[00:00:01] Speaker 03:
Good morning and welcome to the Ninth Circuit sitting in Phoenix.

[00:00:06] Speaker 03:
I'm Bridget Beatty and as many of you know this is my home city so my chambers are here and I'm very pleased today to be sitting with Judge Susan Graber from Portland and Judge Richard Tallman from Seattle now by way of Coeur d'Alene, Coeur d'Alene, Idaho.

[00:00:24] Speaker 03:
This morning we have two cases to argue, the others have been submitted.

[00:00:30] Speaker 03:
The first is Royston versus City of Scottsdale, case number 24-6530.

[00:00:38] Speaker 03:
And Council, whenever you're ready to proceed.

[00:00:44] Speaker 04:
Good morning, Your Honor.

[00:00:46] Speaker 04:
May it please the Court, my name is Sherry McCracken, and I have with me today Kimberly Eckert and Lisa Abashan, and my client, Nicole Royston.

[00:01:00] Speaker 04:
I would like to reserve five minutes if I may.

[00:01:03] Speaker 04:
We are here today because the District Court erred in finding that Ms.

[00:01:13] Speaker 04:
Royston was not a qualified disabled individual.

[00:01:21] Speaker 04:
that if she was a qualified disabled individual, she could not do the essential functions of the job, which were attendance.

[00:01:32] Speaker 04:
The attendance that was necessary was a day and a third a month.

[00:01:37] Speaker 04:
There were four days a month that were court days for what?

[00:01:42] Speaker 04:
Photo enforcement.

[00:01:44] Speaker 00:
Also, wasn't the overarching problem, though, the irregular attendance because of all of

[00:01:50] Speaker 00:
medical appointments and illnesses and so on.

[00:01:55] Speaker 00:
As I read the record, basically she was only working about half of the work year of 2080 hours.

[00:02:04] Speaker 04:
Well, but that's federally protected leave.

[00:02:08] Speaker 04:
She had FMLA leave and then she was out.

[00:02:12] Speaker 00:
That's not the, the, the thrust of my question though has to do with the employer is, is

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entitled to have an employee who regularly attends work.

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And because of all of her issues, she was unable to do that.

[00:02:26] Speaker 00:
So if that's the reason that the employer cites for determining that she's unable to do the job that they need done, where's the violation?

[00:02:43] Speaker 04:
The problem is that the long-term

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leave for childbirth and for the tumor and the cancer had all taken place and the cancer was now in remission.

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And then the last two times, and you'll notice that the statement of facts has double charges, Ms.

[00:03:07] Speaker 04:
Royston, for leave.

[00:03:09] Speaker 04:
It says she left, she had some absences

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between January of something and March 3rd, and then it says she had absences between February 17th and March 30th.

[00:03:25] Speaker 04:
Those overlap, so they were counted twice.

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But the other thing is that the employer knew that the absences that they held against her after they had given her the photo enforcement job were she had a tooth problem,

[00:03:45] Speaker 04:
and she had a reaction to a COVID vaccine.

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Neither of those are long-term or because of her disability.

[00:03:54] Speaker 00:
Let me tell you what- As I understood the record, there were timeliness concerns with regard to the discharge of some of these duties.

[00:04:05] Speaker 00:
For example, in the vehicle impound

[00:04:09] Speaker 00:
There's a state law that says that, you know, you have to provide some sort of an administrative hearing so that people can get their cars back.

[00:04:17] Speaker 00:
And in the photo enforcement, if you don't process the photos within a set period of time, you have to dismiss the citation.

[00:04:26] Speaker 04:
Yes, Your Honor, I think you're right.

[00:04:28] Speaker 04:
But first of all, this city closed the towing window every Friday and in all lunches.

[00:04:39] Speaker 04:
So they're saying that they always had to have someone there.

[00:04:43] Speaker 04:
Then they had it unmanned for 20 days.

[00:04:46] Speaker 00:
Wasn't there an issue with regard to, you need a certain amount of training in order to be, so you can't just put anybody on an emergency basis in those positions.

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You need somebody who's qualified and trained to do that job.

[00:05:01] Speaker 04:
And the city knew about these coming retirements.

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Nicole had told them over and over again

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Two people were not enough to staff it.

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They deliberately didn't have anyone trained until such time as she was the only person in the unit.

[00:05:19] Speaker 00:
But I think our counsel, I think our precedent says that the FMLS a and the ADA don't require the employer to

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allocate resources differently, or in essence, hire more people to do the job.

[00:05:37] Speaker 00:
That's a little further than Congress authorized the law to go.

[00:05:40] Speaker 04:
Well, what I would say is that good management is good management.

[00:05:49] Speaker 04:
And we know that the ADA allows reassignment, assignment to vacant jobs, restructuring.

[00:05:59] Speaker 04:
And what they're saying here really is, is that for a day and a third on their speculation that she had a perceived disability that would prevent her attendance and that... But it's more than just a, I guess where you and I are

[00:06:17] Speaker 00:
crossing one another is it's more than just attendance.

[00:06:21] Speaker 00:
It's the ability of the employer to backfill the position with somebody who's qualified to do that work if she's not able to be there.

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And that's the problem that I'm focusing on here.

[00:06:31] Speaker 04:
But it's their problem.

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They had months and years to train other people.

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And then with the photo enforcement one, after they gave her the job,

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They withdrew the job.

[00:06:47] Speaker 02:
They didn't fill that job for a year.

[00:06:51] Speaker 02:
Counsel, I'd like to ask a slightly different question, if I might, and that is, what is the adverse employment action?

[00:06:59] Speaker 02:
Your client was not dismissed.

[00:07:02] Speaker 02:
She was given a light duty desk job and eventually separated from the police department for medical reasons.

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being continuously employed but simply denied a transfer to a preferred position.

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Why is that an adverse action?

[00:07:28] Speaker 04:
It's an adverse action because they had her apply, they

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hired her for that position, they sent out a memo to everybody in the entire police department that she had the job and she was the only person that applied.

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And then humiliatingly, they said she didn't have the job.

[00:07:55] Speaker 02:
So embarrassment is, I mean, basically I'm hearing your argument being that being embarrassed by the turn of events of not

[00:08:05] Speaker 02:
getting the transfer that she expected, leaving aside whether it was justified to make that decision.

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Is that an adverse employment action within the meaning of these statutes?

[00:08:20] Speaker 04:
I believe so, and I believe that Muldrow supports that.

[00:08:24] Speaker 04:
Muldrow basically tells us that an adverse employment action really isn't very high or very much.

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And in the retaliation, we have Burlington

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which says anything that would prevent another complainant from coming forward or might adversely affect them is an adverse employment action for retaliation.

[00:08:52] Speaker 02:
I would ask that this court... Is that so even if there's an explanation that is not embarrassing?

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In other words, the employer's explanation here for the decision was business related.

[00:09:10] Speaker 02:
And I know that you think that's pretextual, but doesn't that affect your assertion that this was humiliating in some way?

[00:09:23] Speaker 04:
I don't think so.

[00:09:25] Speaker 04:
I mean, everybody tells us that Nicole was a stellar employee.

[00:09:33] Speaker 04:
that everybody liked her, that her superiors liked her, that she did a marvelous job.

[00:09:38] Speaker 02:
All the more reason that an explanation that there was a business reason for this change would not have affected people's view of her.

[00:09:49] Speaker 02:
They've got a two-week window here.

[00:09:52] Speaker 02:
Is there evidence in the record of other people being, as you say, humiliating your client?

[00:10:01] Speaker 04:
In ways, yes, I would look at the statement of facts, the Controverting Plaintiff Statement of Facts.

[00:10:09] Speaker 04:
And if you'll just bear with me for a minute, let me tell you what Lieutenant Piazza said about the job we're talking about.

[00:10:18] Speaker 04:
Remember that D. Piazza, who's like two levels up, contacted Nicole's fiance and said, have her apply for this job.

[00:10:28] Speaker 04:
I think it's great for her.

[00:10:29] Speaker 04:
Nobody ever said reasonable accommodation.

[00:10:32] Speaker 04:
Nobody ever said anything.

[00:10:35] Speaker 03:
Can you clarify a point?

[00:10:39] Speaker 03:
Your brief says that the plaintiff didn't request an accommodation, but the complaint says that she did.

[00:10:46] Speaker 03:
So are you saying that she requested an accommodation, a reasonable accommodation, and it wasn't allowed, or that she never requested an accommodation?

[00:10:54] Speaker 04:
Basically, what we're saying is under the ADA as amended,

[00:10:59] Speaker 04:
The criteria is that reasonable accommodation and an interactive process is necessary and there's an obligation for one when an employee asks or when there is knowledge that there may be a need.

[00:11:18] Speaker 03:
And so are you saying both of these apply?

[00:11:20] Speaker 03:
She asked and there was knowledge or she didn't?

[00:11:23] Speaker 04:
She never used the words reasonable accommodation.

[00:11:26] Speaker 04:
And I think the case law is clear that she doesn't have to use magic words.

[00:11:31] Speaker 00:
I thought the employer offered her a transfer to the patrol aid position.

[00:11:37] Speaker 04:
Without discussing it with her and without entering into an interactive process.

[00:11:42] Speaker 04:
They made lots of decisions about what her disability allegedly was, what they perceived it to be, what it wasn't.

[00:11:52] Speaker 00:
I thought I read in the record some testimony that they had

[00:11:56] Speaker 00:
They were going to take the job description and sit down with her and go through each line of the job description and say, in light of whatever your medical condition is, can you stand out in the hot sun directing traffic for 30 minutes?

[00:12:10] Speaker 04:
Basically, what they did is they stepped aside, they put her in patrol, her supervisor in patrol, put her on a 30 day desk duty.

[00:12:20] Speaker 04:
at which time she applied for light duty.

[00:12:23] Speaker 04:
Let me read this back to you, okay?

[00:12:26] Speaker 04:
This is what De Piazza, contacted plaintiff's fiance, Jim Nolan, to advise him of an opening in photo enforcement unit because he felt that position would be a good fit for plaintiff.

[00:12:41] Speaker 04:
The assignment allowed for greater flexibility, including work from home, flexible schedules, no window customer service requirements, and minimal in-person obligations.

[00:12:56] Speaker 04:
The photo enforcement job was something that we discussed during our meeting with Dawn for additional flexibility.

[00:13:04] Speaker 04:
But outside of the court dates and your court prep dates, there's a bit of flexibility because you can do a little work from home.

[00:13:14] Speaker 04:
You could come in early.

[00:13:15] Speaker 04:
You could stay late.

[00:13:17] Speaker 04:
There's no customer service.

[00:13:19] Speaker 03:
Does she need an accommodation where she works remotely or is she able to work in the office?

[00:13:25] Speaker 03:
She's able to work remotely.

[00:13:26] Speaker 03:
Not remotely.

[00:13:28] Speaker 03:
I mean, my question is, is that an accommodation that she required or required at the time or could she work

[00:13:33] Speaker 04:
At the office, she could work at the office, but the photo enforcement job didn't require that she work at the office and even suggested that they work remotely.

[00:13:44] Speaker 00:
Most of it could be done remotely for the days when she needed to be in court.

[00:13:49] Speaker 04:
Okay.

[00:13:50] Speaker 04:
And again, we have an absolute failure of the employers.

[00:13:55] Speaker 04:
obligation to enter into the interactive process.

[00:13:58] Speaker 00:
They decided that she couldn't be... The court days require her what?

[00:14:02] Speaker 00:
To authenticate the photos so that they're admissible against the driver.

[00:14:09] Speaker 04:
Okay.

[00:14:10] Speaker 04:
We're talking about one and a third days a month.

[00:14:15] Speaker 04:
We're talking about nobody ever went to her or the court and said, how can we do this?

[00:14:24] Speaker 04:
if you were absent on court days.

[00:14:27] Speaker 04:
She never got to do the job, so nobody knows whether she would be absent on those court days.

[00:14:34] Speaker 00:
This body can take... Well, you don't deny that there might be days when court was being held that, for medical reasons, she might not be able to come to court.

[00:14:42] Speaker 04:
True, but that happens to you and I, too.

[00:14:44] Speaker 00:
Well, yeah, but that's where I get back to the earlier questions.

[00:14:47] Speaker 00:
I asked you about whether or not there were people available that could cover for her, and I think the answer was no.

[00:14:52] Speaker 00:
It was a very limited number.

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of people who were trained to do that kind of work.

[00:14:57] Speaker 00:
And so if she couldn't come to court that day, the city might lose all those citations because there'd be no witness to authenticate the evidence.

[00:15:06] Speaker 04:
Well, there is 60 days on each photo enforcement ticket authorization.

[00:15:12] Speaker 04:
But the other thing is, is that the city has proven that they could have covered because they didn't fill the position.

[00:15:21] Speaker 04:
There were two other people in the unit.

[00:15:23] Speaker 04:
They were hiring her as a third.

[00:15:26] Speaker 04:
And then when they took the job away from her, they never hired the third at all for the next year.

[00:15:34] Speaker 04:
Therefore, proving that the court times could be covered.

[00:15:40] Speaker 04:
Also, no one even discussed virtual, and I understand that court, as judicial notice can be taken here, we all appear virtually in court over and over and over again.

[00:15:55] Speaker 04:
In fact, I had a Ninth Circuit argument where Judge Schroeder appeared virtually.

[00:16:01] Speaker 04:
So nobody ever explored how those one and a half days could be covered, whether she could trade with another employee.

[00:16:10] Speaker 04:
And they knew all about her absences when they offered her the job and advertised to the entire police department that.

[00:16:24] Speaker 03:
So Ms.

[00:16:24] Speaker 03:
McCracken, you're over time now and you wanted to reserve.

[00:16:27] Speaker 03:
What did you ask for three minutes?

[00:16:29] Speaker 03:
I asked for five, but I'm at 40 seconds.

[00:16:32] Speaker 03:
You're at 47 seconds over.

[00:16:35] Speaker 03:
The clock hit zero.

[00:16:36] Speaker 03:
It's going back up.

[00:16:37] Speaker 03:
So I will give you a couple of minutes on rebuttal.

[00:16:39] Speaker 04:
Okay, thank you, Your Honor.

[00:16:48] Speaker 01:
May it please the Court, my name is Lori Davis.

[00:16:50] Speaker 01:
With me at Council table is Attorney Stephanie Heidner.

[00:16:54] Speaker 01:
Together we represent the City of Scottsdale.

[00:16:56] Speaker 01:
I'd like to first address a couple of misstatements made by my opposing Council before I get started with the bulk of my argument.

[00:17:05] Speaker 01:
The first is that I'm sorry to interrupt you.

[00:17:08] Speaker 03:
Can I ask you to stay close to the microphones, please?

[00:17:10] Speaker 03:
When you move, we lose you.

[00:17:11] Speaker 03:
The microphones aren't very sensitive.

[00:17:13] Speaker 01:
My apologies.

[00:17:14] Speaker 01:
I thought my voice was too bolsterous.

[00:17:16] Speaker 01:
I was shying away from it.

[00:17:18] Speaker 01:
So the first misstatement

[00:17:20] Speaker 01:
is from Ms.

[00:17:21] Speaker 01:
McCracken is that there were double charges on her leave that's incorrect.

[00:17:26] Speaker 01:
Those are two separate calculations.

[00:17:28] Speaker 01:
And even if they were double charges, those were admitted facts.

[00:17:31] Speaker 01:
And so they are the facts as below.

[00:17:33] Speaker 01:
But they're not.

[00:17:34] Speaker 01:
They were different calculations for different time periods.

[00:17:37] Speaker 01:
As to the question of

[00:17:40] Speaker 01:
Lieutenant DiPiazza's statement to Detective Nolan about the availability of the photo enforcement job.

[00:17:48] Speaker 01:
What's critically important in this case is the timeline of events and what happened when.

[00:17:57] Speaker 01:
At that point, that was around December of 2020.

[00:18:00] Speaker 01:
Lieutenant DiPiazza was coming off of the August 2020 vacation discussion wherein Ms.

[00:18:07] Speaker 01:
Royston was expressing she wanted more flexibility.

[00:18:10] Speaker 01:
She wanted more time off.

[00:18:12] Speaker 01:
Those were vacation discussions.

[00:18:14] Speaker 01:
She was out on surgery leave.

[00:18:16] Speaker 01:
There was no reason for them to believe that she would not return to work full time as she did with no restrictions.

[00:18:23] Speaker 01:
And at that time, he's offering some flexibility for her

[00:18:26] Speaker 01:
to have a three-person unit as opposed to a two-person unit to give her some of that.

[00:18:31] Speaker 01:
He specifically states, if the court would again review his statement, he specifically states that there's a little bit of flexibility, there are some opportunities to work from home, but of course we need people in court for court days.

[00:18:46] Speaker 01:
That is the undisputed record.

[00:18:49] Speaker 01:
And further, as far as a virtual court hearing, that's nothing in the record.

[00:18:54] Speaker 01:
I don't think that there's any potential for virtual court hearings in photo enforcement and with tickets, at least at the time that it was happening.

[00:19:04] Speaker 01:
That's simply unknown.

[00:19:05] Speaker 01:
It's not in the record that counsel brought that up.

[00:19:08] Speaker 01:
But the undisputed facts here are that this was a staffing decision made by responsible management to meet statutory requirements and customer service obligations, just as Judge Tallman suggested earlier in the questioning.

[00:19:24] Speaker 01:
In the critical timeframe at issue here, which I believe is February 17, 2021, which is the day after she was placed on the PEU transfer list,

[00:19:34] Speaker 01:
To the end of March when the decision was made to transfer her out of vehicle impound, Planoff did not work 41% of the time.

[00:19:43] Speaker 01:
She took nine and a half days of leave out of 23 days of work, all while having been released to work full time with no restrictions.

[00:19:54] Speaker 01:
Simultaneously, as this court has already recognized, the units had lost personnel due to retirements.

[00:20:00] Speaker 01:
Photo enforcement had a backlog of photo enforcement tickets and had to enforce laws, especially related to the problem we were having with drag racing and fatalities in the city at the time.

[00:20:11] Speaker 01:
And the vehicle impound window had been closed due to plaintiffs' unpredictable last-minute call-outs.

[00:20:20] Speaker 01:
This prevented people from getting their cars.

[00:20:23] Speaker 01:
And that's something that affected operations at the PD.

[00:20:28] Speaker 01:
Now on top of all of that, it was reported that plaintiff had two surgeries upcoming.

[00:20:33] Speaker 01:
That was in the flyer that the plaintiff

[00:20:35] Speaker 01:
admitted that she proofed and approved of before it was released.

[00:20:39] Speaker 01:
She had two surgeries upcoming.

[00:20:41] Speaker 01:
So management was responsible to try to figure out a solution of how to keep the units functioning.

[00:20:46] Speaker 01:
So the decision was made to transfer her out of vehicle impound.

[00:20:51] Speaker 01:
To be clear, plaintiff did not want to stay in vehicle impound.

[00:20:55] Speaker 01:
She admitted that at Statement of Fact 154 and 213.

[00:20:59] Speaker 01:
She wanted to go to photo enforcement or to a station officer position.

[00:21:04] Speaker 01:
But she could not meet the essential functions of those positions of in-person attendance.

[00:21:10] Speaker 01:
So she was assigned to patrol.

[00:21:11] Speaker 03:
Where in the record can we find that in-person attendance was an essential function of the position?

[00:21:18] Speaker 03:
I understood plaintiff's argument to be that Lieutenant DiPiazza's comments are the basis for saying this could be done remotely.

[00:21:26] Speaker 03:
Is there anything else?

[00:21:27] Speaker 03:
Is there a job description?

[00:21:28] Speaker 03:
Is there something that we can look to to determine if in-person attendance is an essential function?

[00:21:33] Speaker 01:
Yes, absolutely, Your Honor.

[00:21:35] Speaker 01:
Judge Beatty at Statement of Fact 28, which is at ER 109 and 37 on the plane.

[00:21:40] Speaker 01:
I'll give the Plaintiff's Statement of Fact ER after the defendant.

[00:21:44] Speaker 01:
Regular reliable attendance for all city employees was required.

[00:21:48] Speaker 01:
That was admitted.

[00:21:50] Speaker 01:
Defendant's Statements of Fact 9 through 16.

[00:21:52] Speaker 01:
Well, wait a minute.

[00:21:52] Speaker 02:
Regular attendance does not say in person.

[00:21:56] Speaker 02:
That's a separate question.

[00:21:58] Speaker 01:
You're correct, Judge Graber.

[00:21:59] Speaker 02:
OK, so I guess a continuation of Judge

[00:22:03] Speaker 01:
Yes, and you are correct.

[00:22:07] Speaker 01:
That was just part of the attendance requirement overall.

[00:22:10] Speaker 01:
But one of the most critical functions of vehicle impound was in-person window hearings.

[00:22:17] Speaker 01:
That's defendant statements of fact 9 through 16, ER 107 and 36.

[00:22:24] Speaker 01:
Defendant statement of fact 18 through 22.

[00:22:30] Speaker 01:
It was standard operating procedure to have two people in court.

[00:22:33] Speaker 01:
That's at ER 108 and 36.

[00:22:35] Speaker 01:
Statement of fact 118 and 119 sets forth the photo enforcement unit requirements.

[00:22:43] Speaker 01:
That's at ER 121 and 42.

[00:22:45] Speaker 01:
Then defense statement of fact 6 through 8, the plaintiff disputed the in-person requirements of the job description.

[00:22:54] Speaker 01:
but then came forward with no evidence to controvert it.

[00:22:56] Speaker 01:
And that's a large part of the problem with the plaintiff's case here.

[00:23:00] Speaker 01:
We had 277 statements of fact, and by my count, about 48 were disputed.

[00:23:07] Speaker 01:
Of those disputed facts, plaintiff came forward with no evidence to contradict it, which is her burden to do when facing summary judgment.

[00:23:16] Speaker 01:
There were in-person requirements for court hearings.

[00:23:19] Speaker 01:
The plaintiff admitted there were in-person requirements for both vehicle impound as the window hearings and for photo enforcement to go to court to process the tickets and prosecute the tickets.

[00:23:34] Speaker 01:
And remember, at this time, we were going from a three-person unit and a two-person unit, the three-person photo enforcement, two-person vehicle impound.

[00:23:46] Speaker 01:
that we had a retirement in photo enforcement and then a retirement in vehicle impound.

[00:23:53] Speaker 01:
And that left two photo enforcement people

[00:23:56] Speaker 01:
and one vehicle impound person, which was Ms.

[00:23:59] Speaker 01:
Royston.

[00:24:00] Speaker 01:
Ms.

[00:24:00] Speaker 01:
Royston, not being there, leaves two people in photo enforcement to do everything, be in court, cover the window, and we had two people we needed in court, which made it an impossible position, and the window had to be closed.

[00:24:13] Speaker 01:
We have flyers from at least two times that they had to put up a flyer at the last minute because they didn't have enough people to staff the window and go to court.

[00:24:22] Speaker 01:
So it unquestionably was a part of the job, and it actually

[00:24:26] Speaker 01:
The in-person requirements, as far as being an essential function, the reason for these positions was the appearance at the window, was the appearance in court.

[00:24:37] Speaker 01:
There were other things or other duties, of course, that the employees had to do.

[00:24:43] Speaker 01:
But the whole purpose was, with vehicle impound, was to give people their cars back.

[00:24:47] Speaker 01:
And the way you do that is through a hearing.

[00:24:50] Speaker 02:
Would you direct your attention to the question I asked

[00:24:55] Speaker 02:
Council on the other side, and that is the question of adverse employment action.

[00:25:02] Speaker 02:
Is there any evidence that in the desk job that Ms.

[00:25:08] Speaker 02:
Royston had at the end, she was paid less or had fewer benefits or unpleasant working conditions or anything that would demonstrate adverseness?

[00:25:24] Speaker 01:
No, Judge Graber.

[00:25:25] Speaker 01:
There was no evidence that she was treated worse.

[00:25:29] Speaker 01:
She was able, when she was reassigned, to pick her location and her shift.

[00:25:35] Speaker 01:
The evidence below was that, so the only thing she could possibly point to would be her work hours and where she had to go to report to work.

[00:25:44] Speaker 01:
which is a short distance away from the two different stations, District 2 and District 3 for her desk job.

[00:25:53] Speaker 00:
Well, she wanted District 3, didn't she?

[00:25:55] Speaker 00:
And she got District 3.

[00:25:56] Speaker 01:
She got what she wanted.

[00:25:57] Speaker 01:
She got the shift she wanted.

[00:25:58] Speaker 01:
She got the location she wanted.

[00:26:00] Speaker 01:
And the chiefs told her, look, we will double up on shifts.

[00:26:04] Speaker 01:
If there's already somebody in that position, you can do it just so you can have the freedom and the flexibility you need to take your medical appointments and to get better.

[00:26:13] Speaker 02:
Is there any evidence to support counsel's theory in her opening argument that the rescission of the earlier job caused humiliation or other adverse reactions from coworkers or supervisors?

[00:26:39] Speaker 01:
Certainly not.

[00:26:40] Speaker 01:
The only evidence that there is is that plaintiff herself felt embarrassment.

[00:26:46] Speaker 01:
I think the evidence is overwhelmingly in favor of being supportive of Ms.

[00:26:51] Speaker 01:
Royston, caring for her, being concerned for her, and wanting her to do well.

[00:26:56] Speaker 01:
I mean, she was a well-liked employee.

[00:26:59] Speaker 02:
And as far as I understand, I want to be sure that I'm reading the claims and the record correctly.

[00:27:05] Speaker 02:
There is no claim here that her eventual separation

[00:27:09] Speaker 02:
from the department was involuntary or it was discriminatory in and of itself.

[00:27:20] Speaker 02:
Am I right about that?

[00:27:21] Speaker 01:
You are correct about that.

[00:27:22] Speaker 01:
She simply ran out of leave.

[00:27:24] Speaker 01:
And when she ran out of leave, the city covered her for, I think about a month's worth of gap pay to allow her to get to long-term disability.

[00:27:32] Speaker 01:
So there was never an instance where she was denied any FMLA protective, denied any leave other than her preferred vacation dates back in 2020.

[00:27:39] Speaker 01:
I think there was maybe one time she said that she didn't get a day off she wanted.

[00:27:44] Speaker 01:
So there's just no evidence of that.

[00:27:46] Speaker 01:
And eventually she missed so much work that she ran out of vacation leave, sick leave, unpaid leave, COVID leave, what have you, and went into the gap period where she was provided that additional leave.

[00:28:00] Speaker 01:
I also want to point out that as far as an accommodation to Ms.

[00:28:05] Speaker 01:
Royston, plaintiff admits in her reply brief that her only request for an accommodation was that she needed to be near a bathroom and make a few doctor's appointments.

[00:28:15] Speaker 01:
That's at page 23.

[00:28:18] Speaker 01:
But she got that.

[00:28:19] Speaker 01:
The first time that she ever mentioned that she needed to be near a bathroom, she admits, was at the chief's meeting on May 4 of 2021.

[00:28:29] Speaker 01:
That's the first time it was brought to their attention.

[00:28:32] Speaker 01:
And immediately, she was given the desk job.

[00:28:34] Speaker 01:
So to the extent that's even an accommodation, which I think under the ADA, I don't think it really qualifies.

[00:28:41] Speaker 01:
But certainly, there's been no proof that it qualifies.

[00:28:44] Speaker 01:
But she was given it regardless.

[00:28:45] Speaker 01:
And she was never denied an opportunity to take her leave.

[00:28:52] Speaker 01:
She never worked a day.

[00:28:54] Speaker 01:
on patrol, on the streets.

[00:28:55] Speaker 01:
She went straight to a desk job immediately upon making it clear that she had some difficulties.

[00:29:02] Speaker 03:
But plaintiff's point, I think, is that if the employer could tell that she needed an accommodation and had an obligation to explore that, and no one even explored whether there was a possibility for, say, virtual appearances at court or to make a remote work environment work, how do you respond to that?

[00:29:22] Speaker 01:
Well, number one, I don't think that number one, there wasn't a suspicion on the part of the employer that she was disabled under the ADA.

[00:29:32] Speaker 01:
What the employer knew was that she didn't feel well and that she was taking a lot of leave.

[00:29:37] Speaker 01:
She was missing a lot of work.

[00:29:38] Speaker 01:
The only thing she had ever told any person in management was to Alex Rastusha, her manager, telling him that she felt nausea at some points.

[00:29:48] Speaker 01:
But she admits the only time she shared her condition with her employers was during the chief's meeting on May 4 when she said, I need to be near a bathroom.

[00:29:57] Speaker 01:
And certainly, they had no reason to suspect that she had a substantially limiting disability to limit a major life activity.

[00:30:05] Speaker 01:
Because let's remember, she was released to work full duty with no restrictions by her doctors.

[00:30:12] Speaker 01:
during all the relevant time frame here.

[00:30:14] Speaker 01:
And so there was really no reason for the employer to expect that she needed an accommodation.

[00:30:19] Speaker 01:
She certainly never asked for one.

[00:30:21] Speaker 01:
But they nevertheless wanted her to be able to, if she felt she needed to take leave, take the leave you need.

[00:30:26] Speaker 01:
If you're not feeling well, don't come to work.

[00:30:28] Speaker 01:
But is that a disability under the ADA?

[00:30:31] Speaker 01:
I don't believe that it is.

[00:30:32] Speaker 01:
And I think that considering something like that to be a disability would put an onerous burden and an improper burden, frankly, on the employer.

[00:30:40] Speaker 01:
to have to dig further into every employee's, oh, she's not feeling well today, well, I should get a doctor's excuse or I need to get her medical records.

[00:30:47] Speaker 01:
That would be invasive.

[00:30:49] Speaker 01:
So really there's a burden on the plaintiff to let the employer know, to let the city know that there's some problems with what she's done.

[00:30:58] Speaker 01:
And she never did that.

[00:31:00] Speaker 01:
She never

[00:31:01] Speaker 01:
asked for an accommodation.

[00:31:03] Speaker 01:
And in fact, when they, when the city went through the interactive process as her light duty was expiring, she reiterated, I don't need an accommodation.

[00:31:14] Speaker 00:
And I take it they never actually had the opportunity to go through the job description line by line as they were talking about doing in the meeting.

[00:31:22] Speaker 01:
That's correct.

[00:31:23] Speaker 01:
It's Tom.

[00:31:23] Speaker 01:
And they attempted to do that.

[00:31:25] Speaker 01:
They sent a list of her job duties.

[00:31:27] Speaker 01:
They had her supervisor present, uh, scheduled for a meeting.

[00:31:31] Speaker 01:
And she was so alarmed that something's wrong.

[00:31:35] Speaker 01:
They're coming after me.

[00:31:36] Speaker 01:
She refused to participate in the process and said, I don't need an accommodation.

[00:31:43] Speaker 01:
And so I don't think there ever was a meeting that ever went forward where they went line by line through the process.

[00:31:50] Speaker 01:
So I think in this case, it's clear that the district court

[00:31:55] Speaker 01:
gave every benefit of the doubt to Miss Royston, gave her every reasonable inference.

[00:32:00] Speaker 01:
We had undisputed facts in total.

[00:32:03] Speaker 01:
The only thing that Miss Royston had to rely upon was her speculation and her beliefs, which would never be admissible in court.

[00:32:11] Speaker 01:
And the district court zealously guarded Miss Royston's right to a full trial.

[00:32:18] Speaker 01:
But at the end of the day, there was nothing for a jury to find, no fact to find, and the defendant, City of Scottsdale,

[00:32:24] Speaker 01:
was entitled to judgment as a matter of law.

[00:32:26] Speaker 01:
For that reason, we ask that you affirm.

[00:32:38] Speaker 04:
First of all, I think we're referring to the wrong law.

[00:32:41] Speaker 04:
It's not the ADA, it's the ADA as amended.

[00:32:45] Speaker 04:
Congress made very clear that they wanted things covered and overruled in specific language many of the precedents of the courts.

[00:32:56] Speaker 04:
One of the things it says is that cancer is a disability.

[00:33:03] Speaker 04:
is a disability of a major activity.

[00:33:06] Speaker 04:
It also says that whether it's in remission or not, it still is a qualified disability.

[00:33:16] Speaker 04:
Secondly, we talk about cross training.

[00:33:20] Speaker 04:
I have a memo here from March 2022 that says

[00:33:26] Speaker 04:
cross-training and performing vehicle impoundment hearing officer's function in a backup capacity.

[00:33:33] Speaker 04:
So all of those people were supposed to have been cross-trained.

[00:33:37] Speaker 04:
Also, one of the things that we've missed here is that

[00:33:43] Speaker 00:
That was after the 2021 time period.

[00:33:47] Speaker 04:
We're talking about there was 22 is when the, when the email comes out.

[00:33:51] Speaker 00:
Right.

[00:33:51] Speaker 04:
Which is after the relevant, but there still was supposed to be cross-training.

[00:33:56] Speaker 04:
Nicole was cross-trained.

[00:33:57] Speaker 04:
Um, Rustica says, um, she talked about cross-training at SER 409.

[00:34:07] Speaker 00:
Yes.

[00:34:07] Speaker 00:
So your argument is that they formalized it in 2022, but they had the obligation in 2020.

[00:34:13] Speaker 04:
They certainly had the obligation.

[00:34:15] Speaker 04:
And I would refer the court to XP versus Stolle.

[00:34:21] Speaker 04:
The ADA as amended focuses on compelling behavior of the employer.

[00:34:30] Speaker 04:
compelling it to act in a certain way.

[00:34:33] Speaker 04:
It is not a retroactive law.

[00:34:37] Speaker 04:
It is a law that requires interactive conversation.

[00:34:42] Speaker 04:
And what you heard over and over here is that they failed to ask.

[00:34:47] Speaker 04:
But just because they failed to ask didn't mean they didn't know.

[00:34:50] Speaker 00:
One of the statement of fact that she didn't attend the meeting

[00:34:57] Speaker 00:
where they were going to actually start to engage in the process and go through the job description to find out whether or not she was capable of doing each of the items.

[00:35:06] Speaker 04:
Well, that was purely speculative that that was what they were doing.

[00:35:10] Speaker 04:
They never called it reasonable.

[00:35:12] Speaker 00:
Yes, they speculated in the record as to what they were going to do at the meeting.

[00:35:17] Speaker 04:
Well, they said they were going to do at the meeting.

[00:35:19] Speaker 00:
We also have in the record that descriptions in the record and we have the testimony that they were going to go through them at that meeting.

[00:35:27] Speaker 00:
Well,

[00:35:28] Speaker 04:
Your client decided not to attend because although we also have in the record and this is disputed facts and let's not just talk about admitted facts.

[00:35:39] Speaker 04:
Let's talk about genuine material.

[00:35:42] Speaker 00:
But Council, I guess the concern I have is that the process has to be interactive, meaning both sides have to be interactive.

[00:35:48] Speaker 04:
Exactly.

[00:35:48] Speaker 04:
They needed to ask.

[00:35:50] Speaker 04:
And Slaven walked into a meeting, according to Rustica, and Rustica thought they were going to talk about what Nicole could do and not do.

[00:36:01] Speaker 04:
And Slaven said, no, she's out of here.

[00:36:05] Speaker 04:
She's done.

[00:36:05] Speaker 04:
The other thing that my esteemed Council has done is conflate two jobs.

[00:36:13] Speaker 04:
The photo enforcement job did not have a window.

[00:36:16] Speaker 04:
That was one of the reasons De Piazza thought that she'd do well in that job.

[00:36:21] Speaker 00:
The window hearings is for getting the cars out of impound, right?

[00:36:23] Speaker 04:
Yeah, the window was the towing section.

[00:36:26] Speaker 00:
It's the attendance at court that's the key factor with the photo enforcement.

[00:36:30] Speaker 04:
Right.

[00:36:31] Speaker 04:
But obviously at the time that De Piazza recommended the photo enforcement position and the time that she went through the entire hiring procedure,

[00:36:44] Speaker 04:
All of the people in the management at the city of Scottsdale thought she could do the job.

[00:36:49] Speaker 04:
So two weeks later, we have Slaven walk in and say, no, not going to happen.

[00:36:54] Speaker 04:
When she asks for the photo enforcement job again, Slaven says, well, that's not going to happen.

[00:37:02] Speaker 04:
There was no ADA process.

[00:37:04] Speaker 04:
Actually, if you read the record, someplace in the city of Scottsdale, they have a form.

[00:37:09] Speaker 04:
You would have thought that somebody would have handed her a form.

[00:37:14] Speaker 04:
Um, the only time they talk about interactive process.

[00:37:18] Speaker 03:
So I'm sorry to interrupt you.

[00:37:19] Speaker 04:
My time's up.

[00:37:21] Speaker 03:
You're almost three minutes over.

[00:37:23] Speaker 03:
So if you want to wrap up quickly, but can you see the clock from where you are?

[00:37:27] Speaker 03:
Yeah.

[00:37:28] Speaker 03:
Okay.

[00:37:28] Speaker 03:
I don't look at it because I look at you and I apologize.

[00:37:32] Speaker 03:
We were asking you questions, but if you want to just close, we're over time.

[00:37:36] Speaker 03:
Okay.

[00:37:37] Speaker 04:
The judge aired when she used.

[00:37:43] Speaker 04:
when she found she wasn't a qualified individual.

[00:37:46] Speaker 04:
Under the ADA as amended, she clearly is a qualified individual.

[00:37:51] Speaker 04:
There was no interactive process when they decided unilaterally in a meeting that

[00:37:59] Speaker 04:
Nicole was not at, that she could not do leave, and that she would miss so much that this was an essential function of the job.

[00:38:09] Speaker 04:
Twelve hours a month is basically what she was supposed to do in court, and nobody ever explored if there was another way to do that.

[00:38:19] Speaker 04:
The further proof is that they never hired anybody to do that, so how could it have been essential if for the next year they never fill it?

[00:38:28] Speaker 04:
Thank you for your time and patience.

[00:38:32] Speaker 04:
I appreciate it.

[00:38:33] Speaker 04:
Thank you.

[00:38:34] Speaker 03:
Counsel, thank you both for your arguments this morning and this case is submitted.