[00:00:00] Speaker 00:
Good morning, counsel.

[00:00:01] Speaker 00:
Good morning.

[00:00:03] Speaker 00:
May it please the court?

[00:00:04] Speaker 00:
This is Taika Varlock on behalf of Appellants, and I would like to reserve five minutes for rebuttal.

[00:00:10] Speaker 00:
All right.

[00:00:11] Speaker 00:
Please watch your time, counsel.

[00:00:13] Speaker 00:
Yes, your honor.

[00:00:17] Speaker 00:
Your honors, the trial court applied an entirely incorrect legal framework, transforming a gender discrimination claim into an ADA claim.

[00:00:26] Speaker 00:
That structural error infected every ruling and foreclosed any possibility of justice for the unnamed women and named women in what started as a putative class action.

[00:00:38] Speaker 00:
This was a case of David versus Goliath, an inherently imbalanced litigation environment where unnamed women as well as the named plaintiffs came forward to try to stop systemic gender discrimination by United Parcel Service.

[00:00:56] Speaker 00:
This was like an infection because when the court decided to change the legal framework that was pled as a gender-based discrimination claim as well as equal pay act claims into an ADA claim, she created a trap room where nobody could win.

[00:01:14] Speaker 00:
With respect to the EPA and age claims, the court accepted evidence from the defendant that should have been rejected because it was lacking credibility.

[00:01:25] Speaker 00:
And instead of doing so, she accepted the defendant's evidence and rejected our evidence, which was unlawful.

[00:01:34] Speaker 00:
Regarding the discovery abuse in this case, the court rewarded the defendant for obstruction and for hiding the ball.

[00:01:46] Speaker 00:
The host in this case, which was the case of Goins versus UPS, was vulnerable because there was a structural imbalance.

[00:01:55] Speaker 00:
And when the court made a decision at the second amended complaint to change the structure of the argument to only being one that could be gender based, failure to accommodate, she left all plaintiffs with no opportunity to win.

[00:02:10] Speaker 00:
And that passage in infected the entire case going forward, including every ruling, every discovery order, and ultimately the judgment.

[00:02:20] Speaker 02:
Miss Farley, I was going to ask, so as I understand it, you're challenging the district court's ruling on the denial of the motion to dismiss.

[00:02:30] Speaker 02:
Was that the stage where you assert that the district court sort of reconfigured what this case was about?

[00:02:37] Speaker 00:
Yes, Your Honor.

[00:02:39] Speaker 02:
Do you have standing to assert a challenge to a denial of the motion to dismiss if you're the prevailing party?

[00:02:49] Speaker 00:
Yes, Your Honor, and that was briefed in the reply.

[00:02:52] Speaker 00:
I do have standing under Supreme Court authority in that case.

[00:02:57] Speaker 02:
Tell us why.

[00:03:04] Speaker 00:
One second.

[00:03:13] Speaker 00:
The reason why the court retains jurisdiction to hear

[00:03:17] Speaker 00:
the case with respect to the standing issue is because the court may correct legal errors even where they are in the appellant's favor.

[00:03:27] Speaker 00:
And that was actually decided in the case of Public Service Commission versus Beshear Freight Lines, which was 306 US 204.

[00:03:37] Speaker 00:
And in that case, the court held that a prevailing party could not appeal an injunction because at that time, there was nothing left for the court to do.

[00:03:48] Speaker 00:
However, in this case, there is a reason for the court to make a difference.

[00:03:55] Speaker 00:
And that is that there was a legal error in how the case was set up.

[00:04:01] Speaker 00:
And the court has held that it can retain jurisdiction where it is just simply coming back in to correct a legal error.

[00:04:09] Speaker 00:
And so we do have standing.

[00:04:11] Speaker 02:
And when would you have challenged it now, or should you have tried to file a notice of appeal after the court's motion to dismiss order?

[00:04:22] Speaker 00:
The reason why we're challenging it now is because the injury was not fully formed until the dismissal of the claims when the court decided that its own reasoning, which was that the only exhausted allegations were failure to accommodate based on gender.

[00:04:40] Speaker 00:
When the court used that reasoning to deny us relief, that was when the injury formed.

[00:04:45] Speaker 00:
So I could not have appealed it any earlier because we did not know that the court was not going to apply the law correctly until we were at the summary judgment stage.

[00:04:54] Speaker 00:
So the issue became ripe when the case was dismissed.

[00:05:03] Speaker 01:
The error that you think is reflected in the

[00:05:12] Speaker 01:
opinion in your favor on the motion to dismiss was what precisely?

[00:05:20] Speaker 01:
As I read the complaint, you have a gender discrimination claim, but a lot of the actions that you're complaining about are failure to accommodate.

[00:05:30] Speaker 01:
I guess I can say I sympathize to agree with the district court as being somewhat confused about whether this was

[00:05:37] Speaker 01:
A disability claim or a gender claim.

[00:05:39] Speaker 00:
Well, we can get there, your honor.

[00:05:40] Speaker 00:
So just to be precise on at ER 32, which is at lines 14 through 18.

[00:05:49] Speaker 00:
The court states that second amended complaint, paragraph 58, the only allegation that has been administratively exhausted by Goins is a denial of a reasonable accommodation.

[00:05:59] Speaker 00:
So she framed, the court framed the argument in that this was the only structure that I was able to use.

[00:06:07] Speaker 00:
So the court set it up that way.

[00:06:09] Speaker 00:
And then if you go to E.R.

[00:06:13] Speaker 00:
90 through 91, which is the order sustaining and partially dismissing the second amended complaint, the court lays out in its final paragraphs on pages 90 through 91 of the order what actually is allowed.

[00:06:30] Speaker 00:
And it is, chapter and verse, disparate treatment based on a denied reasonable accommodation based on a gender violation of both Title VII and FIHA, and also

[00:06:43] Speaker 00:
Lopez's disparate treatment was the denied reasonable accommodation based on gender, and then she goes on to discuss Jones.

[00:06:50] Speaker 00:
The point of this argument is that the court

[00:06:54] Speaker 00:
made the pleadings very, very narrow to the point that all I could argue was an accommodation.

[00:07:01] Speaker 00:
And then when we got to the summary judgment stage, she said, well, guess what?

[00:07:05] Speaker 00:
All of the case law in this circuit says that you cannot argue gender discrimination as an accommodation.

[00:07:11] Speaker 00:
I don't agree with that ruling, which is why I'm here.

[00:07:14] Speaker 00:
And my position is that under Muldrow, as well as Chu, as well as Lamb,

[00:07:20] Speaker 00:
The failure to accommodate is not the harm, it is the method of how the failure to accommodate was done that is the harm.

[00:07:28] Speaker 01:
Okay.

[00:07:30] Speaker 01:
Yes.

[00:07:30] Speaker 01:
Suppose we agree with you on that.

[00:07:33] Speaker 01:
The district court also said that you still don't have a prima facie case at step one of McDonnell Douglas because you haven't identified or at least not with any specificity that there were similarly situated men who

[00:07:48] Speaker 01:
You wouldn't need to show that there were men who were similarly in need of an accommodation and did get one, and you needed one and didn't get it.

[00:07:57] Speaker 01:
And you don't have evidence of that.

[00:07:59] Speaker 01:
So even if you're right about how we should think about failure to accommodate as an adverse action, why isn't that an independent basis for what the district court did?

[00:08:10] Speaker 00:
It's not because, Your Honor, we pointed to the respondent's evidence as well as our own evidence to show that this area that we're talking about, the small SOAR area, everyone has the same job.

[00:08:26] Speaker 00:
There are different types of ways of doing the job, but everybody has the same job.

[00:08:31] Speaker 00:
Everybody works the same shift.

[00:08:32] Speaker 00:
And we named the particular men who were involved in our papers, and we cited to it in our declarations.

[00:08:38] Speaker 00:
And so if you even look at pages eight through nine of the answering brief, the respondent itself explains what happens in the small sorts and says specifically, I can even read it for the record, the respondent says that everyone basically unloads packages.

[00:09:07] Speaker 00:
That's what they're there to do.

[00:09:08] Speaker 00:
And so all people did the same thing.

[00:09:11] Speaker 00:
If you look at the declaration of goings as well as.

[00:09:15] Speaker 00:
Lopez and Jones Jackson, they named individual men who performed the same jobs but were given an accommodation.

[00:09:23] Speaker 02:
Can I ask you to be more specific about it and maybe point to where in these declarations?

[00:09:28] Speaker 02:
Because I think one of the points that the district court made was that there wasn't a description of what the men specifically were doing to be sufficient comparators to what the plaintiffs were doing.

[00:09:42] Speaker 02:
Because I think there's some indication that some of the men have a different classification and so are paid differently and perform different work.

[00:09:51] Speaker 02:
So where in the declarations do they talk about what the men do versus what the plaintiffs did?

[00:09:58] Speaker 00:
Yes, Your Honor.

[00:10:00] Speaker 00:
One second.

[00:10:28] Speaker 00:
So EOR 1012 through 1014, Lopez talks about the denial of the accommodations and the different people on her line.

[00:10:47] Speaker 00:
And then with respect to Jones-Jackson,

[00:10:56] Speaker 02:
But where in that does it describe what the similarities are between the people who received accommodations versus the job duties of the plaintiffs?

[00:11:09] Speaker 00:
I think that the I think that the that was in the goings declaration and let me find it in my brief.

[00:11:17] Speaker 00:
So specifically, Your Honor, in the Goyne's declaration, she explains that there was a man named Matt who worked on the same line as her when she was doing the debagging position, and that he was also disabled, but he was given an accommodation without having to turn an ADA paperwork.

[00:11:35] Speaker 00:
And that's also cited in the court's order dismissing the case.

[00:11:41] Speaker 00:
And I can get that cite for you.

[00:11:48] Speaker 02:
If you look at... Because I'm looking at paragraph 24 of the Goyne's declaration, and it just says, Matt, who was moved to a less demanding job without needing ADA paperwork despite also being disabled.

[00:12:03] Speaker 02:
But I don't see anything about what Matt does in relation to the plaintiff to make the prima facie case four-pronged for.

[00:12:15] Speaker 00:
Right.

[00:12:15] Speaker 00:
And so what I was saying is,

[00:12:17] Speaker 00:
if you were even to accept that the evidence that was submitted by both the respondents and the appellants.

[00:12:26] Speaker 00:
sets the stage for where everybody worked.

[00:12:28] Speaker 00:
And maybe that wasn't as clear as it needed to be pointed out, but what I'm arguing today is that this area is where everything happened and everybody had a similar job of both unloading and loading trucks.

[00:12:39] Speaker 00:
That's what they were there to do.

[00:12:41] Speaker 00:
And so it followed that when the person was working on the same line as Ms.

[00:12:45] Speaker 00:
Goins, for example, that they were performing the same job.

[00:12:49] Speaker 00:
And it also is evident by the

[00:12:53] Speaker 00:
collective bargaining agreement which was used to support the denial of the Equal Pay Act claim where the court goes through it and says that this is the reason why this person received more money is because they had a different job title despite them working in the same area.

[00:13:10] Speaker 00:
And there's case law that says that you don't have to have everything the same in order for it to be a comparator.

[00:13:16] Speaker 02:
Right, but you need to have something to put meat on the bone as to what it is that people are doing in order to become sufficient comparators, right?

[00:13:24] Speaker 02:
Can I ask you this?

[00:13:25] Speaker 02:
Are there people with different classifications and skilled positions in that same sorting area?

[00:13:33] Speaker 00:
Only the tenders.

[00:13:34] Speaker 00:
And our arguments didn't have anything to do with the tenders.

[00:13:38] Speaker 00:
Our arguments had to do with baggers, de-baggers, and sorters, which are all considered to be the same classification.

[00:13:43] Speaker 00:
And additionally, Your Honor, what I'd like to point out to the court is that our position is that when the lower court decided that everything had to be looked at as a disability failure to accommodate claim,

[00:13:55] Speaker 00:
the qualification itself of being able to perform the job, much less identify a comparator, was infected because we only could look at it from the lens of what job the disabled person was able to do.

[00:14:08] Speaker 00:
So I wasn't even able to set up a prima facie case because the court set up the game board in a way that was untenable.

[00:14:15] Speaker 00:
No plaintiff could have won this case.

[00:14:16] Speaker 00:
Because she said, as long as you're talking about an accommodation for someone who happens to be a woman,

[00:14:22] Speaker 00:
It's not legal.

[00:14:23] Speaker 00:
There's no cause of action for that.

[00:14:25] Speaker 00:
So it didn't matter what man or woman or any other comparator I showed because it was never going to fit into that puzzle that the court created.

[00:14:32] Speaker 00:
And now with Muldrill, we know it was not good law because a change in the job doesn't need to be material when it is based on a discriminatory factor such as one's gender.

[00:14:42] Speaker 00:
And that's what happened here.

[00:14:45] Speaker 00:
Council, did you want to save some time for rebuttal?

[00:14:46] Speaker 00:
Yes.

[00:14:47] Speaker 00:
Thank you.

[00:15:05] Speaker 03:
Good morning.

[00:15:06] Speaker 03:
May it please the court?

[00:15:07] Speaker 03:
Elizabeth Brown for the defendant and appellee.

[00:15:12] Speaker 03:
Sorry, it's my first time, United Parcel Service.

[00:15:16] Speaker 03:
Thank you for your time.

[00:15:18] Speaker 03:
I'd like to address a couple of the issues that were raised by the appellants just now in the argument and then move on to the analysis of the court's decision.

[00:15:29] Speaker 03:
Specifically, it is our position that this court cannot

[00:15:36] Speaker 03:
evaluate or reconsider decisions that were made in appellant's favor at the motion to dismiss stage.

[00:15:43] Speaker 03:
The case that was just mentioned in the opening argument, the Public Service Commission of Missouri versus Brad Shear Freight Lines, that's 59 Supreme Court 480.

[00:15:56] Speaker 03:
It does not stand for the proposition that this court may consider rulings that were favorable to the appellant and reconsider them.

[00:16:03] Speaker 03:
In fact, it actually denied that proposition right there in the decision.

[00:16:07] Speaker 03:
The one appeal was of one of the cross-complaints in that particular case, and the court said we have no jurisdiction to consider it.

[00:16:18] Speaker 02:
But, Ms.

[00:16:19] Speaker 02:
Brown, let me ask this.

[00:16:19] Speaker 02:
Even if that's so, is it a problem that the district court

[00:16:26] Speaker 02:
construed the claims as being a failure to accommodate when what was actually being alleged is certain men were being accommodated in this informal manner, but not the women, which is a disparate treatment claim.

[00:16:42] Speaker 03:
Of course, the court, I just want to be clear that the court did not construe this case as a failure to accommodate.

[00:16:47] Speaker 03:
And I think it's important to look at the history of this case.

[00:16:51] Speaker 03:
This case began as a nationwide class action.

[00:16:54] Speaker 03:
against UPS on behalf of all women at UPS, regardless of their positions, regardless of their job classifications.

[00:17:02] Speaker 03:
That's how this case began.

[00:17:03] Speaker 03:
It had the original three plaintiffs, plus it was pled on behalf of the entire class of all women at UPS.

[00:17:11] Speaker 03:
Then there was an amendment to the complaint, a First Amendment complaint that added about 13 other plaintiffs, but still kept it as a class action on behalf of all women at UPS.

[00:17:23] Speaker 03:
And then

[00:17:24] Speaker 03:
in so construing it or rather in choosing to plead this as a class action, the plaintiffs who are the masters of their own complaint clearly did not want to plead a failure to accommodate, right?

[00:17:37] Speaker 03:
A failure to accommodate claim as a class claim is very difficult to do.

[00:17:41] Speaker 03:
It is arguably easier to try to plead a gender discrimination class action, an equal pay act class action.

[00:17:48] Speaker 03:
So they chose not to bring a disability discrimination claim, they chose not to bring

[00:17:53] Speaker 03:
on failure to accommodate claim on the class-wide basis.

[00:17:56] Speaker 02:
I'm not sure you're answering my question.

[00:17:58] Speaker 02:
What the district court seemed to do was treat the claims as, for example, for Ms.

[00:18:04] Speaker 02:
Goins, she was not accommodated and was forced to stand, as opposed to the claim being, this happened to her despite a similarly situated male colleague being accommodated.

[00:18:18] Speaker 03:
Right.

[00:18:19] Speaker 03:
So then the district court was then faced with a first round of briefing and then the second amended complaint, which was framed by the plaintiffs again themselves.

[00:18:28] Speaker 03:
And in the second amended complaint, and I think that Your Honor alluded to that earlier, in the second amended complaint, there is a section of the second amended complaint where the plaintiff herself characterized it as UPS systematically violates the ADA by telling women employees

[00:18:44] Speaker 03:
You must be 100% healthy to go back to work and only offers reasonable accommodation to men.

[00:18:49] Speaker 03:
Then in paragraphs 221 and 222, this is on the excerpt of record 1532.

[00:18:55] Speaker 03:
In those paragraphs, it talks about in the case of women, they're not provided accommodation.

[00:19:01] Speaker 03:
In the case of men, they're provided accommodation.

[00:19:04] Speaker 03:
Women are ignored and left without accommodation.

[00:19:07] Speaker 03:
So the plaintiff, then the court is faced with this complaint.

[00:19:11] Speaker 03:
The in opposition to the motion to dismiss the plaintiffs again themselves characterize the second amended complaint.

[00:19:22] Speaker 03:
This is on excerpt of record 1440.

[00:19:24] Speaker 03:
They characterize the second amended complaint as identifying the challenged practices that show a causal relationships.

[00:19:33] Speaker 03:
And then they say, in the cases of women UPSers, management does not follow the procedure set out in its code uniformly in that manner given accommodation without needing to turn in an ADA form and without contacting HR.

[00:19:46] Speaker 03:
So, and then they do the same in opposition to the motion for summary judgment where they frame it as, themselves frame it as a gender biased accommodation, essentially a gender tainted accommodation process.

[00:20:00] Speaker 03:
And then they do the same in the opening brief on the appeal.

[00:20:03] Speaker 03:
So the court did not do something and pull something out of thin air.

[00:20:08] Speaker 03:
The court was looking at claims that are pled, which were Title VII and FIHA claims, which require exhaustion of administrative remedies.

[00:20:18] Speaker 03:
So the court was looking at the Second Amendment complaints and then looking at the CRD charges and EEOC charges, comparing the two to figure out what can proceed forward.

[00:20:30] Speaker 03:
What is here that we can salvage to allow the plaintiffs to proceed forward because, of course, defense was moving to dismiss the entire case?

[00:20:39] Speaker 02:
So I guess I'm getting lost in your answer.

[00:20:40] Speaker 02:
Are you saying that plaintiffs did not allege that Ms.

[00:20:45] Speaker 02:
Goins, for example,

[00:20:47] Speaker 02:
did not receive an accommodation but a male employee did?

[00:20:51] Speaker 03:
No, I am not.

[00:20:52] Speaker 02:
I am... Okay, so let's just... So given that, right, an allegation of disparate treatment on the basis of sex, was it a mistake for the district court to focus only on the fact that she was not given an accommodation as opposed to doing a...

[00:21:08] Speaker 02:
you know, a disparate treatment analysis and stuff.

[00:21:12] Speaker 02:
Because as I see ER 32, the court starts getting into a notion of is the failure to accommodate a colorable adverse employment action as opposed to was the disparate treatment between two different employees a viable, a colorable claim?

[00:21:30] Speaker 03:
So the court only does that as part of its analysis of the gender discrimination claims.

[00:21:35] Speaker 03:
So the court, my point, Your Honor, in answering your question

[00:21:38] Speaker 03:
going back to the plaintiff's own allegations, is to rebut this idea that the court set them on this untenable journey from which no plaintiff could win.

[00:21:48] Speaker 03:
That is plaintiff's position here.

[00:21:50] Speaker 03:
that the court, the district court, made an error and set them on this journey from which nobody could recover.

[00:21:56] Speaker 03:
It hamstrung their discovery, it hamstrung their... And I'm not asking about that.

[00:22:01] Speaker 02:
I'm not saying the plaintiff set them on a course.

[00:22:03] Speaker 02:
All I'm asking is if the district court looked at this as just a pure reasonable accommodation claim, was that a problem?

[00:22:11] Speaker 02:
Because the allegation, at least some of the allegations were women were not given accommodations and men were.

[00:22:18] Speaker 03:
And the court

[00:22:20] Speaker 03:
to be clear, did not do that.

[00:22:21] Speaker 03:
The court did not look at it as an accommodation claim.

[00:22:25] Speaker 03:
In other words, there was no failure to accommodate claim pled.

[00:22:29] Speaker 03:
at all, right?

[00:22:30] Speaker 03:
A failure to accommodate claim would have its own elements.

[00:22:34] Speaker 02:
Let me just read.

[00:22:35] Speaker 02:
At ER 32, accordingly, Goins' adverse employment action arguments are limited to not being given easier work assignments or a helper, being given harder work, and otherwise not being accommodated for her knee injury.

[00:22:49] Speaker 02:
These arguments ultimately allege that UPS did not provide reasonable accommodations for her knee injury.

[00:22:56] Speaker 02:
There's nothing in here that talks about in comparison to men who did receive those accommodations.

[00:23:02] Speaker 03:
So when the court got to that part, that was part of the McDonnell Douglas analysis of the prima facie case of gender discrimination.

[00:23:10] Speaker 03:
That is how that opinion is structured.

[00:23:12] Speaker 03:
So for each plaintiff, the opinion is structured.

[00:23:15] Speaker 03:
There are claims for Title VII, which of course does not even have a disability component, right?

[00:23:20] Speaker 03:
A Title VII discrimination claim does not have a disability component.

[00:23:24] Speaker 03:
which does provide for disability discrimination technically.

[00:23:29] Speaker 03:
But it's all structured as there is a gender discrimination claim under either FIHA or Title VII.

[00:23:36] Speaker 03:
Then for the plaintiff, Joan Jackson, there is an Equal Pay Act.

[00:23:46] Speaker 03:
and the California Pay Act.

[00:23:47] Speaker 02:
Let me ask it this way.

[00:23:49] Speaker 02:
Why isn't there a colorable claim for disparate treatment based on men receiving accommodation and these plaintiffs not?

[00:23:58] Speaker 03:
So in the discussion related to adverse employment actions, so first of all in this case there's not a colorable claim that any of the plaintiffs have because they could not, the court had concluded properly in our opinion that they could not meet the

[00:24:15] Speaker 03:
They were not qualified for their job in the case of the, none of them identified similarly situated employees.

[00:24:23] Speaker 03:
So none of them had met two, at least two of the four elements of the prima facie case.

[00:24:28] Speaker 03:
And then the court also concluded that they did not meet their elements on pretext.

[00:24:32] Speaker 03:
I mean, this court analyzed every single thing.

[00:24:35] Speaker 03:
It did not stop at any point.

[00:24:38] Speaker 02:
It gave alternate arguments.

[00:24:39] Speaker 02:
I understand, but why is it not a colorable claim?

[00:24:42] Speaker 03:
So as for the whether or not

[00:24:45] Speaker 03:
A failure to accommodate can, so it's not the claim of failure to accommodate as a gender discrimination.

[00:24:54] Speaker 03:
What this court in this motion for summary judgment decided is that an alleged denial of an accommodation, even if gender tainted, is not, as a matter of law, an adverse employment action, does not satisfy the adverse employment action prong of the McDonnell Douglas standard.

[00:25:14] Speaker 03:
That is what Judge Hamilton concluded.

[00:25:17] Speaker 03:
And then she concluded that based on a number of cases.

[00:25:21] Speaker 03:
She cited, I think, about two pages worth of cases.

[00:25:24] Speaker 02:
But isn't that incorrect under Muldrow?

[00:25:27] Speaker 02:
I mean, in Muldrow, Justice Kagan mentioned that transferring someone to a different place, if it's done disparately, is enough to create an adverse employment action.

[00:25:36] Speaker 02:
It doesn't have to be a significant harm.

[00:25:39] Speaker 02:
It just has to be the disparate treatment.

[00:25:41] Speaker 03:
So under Maldro, it does not impact that particular piece of the analysis.

[00:25:46] Speaker 03:
Under Maldro, so Maldro, following Maldro, what appears to no longer be the case is the chain conclusion that there has to be a material change in a job.

[00:25:56] Speaker 03:
So that seems to be the difference.

[00:25:59] Speaker 03:
Now that's not, that's sort of a distinction without a difference for purposes of this case, because again, in this particular case, the court looked at the adverse employment action from two points of view.

[00:26:10] Speaker 03:
One was as a matter of law is something an adverse employment action.

[00:26:16] Speaker 03:
And she did that not by looking at whether a change is material or not material.

[00:26:22] Speaker 03:
That's implicating Muldrow.

[00:26:24] Speaker 03:
She looked at it just simply as does failure to accommodate somebody, does that rise to, is that as a matter of law an adverse employment action under the disability statutes?

[00:26:39] Speaker 03:
And she concluded, based on the authority cited that, like I said, there's about two pages worth of it, Doe and Barnett being two of them, that no court, no court has concluded that a failure to accommodate is an adverse employment action.

[00:26:53] Speaker 02:
Right.

[00:26:54] Speaker 02:
Let me ask you this.

[00:26:57] Speaker 02:
For Ms.

[00:26:57] Speaker 02:
Jones-Jackson, there was a finding that she was not qualified for her work.

[00:27:03] Speaker 02:
But as I understand it, she's been working at UPS, I suppose, part-time for 25 years.

[00:27:08] Speaker 02:
So why can't we infer that she's qualified for her position on the basis of that alone?

[00:27:14] Speaker 02:
I mean, how could she work at UPS for 25 years if she weren't qualified for her position?

[00:27:21] Speaker 03:
For all of this, Your Honor, there is lots of things in the... I know, but just answer this.

[00:27:28] Speaker 02:
I know there are lots of things.

[00:27:29] Speaker 02:
I know there are different off-ramps and everything else, but just answer that question.

[00:27:32] Speaker 03:
No, no, no.

[00:27:33] Speaker 03:
So in this case, there was no evidence that was presented by plaintiff John Jackson to suggest that she was qualified for the position that she was particularly seeking, she was arguing about in... Let me just make sure I find the specific conclusion.

[00:27:58] Speaker 03:
Let's see.

[00:28:08] Speaker 03:
So the court concluded, so this is on ER 48.

[00:28:11] Speaker 03:
The court concluded that plaintiff Jones Jackson argues that she was qualified because she was doing her job.

[00:28:19] Speaker 03:
But then the court said the plaintiff here provides a coherent

[00:28:23] Speaker 03:
coherent citation to evidence.

[00:28:25] Speaker 03:
However, the paragraphs of Jones Jackson's declaration that she cites are completely irrelevant to the argument presented in the brief and do not support the claim that she's qualified.

[00:28:34] Speaker 03:
So in this case,

[00:28:35] Speaker 03:
It was a failure of evidence.

[00:28:37] Speaker 03:
In other words, plaintiff did not provide sufficient evidence.

[00:28:39] Speaker 02:
And so my question is, if she's worked at UPS for 25 years seeking a full-time position, why couldn't we?

[00:28:47] Speaker 02:
Why doesn't that allow us to make a reasonable inference that she was qualified in order to surpass at least a low threshold for a prima facie case?

[00:28:58] Speaker 03:
Because, Your Honor, for plaintiff Jones-Jackson, if I'm recalling the record correctly, there was a sheet

[00:29:05] Speaker 03:
The jobs in small sort have specific weight lifting limitations and each of the plaintiffs, none of the plaintiffs at the time of this case was pending or at the time of the summary judgment decision or briefing, none of them were actually working.

[00:29:24] Speaker 03:
They were all on leaves of absences.

[00:29:27] Speaker 03:
Because they could not lift the requisite amount of weight so having worked at ups for a long time does not necessarily Mean that any particular given a point in time you can do the physical job So that's where the and then the judge said there is an absence of fact of in the record and and I have very little time And I just want to point out your honor is that this particular?

[00:29:53] Speaker 03:
Defect in the briefing below continues through the appellate briefing.

[00:29:58] Speaker 03:
There are citations in the appellate brief that either misrepresent the record or do not actually rise to the level, well, really do not represent the record correctly.

[00:30:10] Speaker 03:
For instance, in the opening brief on page 33, there is ostensibly a quotation from the court.

[00:30:16] Speaker 03:
It is not.

[00:30:17] Speaker 03:
It is my quote.

[00:30:18] Speaker 03:
It's a quotation of me from the argument.

[00:30:21] Speaker 03:
And there are references to the record that are represented as evidence, but are actually argument from the ruling below, or just simply briefs.

[00:30:34] Speaker 03:
They're not deposition citations or anything like that.

[00:30:37] Speaker 03:
Thank you, Your Honor.

[00:30:38] Speaker 00:
Thank you, Counsel.

[00:30:39] Speaker 00:
Your Buttle.

[00:30:48] Speaker 00:
So I just wanted to set the record straight.

[00:30:50] Speaker 00:
The case is Norton versus Matthew, and that was in my brief, 427 US 524.

[00:30:55] Speaker 00:
And in that case, the Supreme Court said that they could disturb a ruling that was otherwise favorable to correct procedural errors.

[00:31:03] Speaker 00:
And that's what we're asking this court to do, because there was a major procedural error in which my case was framed as one as a failure to accommodate when it was a discrimination claim based on gender.

[00:31:16] Speaker 00:
And we're not saying that the accommodation itself was what we were arguing about.

[00:31:21] Speaker 00:
It was the failure to give it in an equal fashion because my clients happen to be female.

[00:31:28] Speaker 00:
Thank you, counsel.

[00:31:29] Speaker 00:
Any other questions?

[00:31:30] Speaker 00:
Thank you to both counsel for your helpful arguments.

[00:31:32] Speaker 00:
The case just argued is submitted for decision by the court.