but the reason I say that sounded like to me like you were saying, well this was justified. No, I'm trying to say I'm trying to put in context why it's not materially adverse to a federal employee in any type of situation as to why it wouldn't likely dissuade them from moving forward with the complaint because it doesn't have any actual effects and they're in fact given time. The whole point of the performance improvement plan is to see in 90 days can we figure out a way so that you get back to an acceptable level of performance and that's the whole point of it and so it doesn't it would not dissuade a reasonable employee from from bringing a charge. Now I don't think that there's anything in any federal case law to support the idea that you combine discrete events and combine them to make a single material materially adverse event and this is borne out by the Supreme Court's decision in in National Railroad Passengers Corps versus Morgan where the Supreme Court made very clear that if you want to combine events your claim created by Congress is a hostile work environment claim and Burlington, Northern is not a hostile work environment light claim right if you want to combine your events you need to present it as a hostile work environment claim and Ms. Hill is not even challenging the fact that there was no hostile work environment and it's borne out by various other cases that whenever the Supreme Court for example in Burlington Northern examined the individual events in that case they didn't examine them in context of each other they examined them individually because the point is what does each discrete act with that discrete act calls the individual to be dissuaded from maintaining a charge and part of the real problem here is that if you were to accept plainist argument you'd say that an act that occurred on the day that occurred is not materially adverse but a year later a bunch of other things happened and now that prior act becomes materially adverse because other things in the future happened it's it's not a judicially administrable standard and that was Burlington, Northern's whole idea to create an objective standard and one that was administrably done by the judiciary to decide what acts are materially adverse and what aren't and these are these are done on a discrete basis. Let me ask you a factual question again something I didn't understand like I did your opponent when Kane found the documentation that Miss Hill provided for her absence in 2006 I think is October to December is it record reflect what was wrong with that documentation. So I guess I'm not he wanted he wanted documentation from her to explain why she was gone I think maybe it was a health reason or something I've gotten exactly what it was but he found the documentation she submitted unacceptable but I never understood why it was unacceptable. So I'm not sure exactly since there's a number of different things so in the March this was from October to December 2006 when she was out. Right I don't I think that there was confusion as to what the right category was because she didn't have any leave available and so the question is really does she get absence without leave or does she get leave without pay and there wasn't any consequences or anything for being listed as absent without leave it's only in the timekeeping it wasn't a charge of absence without leave or any suspension or any type of disciplinary action related to it and so I believe it was in the time card as absence without leave until she provided documentation then she provided it he conferred with Washington Headquarters Service on the correct way to list this and after consultation with Washington Headquarters Service he listed it in the time card as leave without pay. Okay and I'm going to switch gears on you now so you think we should consider evaluating a claim like hers the cumulative effect of the alleged retaliatory conduct? No and in terms of whether something is a materially adverse or not I mean that because that's the only that's the the way the argument is being presented is that something is materially adverse based on accumulation of things and there's nothing to suggest that you when the Supreme Court says in Burlington Northern not allowing someone to go to lunch with the supervisor is a trivial thing there's nothing that suggests well if you didn't allow them to go to lunch on five different occasions over three years that that somehow alters the analysis and it's you know a standard that can't be administered how do you add up different acts to say well these plus this plus this plus this plus this over in totally different contexts in totally different time periods somehow add up to make one single materially adverse standard the point is that if you want to add up a whole bunch of things you bring a hostile work environment claim and you say that the terms and conditions of my employment have changed based on this entire string of conduct that is related to each you know by that you don't say materially adverse somehow lowered the standard for hostile work environment claim. So are you saying that they're like stages that you would go through that if you're suffering adverse action retaliatory if it gets to a certain point then you then you've established a hostile work environment that you have to know where that point is well I might be confusing both of us. The fourth right the fourth circuits case law has established that you can bring a retaliatory claim for hostile work environment but the standard is as the same as a hostile work environment in discrimination based on status context that yes at some point in time when it is so perverse and severe that it affects the terms and conditions of your employment then you have a hostile work environment claim that's not to say that you then get to also go add up a bunch of things to try to say and now I have one materially adverse event or five things that are equal to one materially adverse event you it has to be the individual discrete action well hostile work environment claim is not made here correct it was brought below the district judge dismissed it and they're not appealing it correct so all we have is the claim of some materially adverse employment action correct just quickly getting to well there you know I'm happy to address any of your questions on any particular issues that you care about we care about all of you I think the district judge just just to close he on the four actions that were actually that he found were materially adverse because he did apply that materially adverse standard and he did apply it correctly the four actions that he did find that the government presented legitimate non-discriminatory reasons for the actions they're clear from the record and it's based on undisputed facts with respect to the five day suspension the undisputed facts that were found by major general custer someone who has nothing at all to do with the actions in this case he is a vice director of joint chiefs of staff he found that Ms. Hill had failed to follow this clear directions from mr. Kane in his email and there's no dispute that she in fact did not personally prepare the response that he was she was requested to do and that she did not send that response for his review prior having it sent to the office strat com the same is true on all the the other counts you know we've gone through a lot of detail on these facts and if you have questions on them I'm happy to address but I won't you know repeat what we said in our briefs thank you thank you see more reply I would like to have at least two minutes on time is at the end but I have to address some of the things that were just said if the government's argument were accepted by this then that means that federal employers inside the four circuit could take every individual who made an eeo complaint in issue a proposed suspension issue a performance improvement plan issue unacceptable ratings and keep them going and there's nothing that any court could do about it even if the workplace is terrorized and people don't dare make an eeo complaint that's just not an acceptable result and that tells us it's not an acceptable argument in Burlington northern itself the plaintiff suffered I believe it was a 33 perhaps a 34 day suspension and it was ultimately rescinded and she was given back pay for it and the Supreme Court held that that was sufficient to be chilling the conduct here was clearly sufficient to be chilling miss he'll did not face discrete events unconnected from another we have in the words of mr. Kane who's responsible for most of this that it was a war that they were gaming the way to get her out of the workplace that they saw these as stepping stones on the way to get it out of the workplace a stone wall is a stone wall now it is true that many courts have recognized a cause of action for a retaliatory harassment the claim of harassment below was a claim of harassment based on race and sex and that was not strong an appeal was not taken but I'm not aware of any decision of any court of appeals it has ever accepted the notion that a plaintiff cannot call a court's attention to the entire context of activity without making a claim specifically framed as retaliatory harassment that's not what the Supreme Court was holding in the amtrak case against morgan the untimeliness the key here is that on October 15th 2008 when an appeal was taken from the adverse personnel action of termination to the Marassistence Protection Board all counsel were receiving service by mail that's in conformity with the mspbpb regulation requiring multiple representatives for the same party to choose the same method of service a couple of months later Catherine Atkinson registered as an e-fighter that did not change the prevailing now registration by mail of mr. Gilbert the uh who was uh it was the lead counsel in the case and who originally filed earlier for mail service and her registration is an e-filer is not a registration by hill as the government asserts in its brief it was her personal registration as an e-filer if you apply strictly the mspb regulation uh which is uh 1201 5cfr 1201.14e3 than her registration was not valid there's no provision in the regulations uh for breaking a tie even if they filed simultaneously one is e-file one is mail that's in violation of the regulation but there's nothing that says that the e-filing trumps the mail filing the mspb in the course of all proceedings in this case treated both individuals uh is having filed now when the actual mspb decision came out we know from a document that the government filed in the case uh that uh and the uh record this is pages a 857 and a 858 which is petitioners reply to the e-o-c to the government's challenge to the timeliness of seeking review before the e-o-c uh and it quotes the on page a 858 it quotes the agency staying saying that it knew the petitioners representative Catherine Davis was out of the office an un maternity leave at the time of service now she'd actually resigned but they knew she wasn't there to receive it uh and if the agency in the trade no she's not there to receive it another reason why the district court really had jurisdiction there was no problem of untimedliness but it goes further the e-o-c has the power to review the decisions of the mspb and its own regulations uh uh uh state that it makes a preliminary determination and this is uh 29 CFR 1614.305 sub paragraphs and b say they make a preliminary determination whether this is a matter to be heard they did not address the question of timeliness in their decision but under the regulations they have to have made a preliminary determination that this was timely uh in order to be able to proceed with it so you want the benefit of the regulation in one case but you don't want to apply the regulations to another is there right? uh no you're on our i think the regulations for both the mspb and the e-o-c help us and the important thing here is that the government is seeking a novel result because there is no rule of regulation with respect to time breaking the mspb has never addressed it e-o-c has never addressed it and no article three court has ever addressed it so it's completely a novel issue before this court thank you thank you thank you

If these the court, my name is Richard Seymour. I represent Maureen Hill. There are three main points I'd like to address in this argument. The first are some of the extraordinary facts that need to be looked at in the aggregate as opposed to being disaggregated. Second, I'd like to discuss the lower court's approach to resolving the case. And third, I'd like to address why the lower court did have jurisdiction over the questions involving this hill being fired by the Joint Steeves. First is to the unusual nature of the facts. It seems to us that the best window on what was taking place inside the Joint Staffs is provided by the May 1, 2006 notice that proposed 14-day suspension. Now this was a document that was right on the heels of Miss Hill's having served a five-day suspension. And the document is at 8, 1298 and 8, 1299. The important thing is that one of the specific grounds for this proposed suspension was that Mr. Cain, her supervisor, found untrue the statements that she had made in her EEO complaint. That's at page 8, 1299. Now at page 8, 1261, we have the memorandum for the record that Mr. Cain prepared, stating that he had demanded that Miss Hill provide to him the information about what she said in her complaint. We have at 925, her description of the altercation that took place on February 22, 2006. Now... One of the difficult, in this case, is there a lot of allegations that are here. This is sort of went by one, I understand. And you have a problem that you said you ought to look at it in kind of a total circumstances. Really? I guess what kind of intrigued me first about case is this whole question of how the Federal Act and the Herald of Fettling employees differ in these in terms of the whole business of the personnel action in terms of... Whether you must show a materially adverse personnel action with the God to federal employees opposed to non-fettling employees. Is that not one of the central points here that I just overrede? Your Honor, what the standard for federal employees and for private employees both was taken below and we believe correctly to be the same standard as for private employees in Burlington, Northern, what is unusual in the federal sector is that because federal sector claims involve a waiver of sovereign immunity, many courts have held that a planist must make specific discreet complaints with respect to everything that happens. And as we saw from the district court's decision, the district court did not give much consideration to the content of anything that was not specifically exhausted. So if I were representing a private sector plaintiff, there would be a retaliation claim that it would cover the 300 days prior, if this is a state that had a local FEP law. The federal sector... The private employment situation out of these facts, it would never have gone to this late plan. I'm sorry, Your Honor, didn't you hear the last part of your speech? Private type action. If this was not the federal government, would we be looking at these kind of facts here? Your Honor, there are a lot of retaliation cases that have come across in the course of my career. You have unusual situations involving the supervisors. I think that this is a very unusual supervision status that we had here. This individual, they had code words to describe her e.o. complaints. They called it her ongoing activities. Mr. Kane testified that he became aware that that was what that meant just a couple of months after he came onto the job. You have the former supervisors no longer even employed in the same unit. Talking with him about the war and how they can best get this person out of the workplace, you don't tend to have that kind of conspiratorial activity among President and former supervisors elsewhere. What is the underlying act that forms a basis for the retaliation claim? A series of actions, Your Honor. There's a five-day suspension immediately after, four days after Mr. Kane learned, this he had made an e.o. complaint against him. Then we have the proposed 14-day suspension on May 1, 2006, based upon his statement that what she said in the e.o. complaint was false. Then we have a failure to adjudicate that complaint in the ordinary course. The party's New Yorkers are usually considered evidence of discrimination, but a failure to adjudicate that for nine months while it's held over her head. Then it gets withdrawn and replaced with a substitute proposal for a 14-day suspension that does not have the telltale anymore about it being related to his disapproval of what she said in the e.o. complaint. You have her being regarded as, or mark down as absolute without leave on standards that in the district court's opinion four times are recognized to apply to no one else. You have Anita Happel, for example, who is not mark down as tardy, but she's routinely given 59 minutes and she doesn't have to make up the time. My client makes up all of her time and she's still mark down as AWOL. You have a lot of district treatment coming out of here. Our contention is that you have to look at the chain of events in order to see whether there's sufficient chilling activity to meet the standards of Burlington, Northern. When you put all of those together and string them along, it is massively chilling activity. Let me ask you this, Ms. Seymour. When she was received her evaluation of unacceptable, there was a laundry list of problems that they had where there are many of them went unrubudded. Now how can you say in the face of all these criticisms, in fact so many are unrubudded? That this action or this writing was given in retaliation? You're under, we believe that well, first, some of the allegations that the district court regarded as unrubudded were actually rebutted below. Some of the allegations that the district court dismissed for lack of causation, for example, like the removal of supervisory duties, the defendants own exhibit. I've got at 580 declaration of Ms. McHatherin who is involved in the audit. She says that the reason the thing did not proceed is there was a pre-existing EEO complaint in July. Now the way things work in the federal government is that if some official gets word of an EEO complaint, somebody hasn't gone through the formal process, they will put something in there as an EEO complaint. We don't know what that is, but there was something and when this was holding fire, then she makes the complaint. She names Commander O'Rourke as one of the persons who is responsible and then with an amount of days, they're told, let's push ahead on this. So there's a string of activity, it's like a string of dominoes. And what we have are a lot of facts that need to be resolved by the jury. There's a curious thing, Your Honor, looking at the district court decision. The court says again and again for different times that their different standards that are applied, but the court doesn't deal with that as being evidence of discrimination or something wrong. You have the same individual making these decisions again and again and again. And the problem you have is sharp against acre complaint services. This is a case decided in 2013 by the Six Circuit, which held that where you have evidence of somebody with a bad motive, the documents that that person creates as to the individual's performance, as to the plaintiff's performance, should not be given weight on summary judgment. You've got to take that matter to trial. So to hear that the approach in the federal government is, let's paper these people, let's paper these people. Now, I'd like to turn for a moment. Let me ask the one of the factual question. I couldn't find answers to this, but you know the record better than I think. Did Cain ever inform Hill prior to rescinding the decision that he considered her to be AWOL from October 9th, 2006 to December 15th, 2006? Did he ever tell of that before he rescinded it? Your Honor, I believe that he had, but if I can just consult with my co-counsel, who I've been in the case this January, so. My co-counsel informed me that he did inform her of that, but they can't right now give a citation for it. Maybe you can find it. Cain, you're on the board. If we can, Your Honor, we will pass it on. With respect to the district court's approach, the court said again and again in his findings that retaliation was very much in the forefront of Mr. Cain's mind. There's one expression that the court used. On page 39 of the Memoram Opinion, A 1983, explicit here and elsewhere is that Hill's e.e.o. complaint remained in the forefront of Cain's thought. So we have a district court that has found both lawful and unlawful motives. With respect to the finding of lawful motives, we think that a lot of facts were drawn, inferences were drawn. Hill's testimony was disregarded and Cain's testimony was credited, inappropriate for summary judgment, but put that aside for a moment. When a district court finds both lawful and unlawful motives, it is found a mixed motive situation. When it is done that, we submit it needs to address mixed motives analysis. It needs to put the burden on the government to show that it would have made the same decision in the absence of the improper motive. That was never done. But apart from that, even under a pretext, MacDonald Douglas approach, the Supreme Court's decision yesterday in Burridge makes clear that but-for-acallization does not mean the only cause. It means it made a difference, but there can be also other things that are but-for-acallization. In other words, the example that Justice Scalia used is the straw that broke the camel's back. What we have in the district court's decision is not a determination that the legitimate reasons the loan would have carried the day, the equivalent of a same decision analysis, but with the plaintiff having the burden. The district court simply treated proof of some motive that the court regarded as the legitimate ending the discussion of a particular issue. And when you separate all of these issues, it looks like a pile of very small things, but it's just like taking rocks out of a stone wall. You take a look at a rock, say this is not enough for a stone wall. You take another rock away. This is not enough for a stone wall. It's when you put them together that you see the true structure that there was here. I would like to address just a couple of moments, Your Honor, on the question of time, Linus. Before you leave that, I want to make sure I understand. Is it the reclassification that is the retaliatory act that you primarily focusing on here? Not primarily, Your Honor, but the reclassification was one of the things that did set things off. And what we know about the timing of the reclassification is that although this started in February or March and started outside of Miss Hill's work unit, it didn't get going. Nothing happened about it until Miss Hill made the complaint and named Mr. Orr work as an alleged discriminating official and he found out about that. And then things got worse. Just as when Mr. Hill made an EEO complaint and named Mr. Kane as a defendant, things got worse. We know Commander Orr work was very upset by this. There's a statement in the record that it can damage the career of a military person to have a complaint like that made against him. He got together with Colonel Sneed, who was the second level supervisor at the time and told her that she should not have gone to EEO. She should have gone to J1, the human relations part. What is the protective activity? You say that he or engaged in at least before the reclassification? She made, you know, the record does not make that clear. She made complaints, but the text of the complaints is not in the record. What was passed on by somebody she spoke orally to, that is not in the record. All we know from the record is from Miss McCavin's testimony that as of July 2005, the matter of the reclassification of the position had been held up. And the actual formal order had not been done. In the record, what do we have to go on? Just that there was. The court was correct in saying, at least from the record, there was no protective activity engaged in before the reclassification. It's not in the record. Except that the government's exhibit says that there was a pending EEO complaint. The next thing that we have is that, see the... What, a pending EEO complaint does, and there's protected activity. Well, remember, protected activity is not just funding a formal complaint, it's opposition. But... I can't see anything. I'm not quite a wild EEO complaint, and you don't have protected activity. That's why they don't succeed. I'll give you that, Your Honor. But just moving on very quickly, it is not until after she filed her EEO complaint through the EEO process. In August 24th, something like that, of 2005, then the actual audit went forward. And it was not a normal audit, because they held back the information that would have allowed her to keep her supervisory duties. I see my time is up. Can I address the time that is? You've got some time remaining on the floor. So let's hear from Mr. Gaskowitz. Yes, sir. May I please a court, David Mosquiz on behalf of the defendant, Department of Defense. In this case, the District Court grants summary judgment in favor of DoD below correctly. And it did so on numerous grounds that deny plaintiffs claims. And there are still other grounds that the District Court didn't get to, but are preserved in this appeal. Let me see a back in kind of understand how to put this in context of what has just been argued. Seems to me, on the retaliation, the reclassification is not, that's just one of the things that EEO ledges in really can't really point in direct at your protective activity. But there are a number of other things that they allege dealing with suspensions and take it. That's the crux of the allegation of the retaliation claim. Well, I think that they're trying to argue both things. And on the retaliation part related to the reclassification, I think you're hitting right on the exact point, which is that there is no evidence of any protected activity before the classification. And that's why the District Court correctly held that there was no causal link between any protected activity and the reclassification. And the timeline, I think, shows that exactly right, which is the audit began in February or March 2005. By July 2005, the audit had completed it and they had submitted a reclassified position description to the Washington Headquarters Service, which is the above branch that manages the joint staff. And then only after that, on August 9th, Ms. Hill was told that her supervisory duties were going to be removed. And on August 10th, according to her own complaint, she said that she was given a new list of standards based on removing her supervisory duties because this audit, which applied not just to her, but to another individual, had shown that there weren't enough full-time permanent employees. So that deals with reclassifications. Then you say none of the rest of them fit within this retaliatory claim because none of them is a federal personnel action affecting a material change in the terms, conditions, and benefits of employment and the versus materially adverse. Right. Well, I would only clarify that it's not none of them. There are the district court rightly found that there were several specific actions that did qualify as personnel actions. And those were dismissed because of the legitimate non-discriminatory reason provided by DOD that plaintiff failed to provide evidence of pretext that would be sufficient for a jury to find that it was merely a pretextual reason. I just want more question on that. And that is because I couldn't quite get from the other side, at least the argument I thought, in terms of this whole business of personnel action and how that puts federal employees in a different situation. True or not? Yes. Congress, when they added the specific 2000 E-16 and they added federal employees to be covered by Title VII, they specifically said that it was personnel actions that were to be free from discrimination based on the list of different items that you can bring in Title VII claim for. And Congress has over and over again used personnel action when that's covering federal employees. And that's a specific choice by Congress as to what rights can be brought in court. That's not to say that they have the rights here are different rights. Right. So federal employees have substantial administrative rights and ways to challenge actions in the administrative process that nobody in the private sector would ever have. And this is a choice by Congress to limit the range of things that could be brought in court. I just, I wasn't sure from you. I thought I understood the law until you answered, that's always a bad sign. How is the federal employees' rights different than an ordinary Title VII case? So the only difference... You said some language, but what does that mean real world? Right. So this court has repeatedly interpreted personnel action to essentially mean something that affects the terms, conditions, and privileges of employment. And we believe that personnel action does mean that. And that's the only difference is that... Does that have any significance in this case? Are there some of the claims that she made that would be good regular discrimination claims that are not because she's a federal employee? We think no, but it's in... And so the court can avoid reaching it, but at the same time some of the questions become slightly closer when you apply the materially adverse standard than applying the personnel action. Clearly these 17 actions are not personnel actions. Let me see. One of the things that concerned me about the ruling was that there were several incidents alleged of retaliation that the District Judge said as a matter of law did not materially adverse. Specifically, Keynes made 2006 proposal that he'll be suspended for 14 days, is rating of her as unacceptable, and her... Is placing her on the performance improvement plan as a result of that evaluation. Now my question is, how can we say as a matter of law that those are not materially adverse actions against an employee? Sure. Let me start with the proposed suspension. And I think the key here is to look at in the context of federal employees and the rights that federal employees have. And a proposed suspension doesn't mean anything. It's a proposal. It goes to another deciding officer entirely different who's not at all. But you don't think that would kill an employee's desire or interest in reporting further acts of belief discrimination? I don't think it realizes to the seriousness level that the Supreme Court was to the extent that the Court was a materially adverse is the standard that it rises to the level that the Supreme Court was looking for in Burlington, Northern. And this has specifically decided in the DC Circuit where in the in the Bala case where they said and they went and looked through the court cases across the country and they said the courts have refused to say something that is a proposed action of some type is sufficient. And this is especially so in federal context. Do you have somebody entirely different who's not related to this, who's going to look at the claim and say on the merits, are these actions after Miss Hill has an opportunity to defend herself to provide all of the evidence she wants? Is this particular proposal sufficient to warrant a suspension? And so until that time when the document or until a suspension is actually implemented, we don't think it rises to the level of injury that the Supreme Court wanted to say something in materially adverse. And you want to address the other? Sure. As well. You want me to go over with you again? I think you were talking the rating and the performance and the rating of unacceptable and then putting our own performance improvement plan. And so in that the case law that's out there has shown that and this is in the Parsons case here in the fourth circuit that is an unpublished decision that a negative performance evaluation is not sufficient alone to be something that would rise to the level of materially adverse. And that's- Sure. She's not alleging this alone. Right. But alone and I think what the Court was talking about was alone not in context with something tangible connected to it such as a change in your position or an inability to get a promotion or some sort of salary issue. It has to be connected to something tangible. The unacceptable rating itself doesn't have any effect on her at the time and the in fact the performance improvement- We didn't have any effect. You may have done effect for salary or- It doesn't affect her salary. It doesn't affect anything related to her conditions of her job, what her responsibilities are. She maintains her job and the whole purpose of the performance improvement plan is actually to get an individual and federal service who has received an unacceptable rating to get them forward to have an acceptable rating so that they continue their employment in federal service. And so the purpose of these is to actually bring the employee back to being a valuable contributor to the federal government and it's not a punishment. For you are assuming the truth of the that there's a solid basis in fact for the action that's taken. Her position is as the plaintiff that these are retaliatory actions. If they're not grounded in fact. Well, ultimately that's not I don't think relevant to the materially adverse or to the personnel action standard. That's an issue later on as to fighting on the merits of something of, but the reason I say that sounded like to me like you were saying, well this was justified. No, I'm trying to say I'm trying to put in context why it's not materially adverse to a federal employee in any type of situation as to why it wouldn't likely dissuade them from moving forward with the complaint because it doesn't have any actual effects and they're in fact given time. The whole point of the performance improvement plan is to see in 90 days can we figure out a way so that you get back to an acceptable level of performance and that's the whole point of it and so it doesn't it would not dissuade a reasonable employee from from bringing a charge. Now I don't think that there's anything in any federal case law to support the idea that you combine discrete events and combine them to make a single material materially adverse event and this is borne out by the Supreme Court's decision in in National Railroad Passengers Corps versus Morgan where the Supreme Court made very clear that if you want to combine events your claim created by Congress is a hostile work environment claim and Burlington, Northern is not a hostile work environment light claim right if you want to combine your events you need to present it as a hostile work environment claim and Ms. Hill is not even challenging the fact that there was no hostile work environment and it's borne out by various other cases that whenever the Supreme Court for example in Burlington Northern examined the individual events in that case they didn't examine them in context of each other they examined them individually because the point is what does each discrete act with that discrete act calls the individual to be dissuaded from maintaining a charge and part of the real problem here is that if you were to accept plainist argument you'd say that an act that occurred on the day that occurred is not materially adverse but a year later a bunch of other things happened and now that prior act becomes materially adverse because other things in the future happened it's it's not a judicially administrable standard and that was Burlington, Northern's whole idea to create an objective standard and one that was administrably done by the judiciary to decide what acts are materially adverse and what aren't and these are these are done on a discrete basis. Let me ask you a factual question again something I didn't understand like I did your opponent when Kane found the documentation that Miss Hill provided for her absence in 2006 I think is October to December is it record reflect what was wrong with that documentation. So I guess I'm not he wanted he wanted documentation from her to explain why she was gone I think maybe it was a health reason or something I've gotten exactly what it was but he found the documentation she submitted unacceptable but I never understood why it was unacceptable. So I'm not sure exactly since there's a number of different things so in the March this was from October to December 2006 when she was out. Right I don't I think that there was confusion as to what the right category was because she didn't have any leave available and so the question is really does she get absence without leave or does she get leave without pay and there wasn't any consequences or anything for being listed as absent without leave it's only in the timekeeping it wasn't a charge of absence without leave or any suspension or any type of disciplinary action related to it and so I believe it was in the time card as absence without leave until she provided documentation then she provided it he conferred with Washington Headquarters Service on the correct way to list this and after consultation with Washington Headquarters Service he listed it in the time card as leave without pay. Okay and I'm going to switch gears on you now so you think we should consider evaluating a claim like hers the cumulative effect of the alleged retaliatory conduct? No and in terms of whether something is a materially adverse or not I mean that because that's the only that's the the way the argument is being presented is that something is materially adverse based on accumulation of things and there's nothing to suggest that you when the Supreme Court says in Burlington Northern not allowing someone to go to lunch with the supervisor is a trivial thing there's nothing that suggests well if you didn't allow them to go to lunch on five different occasions over three years that that somehow alters the analysis and it's you know a standard that can't be administered how do you add up different acts to say well these plus this plus this plus this plus this over in totally different contexts in totally different time periods somehow add up to make one single materially adverse standard the point is that if you want to add up a whole bunch of things you bring a hostile work environment claim and you say that the terms and conditions of my employment have changed based on this entire string of conduct that is related to each you know by that you don't say materially adverse somehow lowered the standard for hostile work environment claim. So are you saying that they're like stages that you would go through that if you're suffering adverse action retaliatory if it gets to a certain point then you then you've established a hostile work environment that you have to know where that point is well I might be confusing both of us. The fourth right the fourth circuits case law has established that you can bring a retaliatory claim for hostile work environment but the standard is as the same as a hostile work environment in discrimination based on status context that yes at some point in time when it is so perverse and severe that it affects the terms and conditions of your employment then you have a hostile work environment claim that's not to say that you then get to also go add up a bunch of things to try to say and now I have one materially adverse event or five things that are equal to one materially adverse event you it has to be the individual discrete action well hostile work environment claim is not made here correct it was brought below the district judge dismissed it and they're not appealing it correct so all we have is the claim of some materially adverse employment action correct just quickly getting to well there you know I'm happy to address any of your questions on any particular issues that you care about we care about all of you I think the district judge just just to close he on the four actions that were actually that he found were materially adverse because he did apply that materially adverse standard and he did apply it correctly the four actions that he did find that the government presented legitimate non-discriminatory reasons for the actions they're clear from the record and it's based on undisputed facts with respect to the five day suspension the undisputed facts that were found by major general custer someone who has nothing at all to do with the actions in this case he is a vice director of joint chiefs of staff he found that Ms. Hill had failed to follow this clear directions from mr. Kane in his email and there's no dispute that she in fact did not personally prepare the response that he was she was requested to do and that she did not send that response for his review prior having it sent to the office strat com the same is true on all the the other counts you know we've gone through a lot of detail on these facts and if you have questions on them I'm happy to address but I won't you know repeat what we said in our briefs thank you thank you see more reply I would like to have at least two minutes on time is at the end but I have to address some of the things that were just said if the government's argument were accepted by this then that means that federal employers inside the four circuit could take every individual who made an eeo complaint in issue a proposed suspension issue a performance improvement plan issue unacceptable ratings and keep them going and there's nothing that any court could do about it even if the workplace is terrorized and people don't dare make an eeo complaint that's just not an acceptable result and that tells us it's not an acceptable argument in Burlington northern itself the plaintiff suffered I believe it was a 33 perhaps a 34 day suspension and it was ultimately rescinded and she was given back pay for it and the Supreme Court held that that was sufficient to be chilling the conduct here was clearly sufficient to be chilling miss he'll did not face discrete events unconnected from another we have in the words of mr. Kane who's responsible for most of this that it was a war that they were gaming the way to get her out of the workplace that they saw these as stepping stones on the way to get it out of the workplace a stone wall is a stone wall now it is true that many courts have recognized a cause of action for a retaliatory harassment the claim of harassment below was a claim of harassment based on race and sex and that was not strong an appeal was not taken but I'm not aware of any decision of any court of appeals it has ever accepted the notion that a plaintiff cannot call a court's attention to the entire context of activity without making a claim specifically framed as retaliatory harassment that's not what the Supreme Court was holding in the amtrak case against morgan the untimeliness the key here is that on October 15th 2008 when an appeal was taken from the adverse personnel action of termination to the Marassistence Protection Board all counsel were receiving service by mail that's in conformity with the mspbpb regulation requiring multiple representatives for the same party to choose the same method of service a couple of months later Catherine Atkinson registered as an e-fighter that did not change the prevailing now registration by mail of mr. Gilbert the uh who was uh it was the lead counsel in the case and who originally filed earlier for mail service and her registration is an e-filer is not a registration by hill as the government asserts in its brief it was her personal registration as an e-filer if you apply strictly the mspb regulation uh which is uh 1201 5cfr 1201.14e3 than her registration was not valid there's no provision in the regulations uh for breaking a tie even if they filed simultaneously one is e-file one is mail that's in violation of the regulation but there's nothing that says that the e-filing trumps the mail filing the mspb in the course of all proceedings in this case treated both individuals uh is having filed now when the actual mspb decision came out we know from a document that the government filed in the case uh that uh and the uh record this is pages a 857 and a 858 which is petitioners reply to the e-o-c to the government's challenge to the timeliness of seeking review before the e-o-c uh and it quotes the on page a 858 it quotes the agency staying saying that it knew the petitioners representative Catherine Davis was out of the office an un maternity leave at the time of service now she'd actually resigned but they knew she wasn't there to receive it uh and if the agency in the trade no she's not there to receive it another reason why the district court really had jurisdiction there was no problem of untimedliness but it goes further the e-o-c has the power to review the decisions of the mspb and its own regulations uh uh uh state that it makes a preliminary determination and this is uh 29 CFR 1614.305 sub paragraphs and b say they make a preliminary determination whether this is a matter to be heard they did not address the question of timeliness in their decision but under the regulations they have to have made a preliminary determination that this was timely uh in order to be able to proceed with it so you want the benefit of the regulation in one case but you don't want to apply the regulations to another is there right? uh no you're on our i think the regulations for both the mspb and the e-o-c help us and the important thing here is that the government is seeking a novel result because there is no rule of regulation with respect to time breaking the mspb has never addressed it e-o-c has never addressed it and no article three court has ever addressed it so it's completely a novel issue before this court thank you thank you thank yo