[00:00:03] Speaker 05:
The next case on calendar for argument is Lewis Williams versus San Francisco Bay Area Rapid Transit.

[00:00:33] Speaker 05:
Also, could we wait just a second to everyone get situated? Of course, Your Honor.

[00:00:37] Speaker 02:
Thank you.

[00:00:37] Speaker 05:
Thank you.

[00:01:04] Speaker 05:
All right, counsel, please proceed.

[00:01:06] Speaker 02:
Good morning, Your Honors. May it please the court. James Hamlin for Appellant, San Francisco Bay Area Rapid Transit District. I'd like to reserve five of my 15 minutes for rebuttal. Your Honor, the appeal of denial of BART's Rule 50 motion is now as controlled by this court's opinion in Peterson against Snohomish Regional Fire issued last September.

[00:01:34] Speaker 02:
As in Peterson, we have essential employees.

[00:01:39] Speaker 02:
All of Bart's workers and all of the plaintiffs in this case were declared to be essential workers, benefiting Bart's public transit services to the Bay Area.

[00:01:49] Speaker 02:
We have the Ninth Circuit in Peterson acknowledged and accepted rulings from the First Circuit and other courts that a COVID-19 health and safety risk is a viable basis for denying an accommodation as an undue hardship.

[00:02:09] Speaker 02:
And just as in Peterson, the undisputed evidence in this case showed that BART relied on public health guidance that was available at the time.

[00:02:18] Speaker 04:
So here's the problem that I'd like you to address with Peterson. Peterson was a summary judgment motion. It was not a motion to dismiss.

[00:02:26] Speaker 04:
Right? Correct. So that is based on the facts in that case. If there are facts that are different, then why is that controlling? And there does seem to be some facts that are different there. You had life-saving firefighters at issue in Peterson. You don't have that here.

[00:02:51] Speaker 04:
So why wouldn't we treat that as different?

[00:02:55] Speaker 02:
The specific facts of course judge Nelson are different. I'll note that our rule 50 motion is conceptually and analytically the same as a summary judgment motion your honor so well familiar with that. So the specific facts of the cases are slightly different of course I don't represent an employer of an employer who had firefighters we acknowledge that are briefing the essential facts, the facts that govern the outcome are the same okay.

[00:03:23] Speaker 05:
The import of Peterson to me is that for the first time, we get a rubric for how to look at these cases, which could have assisted the district court in framing the jury instructions and in guiding the jury to look at the evidence. That's the difficulty I'm having with letting this case go forward without the district court having the benefit of Peterson. What's your response to that?

[00:03:52] Speaker 02:
I think that, Your Honor, the evidence came in, right? We had a trial. In fact, we had two.

[00:03:58] Speaker 02:
The evidence is sufficient to support judgment as a matter of law in Bart's favor. Under Peterson?

[00:04:04] Speaker 05:
You think the evidence that you submitted is sufficient to, under Peterson?

[00:04:10] Speaker 02:
Absolutely, Your Honor, yes. And I can explain why. I mean, Peterson, first of all, Peterson, Your Honor, and Judge Nelson, Peterson is a set of strong facts, strong employer facts. But Peterson also explicitly references the First Circuit's decision in Roderick and calls it very similar. Roderick, lesser facts than ours. Roderick involves a television cameraman, okay? He's not an essential worker. And it's just access to the employer's office, okay? And Roderick is exactly, the employer did exactly the same process that BARC did here.

[00:04:43] Speaker 02:
It looked at the prevailing public health guidance, which instructed employers that vaccination was safer than any combination of other interventions.

[00:04:53] Speaker 04:
Well, but, counsel, that is such an overloaded statement. Of course that's true.

[00:05:00] Speaker 04:
If we'd all sat in our homes, that would have been better, too.

[00:05:04] Speaker 04:
I mean, I don't even understand how that enters into the equation. The equation is how do we make these decisions in real life? And real life decisions were being made in different ways. This went to a jury and a jury said there was no there was no reasonable there was no undue hardship in doing something less. I mean, you understand how difficult that is to overturn a jury verdict in that sense.

[00:05:32] Speaker 02:
Well, Your Honor, conceptually, on Rule 50, we're not supposed to be deferring to jury verdicts on Rule 50. This is a motion that's brought at the conclusion of evidence. The district court has discretion to defer taking up and ruling on the motion until after the jury's verdict is taken. But this is an ex ante analysis, Your Honor, not an ex post.

[00:05:49] Speaker 04:
Hold on. Okay, let's back up. Judgment as a matter of law is appropriate only when the only conclusion that a reasonable jury could draw is contrary to the jury's verdict. Yes, that's correct.

[00:06:01] Speaker 02:
You agree with that? I do.

[00:06:02] Speaker 04:
And it's very different than what you were just saying.

[00:06:05] Speaker 02:
The Supreme Court has made clear that the Rule 50 analysis is the same as a summary judgment analysis. We cited that authority in our brief. It's well established, Your Honor. There is not supposed to be jury deference in a Rule 50 motion.

[00:06:18] Speaker 06:
So you're suggesting or arguing that there were no disputed issues of fact.

[00:06:24] Speaker 02:
Exactly.

[00:06:25] Speaker 06:
No material disputed issues of fact, and so the district court should have granted summary judgment or should have granted your Rule 50 motion.

[00:06:31] Speaker 05:
Taking the facts as found by the jury.

[00:06:34] Speaker 05:
Taking the facts as found by the jury.

[00:06:36] Speaker 02:
Taking the facts as they could reasonably be found by the jury, Your Honor, yes.

[00:06:39] Speaker 05:
There's only one outcome.

[00:06:41] Speaker 02:
That's right, because it was uncontroverted, uncontroverted, Bart's workers are essential. All the six plaintiffs are essential. Uncontroverted, Bart followed the public health guidance, which instructed that any set of interventions other than vaccination for in-person work, Judge Nelson, would impose a greater health and safety risk for other workers and patrons. That's uncontroverted. Uncontroverted that these plaintiffs could not perform the essential job functions remotely. And uncontroverted that any leave would be indefinite.

[00:07:10] Speaker 05:
Did the Bart officials...

[00:07:13] Speaker 05:
testify consistently that they were following the guidance?

[00:07:16] Speaker 02:
Absolutely, Your Honor.

[00:07:17] Speaker 05:
Every single one of the... Absolutely, Your Honor.

[00:07:20] Speaker 02:
Yes, yes. And I would refer you specifically, Your Honor, we can look at what Bart was saying at the time, okay? FER 102, that's the memorandum issued by Bart's general manager when the vaccine requirement is announced.

[00:07:33] Speaker 06:
We're talking about what happened at trial.

[00:07:35] Speaker 02:
Yes. Yes.

[00:07:37] Speaker 06:
But you're suggesting that if there's guidance from CDC or NIH or some other governmental organization, that should be dispositive. And if the BART employees or experts testified – well, the experts weren't consulted, and they acknowledged in cross-examination that they just came in after the fact, so they had no input into these decisions.

[00:07:58] Speaker 06:
But Bragdon, the Supreme Court said that these guidelines – are just recommendations. They do not assess the level of risk, and that the views of these organizations are not conclusive, which means this isn't a question of a matter of law, that because these organizations have promulgated guidelines and BART relied upon them, that the jury could not determine that there were some other measures that could have been taken, and that this was not an undue hardship to the employer.

[00:08:25] Speaker 02:
Let's start with Brighton, Your Honor. At page 650 of that opinion, the Supreme Court said that special deference is to be given to public health authorities such as the U.S. Public Health Service.

[00:08:36] Speaker 06:
Well, what I read to you was a quote from Bragdon. So they may say that there should be deference, but they also say they're not conclusive. That's a quote. And, quote, they do not assess the level of risk.

[00:08:48] Speaker 02:
What the Supreme Court also said, Your Honor, is if a plaintiff wants to challenge the prevailing public health guidance, and this is a quote, again, from page 60, they must, quote, refute it, citing a credible scientific basis for deviating from the accepted norm.

[00:09:03] Speaker 06:
Here the plaintiffs introduced no evidence that— But does that mean that—so they challenged the expert testimony and cross-examination. What you're suggesting is they were required to present an expert and that it wasn't sufficient for them to make arguments or cross-examine those experts to discredit them so that the jurors were free to either accept that testimony or not.

[00:09:27] Speaker 02:
What they were required to do was to establish that Bart was not actually following the prevailing public health guidance from the from the public health authorities. They could have committed said, well, Bart, you say the CDC said that vaccination was safer than other interventions. But in fact, the CDC said CDC said this other thing. Because an employer, Your Honor, has to be able to follow – in the middle of a pandemic, an employer has to be able to follow public health guidance.

[00:09:52] Speaker 04:
Hold on, counsel. We don't disagree with that. But under your theory, do you understand the import of your theory is that the minute that a public health advisory is given out, religious rights have zero effect. Under your theory, they could have said – 181 religious exemptions came in. You could have said – Zero. We don't care. Public health has spoken. End of story. Where is your evidence that you are taking on far more than you need to to win this case?

[00:10:26] Speaker 04:
And I don't understand it because if we were to rule on your theory, we would say Title VII has no effect. We would say the religious freedom free exercise clause has no effect.

[00:10:43] Speaker 02:
Your Honor, I'm not asking for that ruling whatsoever.

[00:10:45] Speaker 04:
Well, you absolutely are because you're saying we get to hide behind the public health statement and that's the end of the story. Anything else would not be – it would be an unburdened – it would be unburdened to deviate from that in any way, shape or form.

[00:11:05] Speaker 02:
What BART, like any employer, had to do was to consult the prevailing public health guidance and reasonably apply that to its employee situation.

[00:11:13] Speaker 05:
But you also have to consider the individual rights of your employees. That's the piece that's missing to me from your presentation, is that you're not telling us how you layered all of that. Because your employees also have rights that go up. above and beyond what the public guidance is, and that has to be considered in the mix. And that's the difficulty I think we're having is Peterson does say, does give you a very strong argument, but it doesn't, in my opinion, relieve you of the obligation to also consider your employees' individual circumstances.

[00:11:55] Speaker 02:
Of course, and Bart did that. Bart went employee by employee. These documents are in the record. They're cited in our brief. BART created a matrix and said, here are all of the accommodations that we have considered, and here's why, unfortunately, we think they don't satisfy the standards set by the CDC.

[00:12:10] Speaker 04:
How many religious accommodations did you grant? Excuse me? How many religious accommodations did you grant at the end of the day?

[00:12:16] Speaker 02:
None, because no BART worker could work remotely.

[00:12:19] Speaker 04:
Yes.

[00:12:20] Speaker 02:
Yeah. Now, that is, by the way, not in evidence on our Rule 50 motion. Right.

[00:12:25] Speaker 04:
Because it's only these six. Excuse me? Because it's only these six that we're dealing with.

[00:12:29] Speaker 02:
Yes, that was excluded by an unlimited ruling. And, Your Honor, I want to be clear. BART just didn't – BART went through months of process with these. And it was employee by employee. They interviewed people. They invited employees. Give us ideas on how you can do your job. And at the end of the day, BART had the public health authorities saying, look, If anyone is working in person around other workers or patrons unvaccinated, they are increasing the COVID-19 risk level. And BART determined, based on that guidance, that the only way it can accommodate people is if they can work remotely.

[00:13:03] Speaker 04:
Of course that's right. But that's not what the test is. The test is not, are you increasing it?

[00:13:12] Speaker 04:
Oh, it's absolutely not. And this I mean, the fact that you're arguing that is what's what's troubling me, because, again, of course, it's increasing it. We had this debate. The public had this debate. What is the right amount of risk? We could have all sat in our home. Don't roll your eyes at me. We could have all sat in our homes. And we could have reduced the risk. You weren't requiring that.

[00:13:36] Speaker 02:
No, of course not, Your Honor. But my point is, if you look at Peterson, you look at how is an employer supposed to come up with this risk quanta, Judge Nelson? We're employers. We're not public health agencies. And employers in the middle of a pandemic, the darkest days of the COVID-19 pandemic, can only look to the public health authorities to understand what they're supposed to be doing.

[00:13:56] Speaker 04:
But the public health authorities never said you couldn't rely on masks, you couldn't rely on... Distancing.

[00:14:04] Speaker 02:
I beg to differ, Your Honor, what the public health authorities said.

[00:14:09] Speaker 04:
Your own witness said that at testimony at trial. Said that there were other ways in which this could have been minimized.

[00:14:18] Speaker 02:
They said there were other things that they did to try to manage the risk before vaccination became an option, Your Honor. I only have two minutes left. I don't want to burn all my time.

[00:14:26] Speaker 05:
All right.

[00:14:28] Speaker 05:
Thank you.

[00:14:36] Speaker 01:
Good morning, Your Honors. Matthew McReynolds. First up, on behalf of five of the Lewis Williams plaintiffs and appellees, I'll try to be very brief and just pick up on the prior colloquy. First of all, the standard. I think, Your Honors, we're very attuned to the fact that And an appeal from a Rule 50 motion, we do take the evidence in the light most favorable to the jury verdict. We have a number of authorities in our briefs that speak to that.

[00:15:09] Speaker 01:
One of them, the Escriba case that I think you were involved in, Judge Rawlinson, I think has a great rule statement on that, but there are several others as well. And if you follow the Supreme Court authority that my friend Mr. Hanlon was alluding to, the Reeves v. Sanderson Plumbing Company case, you will affirm. Quickly on Peterson and Bragdon as they relate to the facts of this case. First of all, there are at least three things from Peterson that I think are fundamentally distinct from this case and that don't require you to have a broad ruling here in the same way.

[00:15:49] Speaker 01:
First of all is, of course, the physical aspect, the fact that there were firefighters in close, confined spaces. They were administering CPR. They were dealing with medically vulnerable patients. They couldn't mask up or socially distance all the time. The second is operational, and the fact that in Peterson, you had an employer that was experiencing a critical labor shortage that had nearly a quarter of its employees

[00:16:19] Speaker 04:
submit religious accommodation requests that realistically... So, counsel, this is a helpful rendition of Peterson, but I think Judge Rawlinson asked the question that, look, even if Peterson is not this positive, does it need to go back for the district court to consider the Peterson rubric under Peterson? A judgment is a matter of law.

[00:16:44] Speaker 01:
I don't think so, Your Honor, because Peterson ultimately looks to Groff, feed to joy, the way that this court should and the way that our jury did. And they wrestled with the fundamental question of excessive or unjustifiable burdens. And the last thing I think about Peterson that is very important, though, is that even though this was a distinct situation, my friend in his brief refers to it as an extreme circumstance, even so, the employer in Peterson did offer an accommodation in the form of long-term leave, and they did ultimately rehire many of those plaintiffs.

[00:17:28] Speaker 01:
And that point about long-term leave is important because not only did one of BART's experts testify, their second expert testified, I believe it said page 2401, in the record that the best approach to COVID actually would not have been vaccines. It would have been sending everyone home. But our lead plaintiff, Tanya Lewis-Williams, was at home on long-term leave and she was still fired by BART.

[00:18:00] Speaker 01:
She had no scheduled date of return. She was deemed a danger. They didn't actually even reach the accommodation question with her or with three of our other plaintiffs because they fired them based on their religious beliefs and then backfilled their purported undue hardship later. And the last thing I want to mention in relation to that, if I could, is that not only was long-term leave an option considered in Peterson.

[00:18:32] Speaker 01:
It was an option considered by BART prior to the COVID pandemic. Their lead decision maker, Mr. Maplestone, testifies, I believe it's at page 2596 in volume 14, that they had granted long-term leave up to two years for employees in certain circumstances They just weren't willing to consider that for any of the requesters who who presented religious accommodation.

[00:19:03] Speaker 04:
And that was all presented to the jury.

[00:19:05] Speaker 01:
Yes, sir. That's in that's in the trial transcript. That's that's part of the many, many hours of testimony that the jury carefully considered. If I could make one point about Bragdon.

[00:19:18] Speaker 05:
Counsel, your time has expired, so please wrap up.

[00:19:21] Speaker 01:
Sure. Last point on Bragdon. I think Judge Beatty is right on in terms of your assessment of that. We completely agree with that understanding of Bragdon.

[00:19:33] Speaker 05:
Yeah, but Peterson also has something to say about that in terms of reliance on the – expert opinions, scientific opinions from those who are designated to make those calls.

[00:19:46] Speaker 01:
Correct.

[00:19:47] Speaker 05:
There's more than one statement on that. Thank you, counsel. Thank you.

[00:20:02] Speaker 03:
Good morning. Kevin Snyder for Lewis Williams et al. on the Cross Appeal. May it please the court.

[00:20:09] Speaker 04:
Can I just ask out of the get-go, is the cross-appeal relevant if we, is it only kick in if we were to reverse on the JMOL?

[00:20:20] Speaker 03:
It only kicks in if you reverse. If you uphold the jury verdict, then the cross-appeal is of no moment.

[00:20:33] Speaker 03:
In the event that you decide to consider the cross-appeal, It's a free exercise claim on a 1983 cause of action. And the issue is whether review of employee religious exemptions were generally applicable. We believe that the district court on summary judgment made an error of law. And this is the error.

[00:20:58] Speaker 03:
He said that the judge also said that a protocol for systematic review only falls outside the of a law of general applicability if there is unfettered discretion. This court, and he's basing this on a statement from Fulton v. City of Philadelphia. This court in a fellowship of Christian athletes v. San Jose Unified disagreed and said that the assertion that Fulton was only concerned with unfettered discretion is overly narrow.

[00:21:36] Speaker 03:
Properly interpreted, this court said in a non-bonk decision, Fulton counsels that the mere existence of a discretionary mechanism to grant exemptions can't be sufficient.

[00:21:49] Speaker 05:
You're talking about facts in talking about the other cases, but this was a total... Fellowship of Christian Athletes was a totally different scenario. It was like, who would be allowed to join... which clubs and school, right? So that was a totally different scenario than we have here.

[00:22:10] Speaker 03:
It's a different scenario. What we are addressing is the rule of law.

[00:22:16] Speaker 05:
But that's the argument the other side made about Peterson. So either the facts matter or they don't.

[00:22:23] Speaker 03:
Facts matter. We think, though, that because Judge Alsup ruled specifically and misstated the rule of law, then that is an error.

[00:22:37] Speaker 05:
You have 33 seconds.

[00:22:39] Speaker 03:
Yes.

[00:22:40] Speaker 03:
The other thing is that the court made an error of law when they said that case-by-case review only falls out of general applicability if it's done by statute. I'm sorry, it's opposite. If it's done by statute, And it's not a a doesn't fall outside of general applicability that misstates fulton and with that I'm I'm my time's expired now deal to the council for Mister Rivera thank you.

[00:23:21] Speaker 00:
Good morning may please the court, my name is gauge fender I represent Ryan Rivera individually so I won't try to repeat what's already been said I had two kind of discrete issues that I think were unique to Mr. Rivera that I wanted to drill down on.

[00:23:39] Speaker 00:
Two of the accommodations that were requested by Mr. Rivera were remote work and unpaid leave.

[00:23:49] Speaker 00:
The jury heard testimony that Mr. Rivera was a storekeeper. That was his position. The jury heard testimony that other storekeepers were accommodated during the pandemic by being allowed to perform remote work.

[00:24:04] Speaker 00:
The jury also heard testimony that it was BART's policy to allow for unpaid leave of its employees for up to two years. These are two specific accommodations that Mr. Rivera requested.

[00:24:17] Speaker 05:
Did the jury find in his favor?

[00:24:18] Speaker 00:
They did.

[00:24:20] Speaker 05:
Okay, and so are you making these points in the event that the jury verdict is overturned?

[00:24:26] Speaker 00:
I'm making these points. I guess what I'm specifically making these points for is that even if this court was to consider sending the case back to be considered under Peterson, I think the facts vis-a-vis Mr. Rivera still warrant upholding the verdict based on the facts that were presented to the jury because he could have been accommodated by being allowed to remote work and that accommodation was denied him even though it was given to other employees so other storekeepers were allowed to work remotely mr rivera was den was not because mr rivera had a religious objection to the covet vaccine covet 19 vaccination

[00:25:16] Speaker 05:
Was there a reason given as to why he was not allowed to work remotely and other individuals were allowed to work remotely?

[00:25:24] Speaker 00:
The only position that was taken by the other side was that there were no positions open at the time that he requested that accommodation. Other storekeepers were working in those positions.

[00:25:38] Speaker 00:
Those storekeepers could have been moved to the warehouse to work in person, and Mr. Rivera could have been allowed to work remotely. Well, why?

[00:25:45] Speaker 04:
Because they had been willing to take the vaccine?

[00:25:48] Speaker 00:
Correct.

[00:25:49] Speaker 00:
So under Groth.

[00:25:52] Speaker 04:
But what's the requirement that they would have had to do that? I mean, there's a whole variety of reasons they might have been working remotely. They may have had child care issues. And just because they take the vaccine, they have to give up that right in order to accommodate someone else?

[00:26:08] Speaker 00:
I would say that under Groth, BART had to show why it would be unduly burdensome to make that accommodation.

[00:26:19] Speaker 00:
So we say there's an accommodation available. It is now being used for other individuals. Your duty is to show why it could be used. Why that would be unduly burdensome and why that would be a substantial cost to the business to make that switch, to provide that accommodation.

[00:26:37] Speaker 05:
They were relying on the expertise and guidance from the officials, state and federal. What's your response to that?

[00:26:48] Speaker 00:
My response to that is that, well, two things. I have this kind of unique set of facts. So unpaid leave or remote work neutralizes any threat.

[00:27:03] Speaker 00:
So there is no risk to BART at that point. It is a reasonable accommodation.

[00:27:09] Speaker 00:
And they admit that not being on the BART premises.

[00:27:11] Speaker 04:
Well, it might be a reasonable accommodation, but I guess their argument is, I mean, this goes back to my colloquy with your opposing counsel. They seem to be suggesting that anything that deviates from the medical advice is an undue burden per se.

[00:27:30] Speaker 00:
So to that specific point I would agree with my colleagues and say that the jury heard evidence of the accommodations that were available besides remote work and unpaid leave including in case of Mister Rivera he could work in isolation he testified to that he could socially distance he could rely on masks he could rely on sanitation all that stuff the jury took those accommodations into consideration and decided that they were not unduly burdensome.

[00:28:03] Speaker 00:
So I think under Rule 50, the verdict stands. They heard the evidence. They considered it. They made their rendering.

[00:28:15] Speaker 04:
Does your client also have a reinstatement claim? You're not advancing that right now.

[00:28:20] Speaker 00:
I'm not advancing that right now. That is a very important issue to Mr. Rivera. We briefed it.

[00:28:27] Speaker 05:
But he made an election for front pay.

[00:28:30] Speaker 00:
He did make an election for front pay, and we conceded that. And that's what he got, right? And that is what he got.

[00:28:35] Speaker 06:
Do you acknowledge that if we were to decide that this should go back for reinstatement, he would have to...

[00:28:45] Speaker 00:
He would have to give up the front pay award because I didn't see you would have to elect a remedy We can see that he can't give up He realizes that that the money he received from the jury verdict would have to be given back before he could pursue reinstatement He is aware of what the law says in terms of those those remedies and The last point that I'd like to address is in terms of the unpaid leave part says that that would not be a reasonable accommodation because it would be indefinite again the art testified that it was its policy was to allow up to 2 years of leave to its employees.

[00:29:35] Speaker 00:
Again, there was an accommodation available under its policies to allow for a period of unpaid leave. Had Mr. Rivera been granted that accommodation, he would have returned to work after the mandate was lifted 18 months after his firing.

[00:29:58] Speaker 00:
I think that when an employer believes that granting medical leave would cause undue hardship, the court should first look to the employer's leave policies. And if the employer's policies provide for the kind of leave that the plaintiff sought, the court should presume that granting the plaintiff's request would not cause undue hardship. And again, under Groff, that would have been their burden to show, hey, granting an unpaid leave of this amount of time would have cost us this and operational difficulties brass tax dollars whatever none of that evidence was presented to the jury so again under their affirmative defense they did not meet their burden.

[00:30:40] Speaker 00:
If there's no other questions I will yield the balance of my time thank you thank you your bottle.

[00:30:51] Speaker 02:
We have two minutes left, so I'm going to get to the most important point first, which is that if your honors don't agree with our position that Peterson supports Jamal on appeal, then I absolutely would urge the panel to send the case back to the district court to reconsider the ruling in light of the court's guidance. I think that would be an appropriate outcome if your honors don't agree with our position.

[00:31:13] Speaker 02:
I do want to address just briefly MS. Lewis-Williams and Mr. Rivera to respond to my friend's arguments. The issue with Ms. Lewis-Williams is she was out on a temporary disability leave and she could be returned to work at any time with little or no notice to BART that's in the record. So since she could be ordered to return to work Literally the next day, Bart had to ensure that she was up to date with all employment requirements, including the vaccine policy.

[00:31:39] Speaker 06:
But she was willing to, is the record that she was willing to remain on leave for up to two years without pay?

[00:31:48] Speaker 02:
I don't think there's anything in the record on that, Your Honor, and I will, addressing that point, The two years of leave, that's medical leave, which is different, and it's different, of course, under the ADA, which has different policies than Title VII.

[00:32:00] Speaker 05:
But when you're searching for accommodations, you know, we were in a very difficult period, a period that no one had ever had to grapple with before. Sure. So those niceties didn't necessarily keep Bart from considering the two-year leave.

[00:32:20] Speaker 05:
leave, right? Even though it wasn't medical, it was somewhat analogous because it was a medical emergency that was consuming the whole nation.

[00:32:30] Speaker 02:
Yes, Your Honor. And here's what the record says about that. At the time, BART understood that its vaccination policy was going to be an ongoing employment requirement. It didn't anticipate a date when the vaccination requirement would be rescinded. So that's why it was considered at the time in this small window to be a permanent ongoing employment requirement. Mr. Maplestone testified to that. And this court's authority, I believe the case's maker, it's cited in our briefing, is that a leave that is not defined in term at the outset is indefinite and is not a reasonable accommodation as a matter of law.

[00:33:07] Speaker 02:
So that's the law in this circuit. All right. Thank you, counsel. All right. Thank you.

[00:33:10] Speaker 05:
Thank you to all counsel for your helpful arguments. The case just argued is submitted for decision by the court