[00:00:05] Speaker 02:
Good morning, Mr. Kemp, is it?

[00:00:08] Speaker 04:
Yes, your honor.

[00:00:09] Speaker 04:
Good morning.

[00:00:09] Speaker 04:
May it please the court.

[00:00:10] Speaker 04:
I'm J.P.

[00:00:10] Speaker 04:
Kemp for the appellant, Juan Yoloa.

[00:00:14] Speaker 04:
I'd like to reserve three minutes for rebuttal, if I could.

[00:00:18] Speaker 04:
I'll watch the clock.

[00:00:19] Speaker 04:
Thank you.

[00:00:20] Speaker 04:
We're here.

[00:00:21] Speaker 04:
We've appealed the granting of summary judgment on Mr. Yoloa's disability discrimination and failure to accommodate claims and also

[00:00:30] Speaker 04:
an order wherein the district court denied a motion to extend time to object to a magistrate judge's order regarding a discovery matter and then struck our objection to the discovery order from the magistrate judge.

[00:00:51] Speaker 04:
With respect to the disability discrimination claim,

[00:00:55] Speaker 04:
The court actually found that Juan Lloa is not a person with a disability, which is kind of impossible because Mr. Lloa has, he suffered a back injury on June 4th, 2019 when the

[00:01:11] Speaker 02:
Enormous haul truck was driving in the mining operation at barrack was struck by the shovel operator Counselor maybe we cut to the quick on this year your client was given a full-paid basically while he was on leave

[00:01:30] Speaker 02:
Under our case law, that satisfies.

[00:01:32] Speaker 02:
But the question is whether he's disabled under the ADA after Dr. Rayer's report that he has suffered no permanent disability and can return to full-time, full-duty work without restriction.

[00:01:44] Speaker 02:
How do you get around that?

[00:01:46] Speaker 04:
Well, two things, Your Honor.

[00:01:47] Speaker 04:
First of all, he was not paid for the entire time.

[00:01:49] Speaker 04:
It was workers' compensation benefits that he got.

[00:01:52] Speaker 04:
And he only got it... I don't think there's any proof that he got it prior to September 18th of 2019.

[00:01:59] Speaker 04:
But they denied him from September 18th of 2019 until sometime in December.

[00:02:04] Speaker 02:
So you claim that contrary to the representations of the defendant, he was not paid during the leave.

[00:02:12] Speaker 02:
Is that correct?

[00:02:12] Speaker 04:
Certainly not during all of it.

[00:02:14] Speaker 04:
September 18th, they cut him off.

[00:02:17] Speaker 04:
And he had to actually go through many months.

[00:02:19] Speaker 02:
Was that after the doctor gave his note saying he could return

[00:02:23] Speaker 04:
full-time without restriction that happened on October 2nd so about two weeks later was when Dr. Rader is a two-week gap roughly at least I don't find anything in the record and I was under the impression but as I look at I don't find anywhere where they paid him TTD up until that point let me ask you this but I don't find the opposite either where in the record is it that he wasn't paid is there something I mean I'm trying to yeah I was under the impression he was paid for the entire time

[00:02:51] Speaker 04:
That's correct.

[00:02:52] Speaker 04:
No, so there's an appeals officer decision in order because they had to, and throughout, in the second volume of the excerpts of record, there are numerous hearing officer decisions in the worker's comp claim where he had been denied, there are letters where he was denied temporary total disability benefits throughout that time period.

[00:03:18] Speaker 04:
They had to appeal that.

[00:03:20] Speaker 04:
hearing officer reversed some of them and it ultimately went to an appeals officer with the second level of administrative appeal where the appeals officer ultimately had to rule that he was entitled to those benefits even during the time after Dr. Rayer came out with this thing on October 2nd.

[00:03:37] Speaker 01:
And the reason for that is that... Where in our record is it found that he wasn't?

[00:03:44] Speaker 04:
I believe it's in Volume four or five your honor, okay?

[00:03:52] Speaker 04:
It's it's the appeals officer decision in order.

[00:03:55] Speaker 04:
Oh hold on a moment.

[00:03:55] Speaker 01:
I can Well, I have another question for you on the disability.

[00:04:00] Speaker 01:
What's the evidence of disability?

[00:04:02] Speaker 04:
Dr. Rayer doesn't give you any support for that so dr. Rayer's problem is that his entire thing was a

[00:04:10] Speaker 04:
was undermined by Dr. Rapoport, who is an orthopedic surgeon in Reno, when he did an independent medical evaluation.

[00:04:19] Speaker 04:
What Dr. Ray was looking at, and this is important because it brings in workers' compensation down in the weeds a little bit.

[00:04:27] Speaker 04:
He was saying, I'm releasing him from a strain injury, a lumbar strain injury, and at that point in time,

[00:04:36] Speaker 04:
The claim had been limited to this lumbar strain injury.

[00:04:39] Speaker 04:
But we have an MRI report from June that shows herniated discs.

[00:04:44] Speaker 04:
So the claim was ultimately expanded to include those herniated discs.

[00:04:47] Speaker 04:
Mr. Ioloa has the herniated discs all the way from June when he gets injured.

[00:04:53] Speaker 04:
up until today.

[00:04:54] Speaker 01:
Well, I'm aware of the email that talks about he has other other problems, but I don't.

[00:05:00] Speaker 01:
Yes.

[00:05:00] Speaker 01:
Where in the record is the MRI with the herniated disc?

[00:05:03] Speaker 04:
The MRI with the herniated disc is at 2 ER 180.

[00:05:08] Speaker 04:
That's the MRI report.

[00:05:10] Speaker 04:
That was on June 24th of 2019.

[00:05:13] Speaker 04:
Dr. Rayer completely ignored that in his October 2nd report.

[00:05:16] Speaker 04:
So four months later, not quite almost

[00:05:20] Speaker 04:
A little over three months later, Dr. Rayer is ignoring the fact that Mr. Iloa has these herniated discs, and he appears to be doing it because the herniated disc is not... Let me ask you, is there an opinion from an expert or a doctor that say the herniated disc creates a disability?

[00:05:38] Speaker 04:
Well, we have the report from Dr. Rappaport who says that

[00:05:42] Speaker 04:
You know, he is injured, he is restricted.

[00:05:46] Speaker 04:
We have an 11% permanent partial disability evaluation.

[00:05:49] Speaker 04:
We have a functional capacity evaluation.

[00:05:52] Speaker 04:
All of these things were later on.

[00:05:54] Speaker 04:
It's true, those were later on.

[00:05:56] Speaker 04:
However, Mr. Iloha's condition didn't change.

[00:05:59] Speaker 04:
The MRI showing the herniated discs, that didn't miraculously go away and then come back.

[00:06:05] Speaker 01:
Let me ask you this.

[00:06:07] Speaker 01:
We've got this functional capacity evaluation a year after he's released, true?

[00:06:12] Speaker 04:
It was later toward the end of his claim, yes.

[00:06:14] Speaker 01:
Okay.

[00:06:14] Speaker 01:
Do we have an expert saying that the situation he was in, his disability existed at the time of his release as opposed to a year later?

[00:06:28] Speaker 04:
I would say that both the opinions of Dr. Rappaport, who said he's had this all the way through.

[00:06:35] Speaker 01:
Dr. Rappaport says, in my opinion, this disability existed a year ago.

[00:06:42] Speaker 04:
So Dr. Rapoport sees him in January of 2020, so that's about a little over two months, three months after he got fired.

[00:06:51] Speaker 04:
That's the soonest they could get him in.

[00:06:52] Speaker 04:
That IME was being scheduled at the time when he got fired, though.

[00:06:58] Speaker 04:
And Dr. Rapoport says, yes, he's got a herniated disc that was at least aggravated, if not caused, by the industrial accident on June 4, 2019.

[00:07:06] Speaker 01:
And when's that opinion rendered?

[00:07:09] Speaker 04:
In the record, so that's Dr. Rapoport's report is 2ER 267 to 274.

[00:07:16] Speaker 02:
In the date, 2ER what did you say?

[00:07:18] Speaker 04:
2ER 267 through 274 is Dr. Rapoport.

[00:07:23] Speaker 04:
I believe it was January 20th.

[00:07:25] Speaker 02:
So you're saying Dr. Rapoport's report came after he was fired, is that correct?

[00:07:31] Speaker 04:
It did, but that appointment had been scheduled and that's what you'll see in the... I understand, but for purposes of the company,

[00:07:38] Speaker 02:
What they had was the report of Dr. Rayer, which said he could return, there's no permanent disability, could return to full-time work without restriction.

[00:07:48] Speaker 02:
You're saying that Dr. Rappaport saw him two months or later after that and said he had a permanent disability.

[00:07:56] Speaker 02:
So what do we do with that?

[00:07:57] Speaker 02:
When they acted, they acted based upon Dr. Rayer's report, right?

[00:08:01] Speaker 04:
What's important about that is the October 4th, 2019 email.

[00:08:06] Speaker 04:
from the workers' compensation person in the company to the human resources people in the company.

[00:08:12] Speaker 04:
And that's at 2ER 246.

[00:08:16] Speaker 04:
And what they say is, yeah, Dr. Rappaport has released him, but he has said he needs to see his own doctor about ongoing problems that he has.

[00:08:25] Speaker 04:
And he is being set for an independent medical evaluation coming up.

[00:08:31] Speaker 04:
At that point, it was, I think, supposed to be.

[00:08:32] Speaker 02:
So that was for purposes of the workers' comp, though, right?

[00:08:35] Speaker 04:
Yeah, but again, it's saying that he's not completely better.

[00:08:39] Speaker 04:
They know that he's not completely better because he's going to see more doctors.

[00:08:42] Speaker 03:
You see that in that.

[00:08:43] Speaker 03:
He just says that... He just says there are further medical tests scheduled.

[00:08:50] Speaker 03:
Right.

[00:08:50] Speaker 03:
He doesn't say he's not getting better.

[00:08:53] Speaker 03:
Right.

[00:08:54] Speaker 03:
Well, so there are further... What it says is, if I'm on 246, the final diagnostic testing was negative, showing no nerve damage.

[00:09:04] Speaker 03:
He was released for full duty and from care.

[00:09:08] Speaker 03:
He has ongoing complaints and he recommended follow-up.

[00:09:13] Speaker 04:
Right.

[00:09:14] Speaker 04:
So he doesn't have nerve damage, but that doesn't address the herniated discs.

[00:09:17] Speaker 04:
He's got physically herniated discs, protrusions and herniations.

[00:09:21] Speaker 04:
It says it in the MRI report, which they also have.

[00:09:25] Speaker 04:
They also have the MRI report.

[00:09:27] Speaker 04:
And what they're saying there is that, yeah, from the claim standpoint, from a worker's compensation claim, if his claim is only accepted for a strain, the strain is better.

[00:09:37] Speaker 04:
But he's got the herniated discs, and that gets added into the claim as time goes on.

[00:09:42] Speaker 04:
And the workers' comp people working for the company knew that that was the case.

[00:09:46] Speaker 04:
They knew that he was seeing other doctors.

[00:09:48] Speaker 01:
For the herniated disc?

[00:09:51] Speaker 04:
Well, it doesn't say that specifically about the herniated disc, but that's in fact what it ends up being.

[00:09:57] Speaker 01:
Well, the email that we're talking about where he says he has other complaints, it doesn't state that the complaints were about substantially limiting impairments, though, does it?

[00:10:07] Speaker 04:
Well, he was complaining that he was still having problems.

[00:10:09] Speaker 01:
I'm talking about the email, the email itself, the information that the company had.

[00:10:14] Speaker 04:
The information that the company had, again, they were going to his doctor's appointments with him.

[00:10:19] Speaker 04:
The information that the company had was that he was going to be seeing other doctors, including his own doctor.

[00:10:26] Speaker 04:
for these nerve issues that he was complaining about, the pain issues that he was complaining about, that they were making determinations more than the claim, which of course they changed their mind about that later on.

[00:10:37] Speaker 01:
Well, I'm just, I thought you said it was the email that gave them heads up.

[00:10:41] Speaker 01:
And the email doesn't say anything other than he has other complaints.

[00:10:44] Speaker 04:
Right?

[00:10:45] Speaker 04:
And that he's seeing and then he's going to see other doctors and then also he meets with them on the 4th of October and tells them he's going to the hospital right after that meeting.

[00:10:52] Speaker 04:
He says, you know, he's got numbness, he's got all of these issues.

[00:10:55] Speaker 04:
He's telling the HR people when he meets with them directly.

[00:10:59] Speaker 04:
And that's in the record?

[00:11:00] Speaker 04:
It's in the recordings that I think have been submitted, yes.

[00:11:03] Speaker 04:
He recorded those meetings and those recordings I believe are in the record, yes.

[00:11:10] Speaker 04:
He doesn't magically get better from October 2 until he sees Dr. Rappaport.

[00:11:16] Speaker 04:
And he sees Dr. Song in there, too, and is given restrictions again.

[00:11:20] Speaker 04:
They expand the scope of his claim.

[00:11:22] Speaker 04:
This is all going on.

[00:11:23] Speaker 04:
And they know that he's continuing to follow up.

[00:11:26] Speaker 04:
They know that he's continuing to look at expansion of the claim and continuing to get care because he's having problems, because he's limited.

[00:11:34] Speaker 04:
The pain is limiting what he can do.

[00:11:37] Speaker 04:
And he asks on October 2 for an accommodation.

[00:11:40] Speaker 04:
And they don't have any kind of interactive process with them.

[00:11:44] Speaker 02:
And that's important.

[00:11:45] Speaker 02:
Again, I think, at least from my problem, we seem to be looking at a different record.

[00:11:50] Speaker 02:
Because the record that I see shows that Dr. Rayer says he can return.

[00:11:56] Speaker 02:
There's no permanent disability.

[00:11:58] Speaker 02:
There are no restrictions.

[00:12:00] Speaker 02:
At a subsequent time, you're saying that due to his complaints going to Dr. Rappaport, he says something different.

[00:12:06] Speaker 02:
As you know, we see these social security disability cases all the time.

[00:12:11] Speaker 02:
Nobody agrees.

[00:12:12] Speaker 02:
But the reality is that this company has evidence based upon Dr. Rayer that there's no problem.

[00:12:21] Speaker 02:
He's done.

[00:12:22] Speaker 02:
He can come back to work full time.

[00:12:24] Speaker 02:
Now, the fact that he's complaining

[00:12:26] Speaker 02:
I suppose one would expect that happens all the time.

[00:12:29] Speaker 02:
But that doesn't change the fact that there was no medical evidence at the time of his firing that he had any of the problems that you're talking about is there.

[00:12:40] Speaker 04:
Dr. Rayer in his report says, I am sending him, I want him to go to his general, his own personal physician to address these other issues that he's having.

[00:12:50] Speaker 04:
So Dr. Rayer wasn't saying that he's completely all better.

[00:12:54] Speaker 04:
He's saying he's completely all better with respect to the lumbar strain.

[00:12:57] Speaker 02:
He said he can return to work full time without restriction.

[00:13:01] Speaker 02:
He didn't say that he was a psychological genius.

[00:13:04] Speaker 02:
He didn't say he had no other problems in his life.

[00:13:06] Speaker 02:
He just said he can return to work without restriction.

[00:13:09] Speaker 02:
That's all the company needs to know, isn't it?

[00:13:11] Speaker 04:
As far as the claim goes, he's saying he can go back to work full duty as far as the claim goes.

[00:13:17] Speaker 04:
Now it doesn't, you have to, there is, the way that workers comp claims work, you have certain body parts, certain conditions that are accepted.

[00:13:27] Speaker 04:
The doctors you're seeing for that will only address those issues.

[00:13:30] Speaker 04:
If it's not an acclaim, the doctor's not going to see it.

[00:13:33] Speaker 04:
So he's saying, from the standpoint of this strain, this lumbar strain, I'm all done with him.

[00:13:40] Speaker 04:
He's all done.

[00:13:40] Speaker 04:
I could release him.

[00:13:41] Speaker 04:
He would be full duty as to that.

[00:13:42] Speaker 02:
You want to save any of your time, counsel?

[00:13:43] Speaker 02:
You can do it if you wish.

[00:13:44] Speaker 02:
I better, Your Honor.

[00:13:45] Speaker 02:
Thank you.

[00:13:45] Speaker 02:
OK.

[00:13:45] Speaker 02:
All right.

[00:13:46] Speaker 02:
So let's hear then from Mr. McGuire.

[00:14:14] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:14:16] Speaker 00:
My name is Jonathan McGuire here on behalf of Respondent Nevada Goldmines.

[00:14:20] Speaker 00:
The Court has correctly analyzed the issues surrounding the October 2, 2019 Certification of Disability form, and I wanted to go over some of those details.

[00:14:30] Speaker 00:
It's located at 4ER-0865.

[00:14:33] Speaker 00:
In that section, Dr. Rayer says that... I'm sorry, where are you?

[00:14:37] Speaker 00:
Sorry?

[00:14:37] Speaker 00:
What was the site?

[00:14:39] Speaker 00:
4ER0865.

[00:14:42] Speaker 00:
This is the certification of disability form that this court has been referencing.

[00:14:48] Speaker 00:
In that particular form, again, it's titled certification of disability, nothing about a worker's comp claim or limited for that matter.

[00:14:55] Speaker 00:
It goes over and says that Mr. Ulloa is returned to full duty with no restrictions as of October 2, 2019.

[00:15:02] Speaker 00:
that he did not suffer a permanent disability, and the accompanying narrative that is located, if you just flip back two pages, clearly demonstrate that Ulloa was returned to full-time, full-duty work and has suffered no permanent disability, and he will be released from care at this time.

[00:15:19] Speaker 00:
The objective medical evidence available to the employer at the time of termination was that Ulloa was not disabled under the ADA, such that he could be returned to work in his entirety.

[00:15:29] Speaker 02:
Counsel, let me ask you this.

[00:15:30] Speaker 02:
You heard opposing counsel dispute the idea that Mr. Aloa was compensated fully during the time he was basically on leave.

[00:15:43] Speaker 00:
What's your response to that?

[00:15:45] Speaker 00:
Several layers of responses, Your Honor.

[00:15:47] Speaker 00:
In the first instance, we shouldn't get too caught up with whether it's paid leave or unpaid leave because this court's precedents support that a continued FMLA leave, which is unpaid,

[00:15:56] Speaker 00:
can in fact be a reasonable accommodation.

[00:15:58] Speaker 00:
That's this court's opinion in Reyna.

[00:16:00] Speaker 03:
Right, but I think we're asking for was he paid or not.

[00:16:03] Speaker 00:
And he was, Your Honor.

[00:16:04] Speaker 00:
His own admission admits that he was paid.

[00:16:07] Speaker 00:
Mr. Kemp's quibble that he has with the record indicates a subsequent attempt by the third party administrator to get some of that money back.

[00:16:16] Speaker 00:
It's not about whether he in fact was paid.

[00:16:18] Speaker 00:
It's about whether the money should have been given back to him.

[00:16:21] Speaker 00:
That is, if I might, Your Honors,

[00:16:26] Speaker 00:
For the purposes of the paid leave, Mr. Lois says in his charge of discrimination that he signed under oath to the EEOC.

[00:16:33] Speaker 00:
I was placed on paid workers compensation leave.

[00:16:37] Speaker 00:
He's on paid leave for the entirety of the time.

[00:16:39] Speaker 00:
What's the what's the sign on that?

[00:16:40] Speaker 00:
That's 1SER 173.

[00:16:44] Speaker 01:
Was he ever required to pay any of it back?

[00:16:47] Speaker 00:
No, Your Honor, I don't believe so.

[00:16:48] Speaker 00:
I believe that those I know that that is in the record.

[00:16:51] Speaker 00:
I do not know it as an absolute fact with a citation for you.

[00:16:54] Speaker 00:
However, I can tell you that he received paid leave from Barrick, he received total temporary disability payments, and then he received paid suspension investigative pay from October 2nd, 2019 through his termination.

[00:17:07] Speaker 00:
So, yes, he was paid for the entirety of the time, and there is nothing in the record that would support the opposite.

[00:17:12] Speaker 01:
So he was paid his full salary that entire time?

[00:17:15] Speaker 00:
No, Your Honor.

[00:17:16] Speaker 00:
TTD benefits are only 66 and two-thirds of an employee's salary.

[00:17:20] Speaker 00:
As it pertains to the period of time, so there is

[00:17:22] Speaker 00:
The slight complication here is that he was paid different rates.

[00:17:25] Speaker 00:
He was paid his full rate, he was paid TTD, and then he was paid his full rate again.

[00:17:29] Speaker 00:
However, at no point in time did he receive less than 66 and two-thirds of his salary.

[00:17:34] Speaker 02:
Does that include workers' comp?

[00:17:37] Speaker 00:
I'm sorry, Your Honor, I didn't understand the question.

[00:17:38] Speaker 02:
Does it include workers' comp payments?

[00:17:40] Speaker 00:
The TTD, temporary total disability payments, are the workers' compensation benefits, and opposing counsel's argument is, well, if the law requires you to pay it, then it's not a reasonable accommodation.

[00:17:50] Speaker 00:
That's faulty reasoning, Your Honors.

[00:17:52] Speaker 00:
FMLA is required to be paid, and yet we still allow that to be a reasonable accommodation.

[00:17:57] Speaker 00:
Of course, a continuation in a party's compliance with its legal obligations is still, in fact, going to be seen as...

[00:18:06] Speaker 00:
appropriate and reasonable leave.

[00:18:08] Speaker 00:
Because he was accommodated with leave the entire time, it moots the entirety of the failure to accommodate claim.

[00:18:14] Speaker 00:
Mr. Kemp's argument is, well, he asked to change right there at the end, at which point in time he was placed on administrative leave, the quintessential element, which is you are removed from the entirety of your duties during that period of time.

[00:18:27] Speaker 00:
Thus, it's clear he was accommodated with leave the entire time the failure to accommodate claim simply falls apart.

[00:18:33] Speaker 01:
Let me ask you this.

[00:18:34] Speaker 01:
Are there some limits on when a paid leave amounts to a reasonable accommodation?

[00:18:40] Speaker 01:
For example, could an employer keep an employee on paid leave indefinitely as a reasonable accommodation and never have to bring him back to work?

[00:18:48] Speaker 00:
I would actually invert your question, Your Honor.

[00:18:50] Speaker 00:
The question is, can an employee require an employer to keep them on paid leave indefinitely?

[00:18:55] Speaker 00:
And the answer to that question is no.

[00:18:57] Speaker 00:
Indefinite leave is not seen as a reasonable accommodation that an employer must provide.

[00:19:01] Speaker 00:
However, if an employer chooses to exceed their legal obligation and provide that leave, I do believe that that would be a reasonable accommodation under the ADA, so long as it's supported by the medical evidence.

[00:19:13] Speaker 00:
And that's the key, right?

[00:19:14] Speaker 00:
When you're using medical evidence and when you're looking at leave as a reasonable accommodation,

[00:19:18] Speaker 00:
You want to try and sync up.

[00:19:19] Speaker 00:
Is there a potential that this employee, if provided this leave, will be able to return to work?

[00:19:24] Speaker 00:
If there's a potential there, then providing the leave is a reasonable accommodation.

[00:19:28] Speaker 00:
If there is no potential, Your Honor, I think you have a fair argument that that would not be reasonable.

[00:19:33] Speaker 02:
There's been a discussion about your client, I mean, his client being asked to return a portion of a payment.

[00:19:40] Speaker 02:
What was that?

[00:19:42] Speaker 00:
Your honor, I believe that was a dispute regarding the amount of TTD that he had been provided.

[00:19:47] Speaker 00:
That is in the

[00:19:50] Speaker 00:
July 1st, 2020, and that's located in the record at 3ER0397.

[00:19:55] Speaker 00:
It's regarding TTD benefits that are a full year after termination.

[00:19:59] Speaker 00:
The leave that we're talking about is in July of 2020, not prior to his period of time in which he was, in fact, still employed.

[00:20:09] Speaker 00:
He continues to receive these benefits even after he's no longer employed, and this is an important part for this court's analysis.

[00:20:15] Speaker 00:
The TTD benefits and the worker's compensation claim run separate from the ADA analysis and the accommodations that he's being provided.

[00:20:24] Speaker 00:
One can satisfy another obligation, but the compensability of the injury is treated differently from the discipline that arises from the failure to report.

[00:20:33] Speaker 01:
What did you guys know about the herniated discs?

[00:20:39] Speaker 00:
Your Honor, that particular MRI report is incorporated into virtually every medical record from the date the MRI happens forward.

[00:20:49] Speaker 00:
The court was clearly asking for a direct answer on where's the expert report on this particular issue.

[00:20:55] Speaker 00:
There is no expert report.

[00:20:56] Speaker 00:
There are only non-retained experts in this case.

[00:20:59] Speaker 00:
So what Mr. Kemp is trying to do, and I do not believe that he disclosed any expert witnesses in this case.

[00:21:03] Speaker 00:
The only person that's disclosed any expert witnesses is the defendant.

[00:21:07] Speaker 00:
So I don't believe that there is truly an expert opinion on this exact question.

[00:21:11] Speaker 00:
However, that MRI report and Dr. Reier's evaluation of the report is incorporated into every medical record, and we cited it in the briefing, every medical record from then moving forward.

[00:21:21] Speaker 02:
Dr. Reier had the MRI as well.

[00:21:23] Speaker 00:
Yes.

[00:21:25] Speaker 00:
And he read it and he determined that it was not significant.

[00:21:27] Speaker 00:
And he diagnosed him with a lumbar strain and proceeded forward.

[00:21:31] Speaker 00:
And that's consistent with all the medical documentation, Your Honors.

[00:21:34] Speaker 00:
If I might jump over to the qualified individual analysis under the disparate treatment claim, because I think the failure to accommodate claim, it's clear summary judgment was proper.

[00:21:43] Speaker 00:
Mr. Ulloa runs into an immovable object on the qualified individual analysis because of his own admissions.

[00:21:49] Speaker 00:
For his disparate treatment claim, Ulloa cannot show even a genuine dispute of material fact that he can get past summary judgment as to the second step of the qualified individual prong.

[00:22:00] Speaker 00:
At his deposition, Ulloa testified when he was asked about an August 2019 disability benefits application.

[00:22:06] Speaker 00:
Did you believe you weren't able to do your job, but you thought you would be able to in three months?

[00:22:11] Speaker 00:
He answered, not after the pain got worse, I knew I wasn't going to be able to come back.

[00:22:15] Speaker 00:
That's at 4ER 0709.

[00:22:18] Speaker 00:
This is his admission regarding his own condition about whether he could return to work as a hall truck driver.

[00:22:24] Speaker 00:
He says he knew he wasn't going to be able to.

[00:22:27] Speaker 00:
He also admitted in his intake inquiry to NERC that from June 4th, 2019,

[00:22:31] Speaker 00:
To April 23rd, 2020, he, and I'm directly quoting, had to spend most of his day lying down.

[00:22:37] Speaker 00:
That's at 3ER-0482.

[00:22:40] Speaker 00:
There is simply no argument on these facts that Ulloa was a qualified individual under the analysis that this court has adopted.

[00:22:49] Speaker 00:
Secondly, and independently, Ulloa cannot demonstrate that he was a qualified individual because he engaged in repeated acts of misconduct.

[00:22:57] Speaker 00:
This court has characterized misconduct, especially that which threatens the safety of others, can render an employee unqualified.

[00:23:03] Speaker 00:
That's this court's opinion in Mayo.

[00:23:05] Speaker 00:
Lola had not one, but two serious safety violations just over a month before he was eventually placed on leave, rendering him unqualified.

[00:23:14] Speaker 00:
On May 2nd, 2019, he received written discipline for ignoring critical safety alerts and violating Barrick's fatigue management system.

[00:23:23] Speaker 00:
And then a month later, he receives the failure to report an incident and injury preventing inspection of a safety risk.

[00:23:30] Speaker 00:
This repeated acts of misconduct indisputably creates an issue where Ulloa has demonstrated a pattern of disregard for his colleague's safety.

[00:23:39] Speaker 00:
It also prevented the prompt and appropriate investigation by Barrick of his failure to report the incident, including drug and alcohol testing, which is absolutely crucial in terms of the post-accident investigation.

[00:23:59] Speaker 00:
As it pertains to causation for the purposes of his disparate treatment claim, Loa cannot argue that there's any element of causation here because the day he reports the incident is October 6th, 2019.

[00:24:10] Speaker 00:
October 7th, 2019, Barrick fills out the C3 form and in response to the prompt, if the validity of the claim is doubted, state the reason.

[00:24:18] Speaker 00:
Barrick types questioned late report per Barrick policy.

[00:24:22] Speaker 00:
What happens next?

[00:24:24] Speaker 00:
is absolutely irrelevant for the fact of at that time, the day after the incident, Barrick already suspected a policy violation had occurred and it wanted to discipline him regarding it.

[00:24:34] Speaker 00:
And the test that Mr. Ulloa has to pass is the discrimination would not have occurred but for the wrongful actions of the employer.

[00:24:42] Speaker 00:
No one knew that Ulloa would allegedly in the future sometime develop a disability as of June 7th, 2019.

[00:24:48] Speaker 00:
And as a result, causation is absolutely negated.

[00:24:53] Speaker 00:
If I might briefly, your honors, go over the legitimate nondiscriminatory reason.

[00:24:57] Speaker 00:
Even in the event this court decides, I can get past the prima facie case.

[00:25:01] Speaker 00:
We can get there.

[00:25:01] Speaker 00:
I want to know more about Barrick's legitimate nondiscriminatory reason.

[00:25:05] Speaker 00:
It is absolutely proper and consistent the entirety of the way through the record.

[00:25:10] Speaker 00:
Baric's standards of conduct policy say that a failure to report an on-the-job or job-related environmental safety or health injury or incident is a violation of these standards of conduct.

[00:25:21] Speaker 00:
Similarly, in another document Ulloa received in the unacceptable behaviors section, it says failing to report an incident.

[00:25:28] Speaker 00:
As I just mentioned to you, the day after Ulloa reports the incident,

[00:25:31] Speaker 00:
Baric signs on the C3 form that they are doubting it, noting that it's a late report per Baric policy.

[00:25:37] Speaker 00:
And then Uloa's provided the leave that he was given.

[00:25:39] Speaker 00:
In the discipline notes, which was part of the investigation of his failure to report, Lisa Chamberlain notes that Uloa's violation was failing to report an incident or injury.

[00:25:50] Speaker 00:
And then in his termination letter on October 16, 2019, he's written up for an incident that occurred on June 4 that you did not report to your supervisor until June 6.

[00:26:00] Speaker 00:
That's the same reason all the way through, over and over and over again.

[00:26:04] Speaker 00:
Ulloa failed to report an incident and injury, and as a result, he knew that he was going to be termed.

[00:26:08] Speaker 02:
I think you've already given us some background on this, but as you know, Mr. Ulloa argues that the company's reasons for termination were entirely pretextual.

[00:26:19] Speaker 02:
What's your response to that?

[00:26:20] Speaker 00:
Absolutely, Your Honor.

[00:26:21] Speaker 00:
Ulloa has a number of pretextual theories that he throws at the court.

[00:26:26] Speaker 00:
None of them can get past the admitted documents that we have, and Mr. Ulloa's admissions in those documents, as it pertains to Ulloa's theory that you change the definition of immediate.

[00:26:40] Speaker 00:
In other words, that document doesn't include the word immediate and therefore it's a false reason.

[00:26:45] Speaker 00:
You're changing your reason.

[00:26:47] Speaker 00:
There are no less than, Ulloa admits that it was immediate reporting five times, Steve Linskog as supervisor admits that it's immediate reporting two times, Dan Reese admitted that it four times, Lisa Chamberlain admitted it three times, and Tony Daniels admitted it once as well.

[00:27:02] Speaker 00:
There's no argument that there was any change here.

[00:27:04] Speaker 00:
There's no genuine dispute.

[00:27:05] Speaker 00:
It was immediate reporting.

[00:27:06] Speaker 00:
Everybody knew it.

[00:27:07] Speaker 00:
In fact, every witness that was asked testified consistently with that expectation.

[00:27:11] Speaker 00:
If the court has one of Mr. Ulloa's theories of pretext in mind, I'm happy to respond to it directly.

[00:27:16] Speaker 00:
However, I think he's wholly failed to carry his burden at this stage to demonstrate some pretextual reason that would prevent summary judgment on this case.

[00:27:25] Speaker 02:
So basically, your argument is that by his own admission,

[00:27:28] Speaker 02:
or statements, he has undercut the pretext argument.

[00:27:33] Speaker 00:
Absolutely, Your Honor, and there's a number of different ways that that is true.

[00:27:37] Speaker 00:
Mr. Ulloa's other theory is, well, you delayed in your investigation of me, and that somehow creates this issue, right?

[00:27:44] Speaker 00:
But Mr. Ulloa's own statement, as early as June 25th, and this is in the record at 4ER0932, Ulloa's own statement to his doctor says, Bev, that's Beverly Grover, a Barrick employee,

[00:27:57] Speaker 00:
has told me the incident was under investigation and that I had to wait to come back to work anyway, so I have been off since.

[00:28:05] Speaker 00:
June 24th, same month he gets injured.

[00:28:08] Speaker 00:
He's not returned to work until October.

[00:28:09] Speaker 00:
He knew the whole time that this was going to be investigated.

[00:28:12] Speaker 00:
Barrick provided him with that leave to his benefit so that he could have an opportunity to recover, so that he could not have to worry about the stress of the investigation while he recovered and he could continue to receive those benefits.

[00:28:24] Speaker 00:
It also admittedly operates to Barrick's benefit because they're able to avoid interference claims

[00:28:31] Speaker 00:
under any of the contemporaneous or overlapping protected leaves.

[00:28:35] Speaker 00:
So it's beneficial for everyone involved to allow the employee to not complete the investigation until after they've been returned to work.

[00:28:42] Speaker 00:
As this court knows, when Dr. Reier returns Aloa to work full duty with no restrictions on October 2nd, 2019, Barrett completes their, or continues their investigation that had been paused when he was put out on leave, determines he failed to report an incident and injury, and properly proceeds with the adverse action.

[00:29:01] Speaker 00:
Your Honor, with the brief amount of time I have left, I wanted to add that there is significant additions in the record to citations to the record in the opening and reply briefs that the district court did not have the benefit of, and I believe that's proper for this court to consider.

[00:29:15] Speaker 00:
Thank you.

[00:29:16] Speaker 02:
Thank you very much.

[00:29:19] Speaker 02:
All right.

[00:29:19] Speaker 02:
Mr. Camp, you have a little rebuttal time.

[00:29:26] Speaker 04:
Thank you, Your Honor.

[00:29:27] Speaker 04:
So the appeals officer decision is a 2ER

[00:29:30] Speaker 04:
103 to 108, he was not paid for that time period.

[00:29:33] Speaker 04:
He had to go through months and months of litigation in order to get the benefits he was entitled to.

[00:29:37] Speaker 04:
They weren't just paying him, as was stated.

[00:29:40] Speaker 04:
The policy violation is interesting.

[00:29:43] Speaker 04:
The policy does not say immediate.

[00:29:45] Speaker 04:
And when we questioned people, they said, well, what you have to report is if there's something that causes damage to the equipment that makes it inoperable, or there is an actual injury, then you report that immediately.

[00:29:57] Speaker 04:
There was no damage to the equipment here.

[00:29:59] Speaker 04:
And Mr. Ioloa did not realize until two days later that he was actually injured.

[00:30:04] Speaker 04:
This is tough work.

[00:30:06] Speaker 04:
This is working at a mine.

[00:30:08] Speaker 04:
They get banged around all the time.

[00:30:10] Speaker 04:
So if they reported every time, they would do nothing but investigate these things.

[00:30:14] Speaker 04:
And so they say, no, if you really are hurt, he doesn't know that for two days.

[00:30:18] Speaker 04:
With respect to the EOC charge that is either incorrect or misleading, the other thing was the leave, reasonableness of leave, because I'm only at 20 seconds, I want to make this clear.

[00:30:32] Speaker 04:
There's no way it's a reasonable accommodation for an employer to say, we're just going to put you out on leave and starve you until you get tired and leave.

[00:30:41] Speaker 04:
Only if an employee asks for the leave.

[00:30:44] Speaker 04:
If they say, I need leave for two months because I've got to go through this treatment and get better.

[00:30:49] Speaker 04:
That would be reasonable, but an employer forcing it on an employee, unpaid leave, that doesn't allow them to work.

[00:30:55] Speaker 04:
That's not a reasonable accommodation.

[00:30:57] Speaker 04:
There's no way it can be.

[00:30:58] Speaker 04:
I'm sorry, I'm out of time.

[00:30:59] Speaker 02:
Thank you.

[00:30:59] Speaker 02:
Other questions by my colleagues?

[00:31:02] Speaker 02:
Thanks both for your argument.

[00:31:03] Speaker 02:
The case of Uloa versus Nevada Goldmine is submitted.