[00:00:00] Speaker 04:
Golden versus Mayorkas case to come forward, please.

[00:00:52] Speaker 02:
Good morning your honor.

[00:00:54] Speaker 02:
I would like to reserve four minutes for rebuttal Go ahead.

[00:00:58] Speaker 02:
I am James golden discourage.

[00:01:00] Speaker 01:
Are you related to Alexander?

[00:01:02] Speaker 02:
That's in the first line of my notes.

[00:01:04] Speaker 02:
I'm counsel for the plaintiff Alexander golden Alex is my son Alex is autistic This case has expert witness evidence that is unusual and probably unique

[00:01:21] Speaker 02:
Alex was fired by the Department of Homeland Security because they accused him of lying.

[00:01:29] Speaker 02:
That happened in January and February of 2022.

[00:01:34] Speaker 02:
Alex told them, when they first told, accused him of lying, that he didn't lie, that he had made a mistake.

[00:01:44] Speaker 02:
He had told them when he applied for the job in 2019, two and a half years earlier,

[00:01:51] Speaker 02:
that he was disabled.

[00:01:52] Speaker 02:
He told them in writing that he was disabled and that he was autistic.

[00:01:57] Speaker 02:
When they accused him of lying, he said, I made this mistake because I was upset and because I am autistic.

[00:02:08] Speaker 02:
I didn't lie.

[00:02:09] Speaker 04:
All right.

[00:02:10] Speaker 04:
Let's go through what he actually said, because I'm having difficulty seeing how this is just a spatial memory issue.

[00:02:19] Speaker 04:
So in his email of September 28th at 821 a.m., he says, hello, it was around 430 last night as I was descending the stairs at the Los Angeles street entrance.

[00:02:33] Speaker 04:
I lost my footing, fell two step and landed on my left shoulder.

[00:02:38] Speaker 04:
My ankles were also injured.

[00:02:39] Speaker 04:
I was able to stand up and walk to my bus stop on Hill Street.

[00:02:43] Speaker 04:
But since last night, the pain in my shoulder has gotten worse.

[00:02:48] Speaker 04:
Then in his worker's comp thing, I guess it's a form, form CA-1, for the place where the injury occurred, he lists the 300 North Los Angeles Street Federal Building, 300 North Los Angeles Street, and he says cause of injury.

[00:03:06] Speaker 04:
Quote, leaving the office, I fell down concrete steps.

[00:03:11] Speaker 04:
And then he actually does a reenactment

[00:03:14] Speaker 04:
of his injury.

[00:03:16] Speaker 04:
On the morning of September 30th, he goes to where it happened, and he goes with Maureen Killian Larios, who's a supervisor.

[00:03:29] Speaker 04:
And he walks from his workspace in the Federal Building Room 1001, exits the Federal Building through the front doors onto Los Angeles streets.

[00:03:41] Speaker 04:
And I'm going to just quote from here, from the declaration.

[00:03:44] Speaker 04:
Quote, he and I walked to the top of the stairs about four feet to the left was the handrail at the center of the stairs.

[00:03:51] Speaker 04:
Mr. Golden told me he was about three feet away from the handrails when he started down the stairs.

[00:03:57] Speaker 04:
He showed me where he was when he stated he fell down the stairs and told me that he slipped on the first or second step in front of the federal building and fell several steps.

[00:04:09] Speaker 04:
He then stated that he got up and continued on his way home.

[00:04:14] Speaker 04:
So I guess I am unclear on how he would be able to do a complete

[00:04:27] Speaker 04:
demonstration of exactly where he was, how many feet he was from the handrail, which step he fell on, how many steps he fell further, and then he got up and continued on his way home.

[00:04:43] Speaker 04:
So I guess I'm looking at all of this, and for me I am,

[00:04:48] Speaker 04:
wondering about lack of candor.

[00:04:52] Speaker 04:
Okay?

[00:04:52] Speaker 04:
And then if you add on the fact that after his email exchange, the September 28th one that I read into the record, it says, Mr. Golden was concerned about paying for his medical care since he did not have any medical insurance in California.

[00:05:09] Speaker 04:
He asked me whether his insurance through USCIS would cover medical care that he needed for the September 27, 2021 fall.

[00:05:17] Speaker 04:
He informed me that he had not heard back from USCIS headquarters about his insurance coverage and that he only had out-of-state insurance.

[00:05:26] Speaker 04:
Following the conversation, then...

[00:05:28] Speaker 04:
This is Ms.

[00:05:29] Speaker 04:
Rosalynn Carter, contacts USCIS headquarters to verify whether Mr. Golden had health insurance through USCIS.

[00:05:38] Speaker 04:
She later discovered that his medical insurance provided through his job at USCIS had not started because he had not completed his necessary insurance paperwork and submitted it to USCIS.

[00:05:51] Speaker 04:
So if I look at all of this evidence, tell me why there's no lack of candor here.

[00:05:58] Speaker 02:
Because he's autistic.

[00:06:00] Speaker 02:
That's why.

[00:06:02] Speaker 02:
He fell down.

[00:06:03] Speaker 02:
That was traumatic.

[00:06:04] Speaker 02:
He waited two years for this job that had been offered to him in 2019.

[00:06:11] Speaker 02:
He started in 2021.

[00:06:13] Speaker 02:
Two years.

[00:06:13] Speaker 04:
So all autistic people then have a lack of candor disability?

[00:06:19] Speaker 04:
Is that the equation that you're drawing here?

[00:06:26] Speaker 04:
How can you do a complete reenactment, a complete reenactment with very specific details?

[00:06:34] Speaker 04:
How far I am from the handrail?

[00:06:36] Speaker 04:
Which step did I fall on?

[00:06:38] Speaker 04:
Exactly how many steps did I fall down?

[00:06:40] Speaker 04:
How can you do that detailed reenactment?

[00:06:45] Speaker 02:
as I will explain, and there are two expert witnesses in this case, which is the result of what they wrote is what makes it unique.

[00:06:54] Speaker 02:
But here are the answers to your question.

[00:06:56] Speaker 02:
The first is that there were two sets of stairs.

[00:06:59] Speaker 02:
One was across the street.

[00:07:00] Speaker 02:
They were similar.

[00:07:02] Speaker 04:
His autism, in addition to falling down, is what... What is in the record that the stairs are identical?

[00:07:13] Speaker 04:
The food court in between the courthouse and the, I don't think those are identical stairs, but tell me where in the record it says that those are identical.

[00:07:21] Speaker 02:
They're similar.

[00:07:23] Speaker 02:
I don't know where that is in the record.

[00:07:25] Speaker 02:
That's not the most important part.

[00:07:27] Speaker 02:
The most important part is what autism is.

[00:07:31] Speaker 02:
Non-physical disabilities are hard for people to understand.

[00:07:35] Speaker 02:
There's an EEOC report in the record that explains that.

[00:07:40] Speaker 02:
And here's what you do when you have a situation like this.

[00:07:44] Speaker 04:
So tell me exactly what the autism does with his memory.

[00:07:49] Speaker 04:
What does it do with his memory?

[00:07:51] Speaker 04:
And then let's talk about how that would not implicate whether he can do his job.

[00:07:56] Speaker 02:
So the answer to the question about the autism is we have an autism expert who submitted an expert report.

[00:08:05] Speaker 02:
In that expert report, she explains the way some autistic people process information.

[00:08:12] Speaker 02:
Her conclusion is she wrote, this is Catherine Lord, Catherine Lord wrote, it is her opinion

[00:08:20] Speaker 02:
that arising from his autism, Alex had a false recollection of the location of the fall, which continues to this day, and that he believed the location he reported was correct.

[00:08:33] Speaker 02:
Alex did not lie.

[00:08:34] Speaker 04:
Now, if there were any question among all... Can I ask you something with the re-enactment?

[00:08:41] Speaker 04:
Was all of that accurate except for the location or were some of the other details also inaccurate?

[00:08:48] Speaker 04:
Like the three to four feet from the handrail, which step I fell down on, how many steps I fell down.

[00:08:54] Speaker 04:
Is the entire reenactment inaccurate because of the autism or just the location?

[00:08:59] Speaker 02:
The expert report says

[00:09:02] Speaker 02:
that it is common for people with autism to remember very narrow details, but not something broader.

[00:09:11] Speaker 02:
And now we get to the most important thing.

[00:09:13] Speaker 02:
If there were any question among experts who actually know about autism, you would expect that Homeland Security would have obtained an expert, which they did, who said, this is a crock.

[00:09:29] Speaker 02:
I don't believe this.

[00:09:31] Speaker 02:
But that's not what happened.

[00:09:32] Speaker 02:
And that's what makes this part of this case, in my experience, my research, unique.

[00:09:39] Speaker 02:
Here's what Homeland Security's expert wrote.

[00:09:44] Speaker 02:
And I can't emphasize this enough.

[00:09:45] Speaker 02:
This is Homeland Security's expert.

[00:09:49] Speaker 02:
I do not dispute Dr. Lord's conclusion that Alex has autism.

[00:09:57] Speaker 02:
Dr. Lord presented, this is the Homeland Security expert talking about Dr. Lord.

[00:10:03] Speaker 02:
Dr. Lord presented a logical and scientific explanation for Alex's poor recall.

[00:10:10] Speaker 02:
And here's the kicker.

[00:10:11] Speaker 02:
Here's what Homeland Security's expert wrote.

[00:10:15] Speaker 02:
Thus, I do not dispute her statement that Alex Golden did not lie about the incident on September 27, 2021.

[00:10:25] Speaker 02:
He simply was upset and confused and did not recollect the spot where the incident happened.

[00:10:32] Speaker 02:
That ends all of the inquiry.

[00:10:35] Speaker 04:
Okay, let me ask you a question.

[00:10:37] Speaker 04:
Your son was an immigration services officer.

[00:10:41] Speaker 04:
His job is to grant or deny

[00:10:43] Speaker 04:
complex and highly sensitive immigration applications for immigration benefits that are important to the applicants.

[00:10:52] Speaker 04:
I'm just looking at the job description, ER 357.

[00:10:55] Speaker 04:
It's to interview applicants and petitioners, elicit their statements, assess their credibility, analyze the information, to identify the facts that form the basis for determining the eligibility for immigration benefits, doing the security checks, and it just goes on at ER 357.

[00:11:14] Speaker 04:
So if there is an inability to recall broader things and only to focus on narrow details and generally have poor recall, then how does that not present an issue for whether he could perform this particular job?

[00:11:32] Speaker 02:
It doesn't because falling down and remembering where you fell is not an essential function of the job.

[00:11:40] Speaker 02:
What you're saying, Your Honor, is what was not described incorrectly in Homeland Security's brief.

[00:11:46] Speaker 02:
That's what the section of the ADA, which is what applies to this even though the Rehabilitation Act controls it, calls the business necessity defense.

[00:11:59] Speaker 02:
The business necessity defense is where the employer says, we have a business necessity so we can't have somebody like this working for us.

[00:12:09] Speaker 02:
More importantly, though, is that that's never what Homeland Security really said.

[00:12:16] Speaker 02:
For almost three years, Homeland Security said, Alex, you're not autistic.

[00:12:23] Speaker 02:
You're just a liar.

[00:12:24] Speaker 02:
And when they talked about his qualifications, they say, you're not qualified because you're a liar.

[00:12:30] Speaker 02:
Except it is undisputed.

[00:12:32] Speaker 02:
The testimony from our expert and from Homeland Security's expert is undisputed.

[00:12:38] Speaker 02:
that he didn't lie.

[00:12:40] Speaker 02:
That's what Homeland Security's expert says.

[00:12:42] Speaker 02:
So for purposes of a court's analysis of this case, it doesn't matter what individual judges think personally about what might or might not be caused by autism.

[00:12:56] Speaker 02:
Because two experts, and this is unheard of by me, where the defense expert says, I agree with the plaintiff's expert, and that's really

[00:13:07] Speaker 02:
That's really the end of the case.

[00:13:08] Speaker 02:
I see I'm down to less than three minutes, so I'll keep my three minutes for rebuttal.

[00:13:18] Speaker 04:
I actually have another question for you.

[00:13:21] Speaker 04:
You rely on a Fifth Circuit case, which relies on a Ninth Circuit case head, to argue that the autism only is

[00:13:29] Speaker 04:
necessary to make a difference in the outcome.

[00:13:32] Speaker 04:
But the Ninth Circuit overruled that causation standard and required a but-for standard in a subsequent case.

[00:13:40] Speaker 04:
So do you acknowledge that the but-for causation is the proper standard on your disability?

[00:13:45] Speaker 02:
No, the evolution of that standard through Head and Pinkerton.

[00:13:51] Speaker 04:
Head is 2005.

[00:13:52] Speaker 04:
Murray, which I'm relying on for the but-for causation, is 2019.

[00:13:55] Speaker 02:
Yes.

[00:13:57] Speaker 02:
I cannot tell you the exact chronology.

[00:14:01] Speaker 02:
But what I can tell you is that two Ninth Circuit cases, Humphrey and Gambini, which are part of the Ninth Circuit jury instructions, say this is the Ninth Circuit jury instruction 12.1 ADA employment action.

[00:14:19] Speaker 02:
And it says, this is the jury instruction.

[00:14:23] Speaker 02:
The plaintiff was discharged.

[00:14:27] Speaker 02:
inserts, was discharged because of his physical or mental impairment.

[00:14:36] Speaker 02:
That is, when you look at the Ninth Circuit jury instructions, that is based entirely on Humphrey versus Memorial Hospitals, Gambini versus Total Renal Care, and what those two cases say most importantly, this is from Humphrey.

[00:14:54] Speaker 02:
For purposes of the ADA, with a few exceptions, conduct resulting from a disability, that's what we have here.

[00:15:02] Speaker 02:
He had a mistake of recollection because of his autism, agreed by the two experts.

[00:15:10] Speaker 02:
Conduct resulting from a disability is considered to be part of the disability rather than a separate basis for termination.

[00:15:19] Speaker 02:
And then Humphrey goes on to say,

[00:15:22] Speaker 02:
This is what decides the case.

[00:15:25] Speaker 02:
Where a person is fired because of conduct related to a disability.

[00:15:31] Speaker 02:
Alex's mistake.

[00:15:32] Speaker 02:
Conduct related to a disability.

[00:15:35] Speaker 02:
The employer has fired the employee because of her disability.

[00:15:41] Speaker 02:
So the standard for the ADA, the Rehabilitation Act, is, was the plaintiff fired because of his disability?

[00:15:53] Speaker 02:
Now, if you were to apply for a test, which is stricter, although that's not the Ninth Circuit Jury instructions,

[00:16:01] Speaker 02:
still mad because the facts are really, really so simple.

[00:16:06] Speaker 02:
The two experts said he didn't lie.

[00:16:09] Speaker 02:
He made a mistake.

[00:16:10] Speaker 02:
Those facts are undisputed.

[00:16:12] Speaker 02:
That's really the end of the discrimination case.

[00:16:17] Speaker 04:
All right.

[00:16:18] Speaker 04:
Thank you.

[00:16:18] Speaker 04:
I'll give you two minutes.

[00:16:19] Speaker 04:
You have 17 seconds left.

[00:16:21] Speaker 04:
I'll give you two minutes for rebuttal.

[00:16:33] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:16:35] Speaker 00:
AUSA Trent Fuji on behalf of the Secretary of Homeland Security.

[00:16:39] Speaker 00:
Immigration services officers are a public trust role that requires accuracy and candor.

[00:16:45] Speaker 00:
The Rehabilitation Act isn't a sword.

[00:16:48] Speaker 04:
So your expert conceded that Mr. Golden didn't lie.

[00:16:51] Speaker 00:
No, Your Honor.

[00:16:52] Speaker 04:
So then why doesn't that just defeat any justification for termination based on lack of candor?

[00:16:58] Speaker 00:
No, Your Honor.

[00:16:58] Speaker 00:
Our expert stated that she did not dispute the conclusion by Dr. Lord, given that she did not conduct an IME or examination of plaintiff.

[00:17:07] Speaker 00:
She was assuming those facts to be true regarding whether or not he lied on the step.

[00:17:11] Speaker 04:
She says, I do not dispute Dr. Nassif's conclusion that Alex did not lie per se.

[00:17:17] Speaker 00:
That's correct, Your Honor.

[00:17:17] Speaker 00:
She did not dispute that.

[00:17:18] Speaker 00:
And so it's not as if she agrees he did not lie, but she's just not disputing that fact for the purposes of her report.

[00:17:25] Speaker 01:
Well, but that just leaves undisputed basically for summary judgment purposes that he didn't lie.

[00:17:30] Speaker 00:
I don't think that's where the case turns, Your Honor, because under the McDonnell Douglas burden-shifting factors, plaintiff still has to prove that, one, he is qualified to have the position with or without an accommodation.

[00:17:41] Speaker 00:
So even if we assume for the sake of argument that Mr. Golden did not lie, then he still has to prove that he is qualified to be an immigration services officer.

[00:17:51] Speaker 01:
Okay, and he was hired after presumably a fairly rigorous thing, so obviously the agency thought he was qualified.

[00:17:58] Speaker 00:
I think there's a distinction though, Your Honor, especially under Anthony V. Tracks, where you have to be qualified at the time of termination.

[00:18:05] Speaker 00:
And this misstatement occurred two weeks on the job.

[00:18:09] Speaker 00:
And so the agency was unaware that Mr. Golden suffers from inaccurate recall, as Dr. Lord describes it.

[00:18:15] Speaker 00:
that he suffers from false memories.

[00:18:17] Speaker 00:
That was due to a trauma.

[00:18:19] Speaker 01:
How does that prove that he still couldn't accurately put down information that was just in a normal interview setting?

[00:18:26] Speaker 00:
Well, Your Honor, I think the record does reflect that being an immigration services officer can be a difficult job and that they are interacting with the public during immigration interviews.

[00:18:36] Speaker 00:
these interviews can become contentious.

[00:18:38] Speaker 01:
That's not the same as falling down steps and having trauma and hurting yourself.

[00:18:43] Speaker 00:
I understand that, Your Honor, and point taken, but I think in terms of the material misstatements that were made, that there is no way for Mr. Golden to even be put on notice that he made this material misstatement when he continually repeated it over and over again.

[00:18:59] Speaker 00:
whether in person when he recreated the fall with his supervisor, whether it was multiple times in writing and it wasn't until January 4th when he was confronted with the evidence of the video where he said, it may have been resulted due to my autism.

[00:19:13] Speaker 00:
But to this day, he still recalls that he fell on federal property.

[00:19:18] Speaker 04:
So why shouldn't we find that your qualifications rationale isn't pretext?

[00:19:24] Speaker 04:
Because in the termination letter, it says, you know, I find that you lack candor, not only to your supervisor, but also to Killian Larios when you describe your accident to them.

[00:19:34] Speaker 04:
As an immigration services officer, you occupy a position of trust.

[00:19:39] Speaker 04:
and are expected to represent the agency with integrity and in a manner that is above reproach, your actions betrayed this expectation.

[00:19:46] Speaker 04:
I don't see anything in the termination letter saying, because of your lack of candor, we find that you are no longer

[00:19:54] Speaker 04:
And if I look at the deposition testimony of Nancy Albee, she says, yep, I'm the one that decided to fire him.

[00:20:02] Speaker 04:
And she says, in your termination letter, you said he was a liar.

[00:20:07] Speaker 04:
Answer, yes.

[00:20:08] Speaker 04:
Question, yes.

[00:20:08] Speaker 04:
And you fired him because you concluded he was a liar.

[00:20:11] Speaker 04:
Answer, yes.

[00:20:12] Speaker 04:
OK.

[00:20:13] Speaker 04:
And for no other reason, right?

[00:20:15] Speaker 04:
Answer, conduct, correct.

[00:20:17] Speaker 04:
Question, that you fired him only because you concluded he was a liar, right?

[00:20:20] Speaker 04:
Answer, yes.

[00:20:22] Speaker 04:
So if you have all of these statements that they fired him solely because he's a liar, how can you now come in and say, oh no, we fired him because he's not qualified for the job?

[00:20:33] Speaker 00:
That's not what the government is arguing, Your Honor.

[00:20:35] Speaker 00:
We're arguing, yes, he was terminated for lack of candor, as it says in the termination letter.

[00:20:41] Speaker 00:
But on summary judgment, the McDonnell Douglas burden shifting factors still apply.

[00:20:48] Speaker 00:
And plaintiff still has the burden of showing that he has to have a prima facie case.

[00:20:53] Speaker 00:
And so he has to prove that he is qualified at the time of termination.

[00:20:57] Speaker 00:
And it's not pretext for the government to rebut.

[00:21:00] Speaker 00:
that qualification of a plaintiff on summary judgment.

[00:21:05] Speaker 01:
The question is, though, has he truly failed to establish a prima facie case?

[00:21:11] Speaker 00:
Yes, Your Honor.

[00:21:11] Speaker 01:
Why do you think so?

[00:21:13] Speaker 00:
Because in order to be an immigration services officer, the record demonstrates that you must be able to accurately recall basic information.

[00:21:20] Speaker 00:
And by his own expert, which lists it as inaccurate recall or false memories, then he is unqualified to serve in that role.

[00:21:29] Speaker 01:
Well, but the expert didn't say false memories just in all aspects of his life.

[00:21:36] Speaker 01:
It just talked about a consequence of this fall.

[00:21:40] Speaker 00:
I understand, Your Honor, and I understand that they want to be characterized as spatial.

[00:21:44] Speaker 00:
But when you look at the evidence in the totality of what actually occurred and the multiple opportunities he had to correct his statement, he was given multiple opportunities over a several-month period, and you continually reaffirmed that misstatement.

[00:21:59] Speaker 01:
Well, but that's if, in fact, though, his autism causes him to fixate on where he thought that's going to continue indefinitely.

[00:22:07] Speaker 00:
And that's correct, Your Honor, and that's why he's unqualified, especially when... But why is he unqualified?

[00:22:11] Speaker 04:
If I look at the duties of an immigration services officer, I don't see anything here that requires good spatial memory.

[00:22:20] Speaker 00:
Correct, Your Honor.

[00:22:21] Speaker 00:
And that's why it's not spatial memory.

[00:22:24] Speaker 00:
It's to be able to accurately recall basic facts.

[00:22:28] Speaker 00:
And so as Catherine Lord wrote, he suffers from false memories.

[00:22:33] Speaker 00:
And so if you have an ISO that suffers from false memories, and during an interview, inaccurately recalls basic facts regarding an applicant, that could have disastrous consequences for those applicants.

[00:22:47] Speaker 00:
And the troubling thing on the behalf of the government is that there was no notice on behalf of plaintiff of whether or not he might have had a false memory.

[00:22:55] Speaker 00:
He continually reaffirmed that same misstatement over and over again.

[00:22:59] Speaker 04:
And during deposition, he stated... But he wasn't aware that he had a false memory until he learned that you all had a video showing that he was not actually where he said he was when he fell.

[00:23:10] Speaker 00:
That's correct, Your Honor.

[00:23:11] Speaker 00:
He wasn't aware.

[00:23:12] Speaker 00:
He didn't come to his attention.

[00:23:14] Speaker 00:
until he learned about this video.

[00:23:16] Speaker 00:
But there wasn't even an ink link.

[00:23:18] Speaker 00:
There wasn't sort of notice that his memory might not have been correct.

[00:23:22] Speaker 00:
And so in terms of a reasonable accommodation.

[00:23:24] Speaker 04:
But would you expect someone who has a spatial memory loss issue to be able to know that?

[00:23:30] Speaker 00:
I think if you were to have certain, for instance, if you were to come up with a reasonable accommodation, there's no, in the eyes of the agency, reasonable accommodation to assist him with this false memory, since there's no way for him to be on notice.

[00:23:44] Speaker 01:
Why did your agency not hire a better expert?

[00:23:48] Speaker 00:
I'm sorry, Your Honor.

[00:23:49] Speaker 00:
I'm not sure what you mean by that.

[00:23:50] Speaker 01:
Well, I mean, an expert that, like your opposing counsel said, an expert said, this is all hokey, that autism wouldn't cause this.

[00:23:57] Speaker 01:
He's an out and out liar.

[00:23:59] Speaker 00:
Well, Your Honor, our experts apply the facts as they see them.

[00:24:02] Speaker 00:
And so she believes, she assumed for the sake of this report, that he wasn't lying.

[00:24:07] Speaker 00:
But even if he wasn't lying, he is not qualified to have this job.

[00:24:11] Speaker 01:
Well, then that isn't the reason the agency gave, though, for firing.

[00:24:15] Speaker 01:
It was lack of candor is what it gave.

[00:24:18] Speaker 01:
And does that raise an inference that there's pretext here?

[00:24:21] Speaker 00:
No, Your Honor, that on summary judgment, the agency still is allowed to rebut whether or not a plaintiff is qualified.

[00:24:28] Speaker 00:
And so that is the actual analysis going on.

[00:24:31] Speaker 00:
At the time of termination, their legitimate reason was that he lacked candor or he lied.

[00:24:37] Speaker 01:
What's your best case?

[00:24:39] Speaker 01:
You think it closes on the facts to this?

[00:24:41] Speaker 00:
I think Pulitasi versus Wills, Your Honor, is our best case.

[00:24:44] Speaker 00:
That's an ICE agent with Guillain-Barre syndrome.

[00:24:47] Speaker 00:
And the court found that the plaintiff's physician's statement that he could perform essential functions with a reasonable accommodation

[00:24:54] Speaker 00:
didn't create a disputed fact that you have to really look at the position description.

[00:24:58] Speaker 00:
You have to look at the undisputed evidence by his supervisors who state that accurately recalling basic information is integral to being an immigration services officer.

[00:25:09] Speaker 01:
Is that syndrome a little bit different than the autism problem here?

[00:25:14] Speaker 00:
I think so, Your Honor.

[00:25:15] Speaker 00:
It's not directly on point that Guillain-Barre syndrome reflects some more of a physical disability.

[00:25:21] Speaker 00:
But here, as a mental disability, you must still accurately recall basic information during immigration services interviews when reviewing a files.

[00:25:31] Speaker 01:
And so there's any evidence for the two weeks he was on the job that the agency checked his interviews and his reports and say, ah, there's several discrepancies here.

[00:25:43] Speaker 00:
Given the fall occurred only two weeks after he was on the job, he wasn't already interviewing any applicants during that time.

[00:25:51] Speaker 04:
Why isn't this at least a jury question?

[00:25:54] Speaker 04:
You have a termination letter that says, we're firing you just because you're a liar.

[00:25:59] Speaker 04:
You have deposition testimony of the decision-makers saying, I fired him because he's a liar.

[00:26:04] Speaker 04:
And then now you're coming and your own expert says, he didn't lie.

[00:26:08] Speaker 04:
Why shouldn't this at least go to a jury?

[00:26:11] Speaker 00:
I don't think it goes through a jury, Your Honor, because there's been no evidence of pretext on the record.

[00:26:16] Speaker 00:
There's been no evidence that anyone conspired against Mr. Golden.

[00:26:20] Speaker 00:
And in fact, they gave him multiple opportunities to be able to correct his misstatement.

[00:26:24] Speaker 00:
And ultimately, when it comes to being qualified, it goes down to the basic fact that immigration services officers have a public trust role and that they need to be able to accurately convey basic information.

[00:26:38] Speaker 03:
The counsel, Judge Gould, I have a question for you.

[00:26:43] Speaker 03:
Why wouldn't it be more fair, instead of affirming, for us to remand to vacate and remand to the district court, specifying the fact issues that we think need to be determined?

[00:27:07] Speaker 00:
I think I understand your question, Your Honor.

[00:27:10] Speaker 00:
I don't believe the record demonstrates that there's any need for this to go to a jury trial.

[00:27:14] Speaker 00:
I think the record is clear in that Mr. Golden had multiple opportunities to correct his material misstatement.

[00:27:21] Speaker 00:
His own expert agrees that he suffers from inaccurate recall and he suffers from false memories.

[00:27:27] Speaker 00:
And so I don't believe there's any disputed material facts where this would require a jury trial.

[00:27:37] Speaker 00:
Unless the court has any further questions, we ask that you affirm.

[00:27:41] Speaker 04:
All right.

[00:27:42] Speaker 04:
Thank you, Mr. Golden.

[00:27:43] Speaker 04:
I'll give you two minutes.

[00:27:51] Speaker 02:
Council misstated Catherine Lord's expert report.

[00:27:58] Speaker 02:
It was happening too fast.

[00:27:59] Speaker 02:
I can't tell you every single misstatement.

[00:28:01] Speaker 02:
But he twisted the words.

[00:28:03] Speaker 02:
Most importantly, Catherine Lord didn't say that he has memory issues, like he walks around all day and has no idea where he is.

[00:28:13] Speaker 02:
That's not what she wrote.

[00:28:14] Speaker 02:
She wrote that in this instant, because of the combination of the trauma and his autism, with regard to the qualification issue,

[00:28:27] Speaker 02:
Once again, I'm going to rely on the defendant's expert.

[00:28:31] Speaker 02:
The defendant's expert wrote the- What Catherine Lord said.

[00:28:36] Speaker 04:
She said that his inaccuracy, his false recollection of where he fell, is directly linked to episodic memory deficits associated with autism.

[00:28:46] Speaker 02:
Yes.

[00:28:47] Speaker 02:
And that is what she wrote.

[00:28:50] Speaker 02:
That is not what counsel described the description of the way Alex's autism affects his memory.

[00:28:59] Speaker 02:
With respect to his qualifications, as you pointed out, Judge Gilman, what's involved in actually doing this job?

[00:29:07] Speaker 02:
This is what the expert for the defendant, again, highly unusual.

[00:29:13] Speaker 02:
The defendant's expert wrote the following.

[00:29:16] Speaker 02:
The evidence is clear.

[00:29:18] Speaker 02:
from the expert reports, from the assessment data obtained by Dr. Lord, and from Alex's job application and essays, that this is a very educated young man who writes well, who functions at a high level intellectually,

[00:29:36] Speaker 02:
and verbally, and who comports himself well enough to have been hired for a number of jobs in his adult life.

[00:29:44] Speaker 02:
And I'm going to finish.

[00:29:45] Speaker 02:
I only have a few seconds, but I'll say you have to look at the Rehabilitation Act, which is unique among discrimination statutes in that it imposes a duty on the federal government not just to not discriminate against

[00:30:05] Speaker 02:
people with disabilities in the conventional sense of treating them worse, like the sex and the race and the national order.

[00:30:14] Speaker 04:
I'm looking at just the Catherine Lord expert report.

[00:30:18] Speaker 04:
It says, autistic people typically have memory challenges, particularly in what is called episodic memory, or memory for everyday events.

[00:30:25] Speaker 04:
different aspects of an event such as what happened, when it happened, how it happened, where it happened, and how the person experiencing the event felt are put together after the fact to create a memory that is then recalled.

[00:30:37] Speaker 04:
Research has shown that autistic adults are particularly poor at recalling events in which they participated compared to those they observed.

[00:30:46] Speaker 04:
How would that not go to

[00:30:49] Speaker 04:
deciding whether someone is eligible for a very important immigration benefit.

[00:30:54] Speaker 02:
Because it doesn't relate to all of the skills involved in looking at applications and interviewing applicants.

[00:31:02] Speaker 02:
And to that point,

[00:31:04] Speaker 02:
The standard of behavior that's imposed on the federal government under the Rehabilitation Act is different from the other anti-discrimination statutes.

[00:31:14] Speaker 02:
It requires that the federal government be a model employer of people with disabilities and to have affirmative action programs.

[00:31:23] Speaker 04:
It's the only... He was asked, what accommodation do you want for your autism?

[00:31:26] Speaker 04:
He said, I don't need any.

[00:31:28] Speaker 02:
He doesn't need an accommodation.

[00:31:33] Speaker 02:
And in the case of Dark, I don't remember the last name, Dark against Curry County, Ninth Circuit case is completely clear that, as you questioned Judge Gilman, is completely clear that when an employer

[00:31:53] Speaker 02:
writes a long termination letter that they worked on for two months that says, we're firing you because you're a liar.

[00:32:00] Speaker 02:
They can't, after the fact, come up with another reason.

[00:32:05] Speaker 02:
I can't say, oh, well, you're not qualified anyway.

[00:32:09] Speaker 02:
That's exactly what happened in dark, and the defense was not even allowed to be permitted.

[00:32:14] Speaker 02:
It's not a question of Alex proving his qualifications.

[00:32:17] Speaker 02:
That's called the business necessity defense, and under CRIPE versus City of San Jose, that is most distinctly the burden of the employer, and the burden is very, very heavy.

[00:32:32] Speaker 02:
I think I've gone over my time.

[00:32:34] Speaker 02:
I'm happy to talk to you for an hour if the court wants, but I'll defer to the court on that.

[00:32:40] Speaker 04:
I don't have any further questions, but if Judge Gould does, go ahead, please.

[00:32:43] Speaker 03:
Judge Gould, I do have a question for you.

[00:32:47] Speaker 03:
Could we permissively vacate and remand for trial, but ask the district court to pose certain questions to the jury that had to be resolved?

[00:33:09] Speaker 02:
That certainly would be appropriate.

[00:33:12] Speaker 02:
We moved for summary judgment, and our request on appeal is that summary judgment on liability be entered in our favor, but certainly what Your Honor proposes is one resolution to the appeal.

[00:33:27] Speaker 03:
Okay, thank you.

[00:33:28] Speaker 02:
Thank you, Judge.

[00:33:29] Speaker 02:
Thank you all.

[00:33:29] Speaker 04:
Yes, you're three minutes, 37 seconds over time, but thank you so much to both counsel, very helpful arguments.

[00:33:36] Speaker 04:
Thank you very much.