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Case 14-5053, Edna Doak, Appellant, versus J. Charles Johnson, Secretary of U.S.

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Department of Homeland Security.

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Ms.

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Hassan, the appellant.

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Mr. Shulong for the appellee.

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Good morning, Your Honor.

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Nabiya Hassan for it.

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The appellant, Edna Doak.

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May it please the Court.

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This case is predicated upon this Court's recent decision, Salomon v. Sallet, which overturns the District Court's ruling below, which held as a matter of law that a maximum-flex schedule was unreasonable.

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this court's recent decision in Sullivan overturns that verdict.

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Its predecessor is what the court below relied in its entirety in dismissing my client's case on summary judgment, holding as a matter of law her request for accommodations for maximum schedule were unreasonable.

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Is that the only?

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I took it that there were two grounds for the summary judgment.

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One,

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the ground that you're now talking about, which is whether or not a flexible plan was permissible or not.

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But the second was whether she could do the work even with a flexible plan.

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Your Honor, that is precisely the issue here.

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That is a contested issue of fact.

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Her testimony averts that her job duties could be performed with a maximum schedule.

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It's not a question of her job duties.

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It was a question of her ability in light of her disability.

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That is, whether she was an otherwise qualified individual with a disability, because even with the accommodation, she was AWOL, she was late,

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She was absent.

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And to be honest, I don't see anything in your brief that even addresses that question.

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I do see you make the argument that, with respect to Solomon and otherwise, that a flexible plan is a permissible accommodation.

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I think you're obviously right about that.

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But the second decision of the court in which she lays out

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extensively the evidence of how many days she didn't show up for work at all or showed up only a part of a day or a half of a day.

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Your Honor, if you look at her performance review, she was meeting all expectations even without the accommodation.

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Where is that performance review?

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One second, if I have a moment to cite to the record.

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Please.

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Is that a that's a performance review for which period this is for

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This review is dated May 12th, 2010.

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And the appraisal period is from April 1st, 2009 to March 31st.

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And this most recent review is dated May 12th, 2010.

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Could you give me that page side again?

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Sure.

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It's 116.

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The part of the district court's opinion that I'm focusing on, which starts at J395, is all about what happened after April

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from April 2010 on.

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Does she have a performance review for that period?

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Your Honor, I don't believe that she had the opportunity to be appraised, but her performance, her attendance was improving.

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She was able to meet the requirements of her position.

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No, her attendance wasn't improving.

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I mean, you said there was two weeks where it went up, but then it went down again after that, right?

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Overall, Your Honor, it was improving.

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Where's your evidence for an overall improvement?

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I thought it was down, down, down.

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She had a two-week period where it seemed to go up a little bit.

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got to 85%, which is the week you cite, and then it went down again after that.

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Am I wrong, factually?

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No, you're not.

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That's correct, Your Honor.

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That doesn't sound like improving.

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Overall, based on what it was, it has significantly improved.

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And what she was seeking, Your Honor, was just a flexibility here.

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And the dependence issue spurred from the lack of accommodation.

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She was looking to come in progressively earlier.

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She wanted to work towards a 9 AM start time.

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So she initially requested to begin work from 11 a.m.

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This was denied.

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She requested, can I comment 10?

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This was denied.

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And she wanted to work towards a 9 a.m.

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schedule while the medications, the effects of her medication which she was taking would wear off.

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This was denied.

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But didn't you have the separate issue that even if she'd been able to come in at 11, she could get a disabling migraine and not be able to work that day at all?

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She also requested, Your Honor, to be able to make up the work during the weekend hours.

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And she was fit to return to work with an accommodation.

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This is what her physician said.

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The documentation that she provided to... Where did her physician say she could do this job with an accommodation?

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I didn't think the physician had addressed the consequences of the migraines.

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Their independent review said that who did not examine my client felt that she could not perform it.

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But her physician and my client believed that had she been given this accommodation, she could meet the requirements of her physician.

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The accommodation was then that the work would be done on weekends or?

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That was one of the accommodations she was seeking.

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And what evidence did you have that the job did not require her to do the work at a time when she could interact with other employees?

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Your Honor, her testimony maintains that she was not required to travel offsite in more than a year, that the basic functions of her position could be performed via telecommuting.

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What detail did she give that she didn't have to be there to interact with other employees?

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the core responsibilities preparing budget proposals could be done and appellee hasn't cited headed to any documentary evidence.

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They're citing to testimonial evidence, which again is a preview of the jury to evaluate.

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And if their credibility issues adhere, this is precisely why summary judgment was inappropriate.

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Didn't the Appolito site to, I can't remember the name of the document, but basically said that even employees under flexible schedules need to be in the office between, I think it's the hours of 9 and 1030 and 1 and 230 or something.

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That was a one-off hand recurrence for one training, Your Honor, but the bulk of her responsibilities, this is a short-term accommodation.

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This is not, you know, for indefinite.

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This is a short-term accommodation while her medication, while she adjusted to her medication, which was denied.

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It wasn't as if she was seeking this long-term, intermediarily.

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And this was an employee who had been with the government for several years and to be denied this accommodation, which resulted in the disciplinary issues that resulted, which leads on to the retaliation component of her claim, where

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It's immediately after she began requesting the accommodations.

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They began removal proceedings against her.

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They issued a notice of proposed removal to... What was the date of the notice?

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I believe it was June, Your Honor, but just one moment to consult the record.

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When did she first request accommodation?

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She requested accommodations.

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The removals were in August, and she requested in the summer.

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So it was less than two months.

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This was already during the period of tardiness and being AWOL, right?

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The tardiness, again, resulted from her disability.

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Two different questions.

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Now we're talking about the retaliation question, and government's position is that she wasn't fair, and that was a

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a non-pretextual reason for dismissing her.

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Now, you may still have an accommodation claim, but merely on the question of retaliation, you have to overcome their bona fide reason, namely she wasn't present.

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It's not just enough to say, well, she would have been present with an accommodation.

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That's enough for your accommodation claim, but it's not enough for retaliation claim.

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But Your Honor, the fact that they recommended that she seek accommodations after she returned from FMLA leave.

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And when she didn't seek those accommodations, they didn't want to afford her all the accommodations she requested.

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And then finding that she was too much trouble for them began to remove her from her employment.

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This speaks highly of a retaliatory agenda.

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They don't want to accommodate this individual.

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And now when she's requesting these accommodations, they want to.

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So they're both basically the same question then, right?

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They're interconnected, but... If you lose the accommodation question, then you lose the retaliation question?

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Not necessarily.

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Well, if there's no basis for the accommodation argument, then you have what left on retaliation.

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The fact that she sought those accommodations, so whether or not those accommodations were warranted is not necessarily... But if it turns out that the accommodation argument fails and all were left with her being absent 50% of the time, that seems like a non-protextual argument for reason for letting somebody go.

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Not when her attendance is improving and her performance reviews are meeting all expectations.

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That again goes to the accommodation question.

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Let me ask you, what about the judge cites Dr. Barbaro's memorandum?

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Which one is Dr. Barbaro?

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Dr. Barbaro is the district court below.

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Who is Dr. Barbaro?

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Dr. Barbaro is the examiner that they evaluated in terms of

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It's a government doctor?

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Yes.

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And then from her deposition he cites she would likely not be able to work either at home or at the office when she was suffering from a migraine.

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Your Honor, this again is an issue of fact because the core requirements of her position, you know, she's not a physician.

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I mean, respond insights to cases where these are like critical care nurses.

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This is not her position.

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The core requirements of her position could be done at home.

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If you choose not to give credence to her testimony for that, that's fine.

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Does she have any evidence?

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This is her own deposition.

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She says she wouldn't be able to do it either at work or at home or at the office.

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That's from her own deposition.

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On that day, if she's suffering a disabling migraine, she could not.

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But that does not mean that she cannot perform the overall functions of her position had she been given the opportunity to make up that time at a different interval on her own schedule, temporarily while she adjusted to her medication.

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It just seems as to that point you have to have some evidence other than her just saying so that the job did not require in-person presence for some hours of day to get it done.

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What evidence did you have that in-person presence for some hours each day

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Your Honor, her testimony is sufficient, and again... What testimony is sufficient on that?

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Her testimony where she says that the core functions of her position did not require... That one sentence?

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That's because that's all I saw was that one sentence.

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I mean, this is... There's no documentary evidence that's cited by appellees to show that she was required to work.

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Their citation is to their interrogatory... I'm asking you because you had a burden to come forward at summary judgment with something more than one sentence.

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conclusory sentence in a deposition.

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Did you have evidence that other people were allowed to work weekends or evenings or go without being in the office or that she could have telephoned it in?

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Your Honor, it is our belief that now after this motion has been briefed that they have changed their policies and a number of employees are able to telecommute.

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But at summary judgment stage, did you come forward with any of that?

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Not at that point, but

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after the briefing of the motion.

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But the summary judgment decision relied entirely on Solomon.

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The essence of the decision was that her accommodation request was unreasonable as a matter of law.

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The crux of the decision was based upon this decision was overturned.

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So whether or not her accommodation

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The district court first said what you said and then said, even if Ms.

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Doak's physical presence at work was not required, she still was not able to telework effectively because her disability incapacitated her.

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regardless of where she was, and thus she could not perform the essential function of her job, even with an accommodation.

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That's a separate argument, right?

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That's the appellee's argument.

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No, I'm reading from the district court.

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That's the argument that they gave Creedence to, presented by the appellee.

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My client believes that had she been given an accommodation, maybe to make up the time.

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If she has a disabling day where she's unable to perform the functions of her work, she's disabled for that specific day, she could then make up the time when she's feeling better.

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That's the essence of an accommodation.

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It's not as if she's completely disabled and unable to perform her functions at all, and she's suffering this severe migraine.

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And again, this is temporary until the effects of her medications have subsided.

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So your argument is that even you agree that if she's got a bad migraine, she can't do any work that day, and she can't come in, or if she's at home, she can't work.

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But that she could, your argument is that she could make up that day on a weekend.

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If they engage into an interactive process to afford other accommodations, she could perform the essential functions of her position.

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Whether or not she can adhere to a rigid schedule, you know, that is precisely the issue.

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She could not.

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She needed this accommodation.

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Had she been given this accommodation, she could perform it, maybe not to the specific schedules that respond.

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But this is a temporary measure.

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While the effects of her medication, she was undergoing treatment and once

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that had subsided, she could return to resume her normal duties.

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Does the record say how frequent her migraines were?

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Your Honor, I don't believe that there was a specific frequency that this has to do.

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It's just that when it would occur, it would be very disabling.

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But again, the issue was attendance that was residing because she could not come in at 9 a.m.

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precisely.

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So if she came in 930 a.m., you know, her supervisor would be timing her, saying that you're 902, you're late.

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And this is the government.

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Every employer has, the larger the entity, the more flexibility they should have in affording these accommodations.

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And again, if they're contending that her position requires her presence at work, this is contrary to her testimony.

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And this is precisely why this case should be remanded to the district court below.

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Because again, there's no documentary evidence cited by them besides the testimony of her supervisor, but I don't see anything specific in her job duties.

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Yes, there were trainings that occurred, but she maintains that this was, she hadn't been required to travel in over a year.

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And again, this is a temporary measure for a couple of months until the effects of her medications subside.

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Other questions?

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Thank you.

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We'll hear from the government.

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I may piece the court.

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My name is John Chuong.

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I represent the United States Coast Guard, a component of the Homeland Security.

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Before I begin, I want to address a question that Chief Judge Gartner brought up, whether Ms.

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Doak could have performed the essential functions of a job, even with the accommodations, as the District Court observed.

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The answer is no.

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Dr. Bobano, as Your Honor mentioned, was Ms.

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Doak's

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own doctor, who wrote in a July 2010 memorandum in which she said, Dr. Babano said, when Ms.

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Doak experiences an onset of the migraine, she would be incapacitated totally.

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But her counsel's response to that is that she doesn't have that migraines all the time, and it's only for that.

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impliedly short period of time that she's unable to work.

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What is the answer to the question?

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I'm not sure what all that time means, but we do have two pieces of evidence that show that her migraines was pretty much very daily, if not every two or three days.

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For example, the first example is the dozens of days listed in the notice of propose to remove her

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site number is 198 to 200.

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In that notice to propose to remove her, her supervisor listed two pages of days when she missed work because of migraines.

[00:18:04] Speaker 05:
Do we know these are all migraines?

[00:18:06] Speaker 02:
Well, the other, I do not, in that document, it does not say so, Your Honor, but the overall context of the facts in this case, it was because of her migraines that she has been calling in sick.

[00:18:19] Speaker 02:
The second piece of evidence is at JA 648272.

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In that document, her supervisor document.

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I'm sorry, what page?

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468 through 72.

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2472.

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In that document, her supervisor documented every single day when she called in sick because of migraine issues.

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And in that document, it listed from July of 2009 through September 28, 2010.

[00:18:46] Speaker 02:
And so... I'm sorry, is that in this... That's the appendix, Your Honor.

[00:18:51] Speaker 05:
I don't have a 468.

[00:18:54] Speaker 01:
Can I just say something?

[00:18:56] Speaker 01:
Is that the supplemental appendix?

[00:18:57] Speaker 01:
Yes, Your Honor, that was the supplemental.

[00:18:59] Speaker 05:
The sealed?

[00:18:59] Speaker 05:
I've got the supplemental appendix.

[00:19:01] Speaker 05:
It starts on 473.

[00:19:01] Speaker 05:
Mine starts on 473.

[00:19:02] Speaker 05:
Did I not get all the pages?

[00:19:06] Speaker 01:
There's another part that I think began with page 473.

[00:19:09] Speaker 05:
Right, but you just said page 468.

[00:19:12] Speaker 05:
Did I mishear you?

[00:19:13] Speaker 05:
468, Your Honor.

[00:19:15] Speaker 05:
Do you have a 468?

[00:19:16] Speaker 05:
No.

[00:19:17] Speaker 05:
I don't think any of us... Unless you mean... I know there's a separate sealed file, which I assume you don't want to talk about.

[00:19:25] Speaker 02:
We filed three appendices.

[00:19:28] Speaker 03:
Yes, yes, yes.

[00:19:28] Speaker 03:
It's the... Is it the sealed one?

[00:19:33] Speaker 03:
Yes, it's the sealed supplement.

[00:19:35] Speaker 02:
Fine.

[00:19:35] Speaker 02:
I apologize.

[00:19:36] Speaker 05:
I thought we unsealed it, but I apologize.

[00:19:39] Speaker 05:
Okay, because I didn't know that you would want to talk about that information.

[00:19:42] Speaker 03:
The only thing that would say... Just to be clear, I think it's perfectly appropriate for you to refer us to those pages.

[00:19:48] Speaker 03:
The ceiling refers to what was sealed in the district court, not necessarily what's sealed by us.

[00:19:54] Speaker 03:
So if you want to point us to the pages, you can do that.

[00:20:00] Speaker 02:
As I was saying, Your Honor, in page 648 through 468 through 472, the listing of the days when Ms.

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Doak missed work or when she was tardy for work.

[00:20:16] Speaker 02:
Although, so that is, those two pieces of paper are very illustrative of the frequency of her migraine.

[00:20:24] Speaker 02:
More importantly, as Dr. Barbaro pointed out, the onset of migraine is unpredictable.

[00:20:30] Speaker 02:
And whenever the onset of migraine would come on, Ms.

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Doak then would take a board of medication and that would incapacitate her during the times when she needed to recover.

[00:20:40] Speaker 02:
So because of that, Chief Judge Garland, even with the accommodation, she would not have been able to perform the essential function of her job.

[00:20:50] Speaker 05:
I just want to back up to a jurisdictional issue in the case.

[00:20:54] Speaker 05:
How do you reconcile Spinelli and Poch?

[00:20:58] Speaker 02:
Well, Your Honor, in light of the recent Supreme Court decision that just came down, I believe, a couple of weeks ago, on the FTCA issue where, in which the Supreme Court... The Kwaifun Wong case.

[00:21:08] Speaker 02:
That's correct, Your Honor.

[00:21:09] Speaker 03:
The government is willing to acknowledge error here and does not think anymore that this is jurisdictional, correct?

[00:21:15] Speaker 05:
That's correct, Your Honor.

[00:21:17] Speaker 05:
Thank you.

[00:21:17] Speaker 05:
This would be the administrative time limit.

[00:21:19] Speaker 05:
That's correct, Your Honor.

[00:21:21] Speaker 05:
And you would read Spinelli as only requiring that there be some decision or submission to the agency, but that, do you read Spinelli as no, it's actually not meaning jurisdiction as it was one of those old uses of jurisdiction versus the rigorous ones now, or do you read it as simply requiring some kind of submission to the agency?

[00:21:41] Speaker 02:
Well, in Spinelli, the employee or the complainant in that case failed to completely

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initiate any administrative proceeding.

[00:21:52] Speaker 02:
And when it got to federal court... There was no administrative decision at all.

[00:21:56] Speaker 02:
Exactly.

[00:21:57] Speaker 05:
Obviously... Does the government believe that is... I know we've got Spinelli, I'm just asking the government's position.

[00:22:03] Speaker 05:
Is the government's position, is Spinelli's correct, that that is jurisdictional?

[00:22:06] Speaker 02:
Yes, Your Honor.

[00:22:07] Speaker 02:
For purposes of a failure completely to raise an administrative claim and then raise that issue in federal court for the first time, if the court were to allow that, then it would defeat the purposes of the administrative scheme that... Well, it's really... The real question here is the Supreme Court's opinion, which causes you to admit error, says that Congress has to say its jurisdiction, right?

[00:22:32] Speaker 03:
In the Spinelli case, we're at least talking about a statute.

[00:22:35] Speaker 03:
In the case we had before here, we're not talking about anything other than an EEOC rule, right?

[00:22:41] Speaker 02:
That's correct, Your Honor.

[00:22:43] Speaker 03:
So it's absolutely clear that an EEOC rule by itself can't create a jurisdictional bar because the Supreme Court said it has to be by Congress.

[00:22:50] Speaker 02:
That's correct, Your Honor.

[00:22:54] Speaker 02:
Your Honor, just to address the question that Your Honor asked of counsel about the nature of the job.

[00:23:01] Speaker 03:
Before you do that, just one more jurisdictional question that's still sitting here, which is your argument about a failure to cooperate.

[00:23:08] Speaker 02:
That's correct, Your Honor.

[00:23:09] Speaker 03:
Well, maybe not a, I'm sorry, not jurisdictional, but it's a tolling question.

[00:23:12] Speaker 03:
So assuming it's not jurisdictional, we should admit it, and therefore it's a question of possible equitable tolling.

[00:23:21] Speaker 03:
Your argument is she can't equitably toll because she didn't cooperate with the agency, correct?

[00:23:25] Speaker 02:
That's correct, Your Honor.

[00:23:26] Speaker 03:
However, the agency did not dismiss the case for failure to cooperate.

[00:23:30] Speaker 03:
It dismissed it on the merits.

[00:23:31] Speaker 02:
That's correct, Your Honor.

[00:23:32] Speaker 03:
So isn't the implication of our decision, I'm trying to remember which one now.

[00:23:41] Speaker 03:
Bowdoin and the previous one, that where the agency actually decides on the merits, exhaustion is sufficient.

[00:23:50] Speaker 03:
You agree with that?

[00:23:51] Speaker 03:
Well, we talk about this case.

[00:23:52] Speaker 03:
In this case, because whether or not she cooperated, the agency dismissed the case on the merits.

[00:24:01] Speaker 02:
That's correct, Your Honor.

[00:24:01] Speaker 03:
And therefore the exhaustion is satisfied.

[00:24:04] Speaker 03:
Do you agree with that?

[00:24:05] Speaker 02:
Yes, Your Honor.

[00:24:07] Speaker 02:
Yes, in a sense that the

[00:24:13] Speaker 02:
decision by the trial court where the judge basically said, well, even assuming that she was calmly filing her claims, there was a different basis for dismissing.

[00:24:26] Speaker 03:
Now we're talking about what the district court did.

[00:24:28] Speaker 03:
You made an argument here and there that even if it wasn't jurisdictional, the failure to do this within the 45 days, even if it wasn't jurisdictional,

[00:24:42] Speaker 03:
She could not get equitable tolling.

[00:24:43] Speaker 03:
She did not satisfy exhaustion because she didn't cooperate.

[00:24:46] Speaker 02:
That's correct.

[00:24:47] Speaker 03:
We have cases that suggest that where the agency goes ahead and decides on the merits anyway, exhaustion is satisfied.

[00:24:56] Speaker 03:
Is this a case where exhaustion requirement is satisfied?

[00:25:00] Speaker 02:
Your Honor, the cases that the court referred to perhaps deal with Title VII cases.

[00:25:07] Speaker 03:
So we would ask to... Well, the regulation is the same regulation.

[00:25:11] Speaker 02:
That's very true, Your Honor.

[00:25:13] Speaker 03:
One word is race, one word is disability.

[00:25:15] Speaker 03:
They're both in the same exact regulation.

[00:25:17] Speaker 03:
That's correct.

[00:25:18] Speaker 03:
There wouldn't be any race.

[00:25:19] Speaker 02:
That's correct, Your Honor.

[00:25:22] Speaker 02:
And so our position is that the fact that she did not cooperate with the agency, it deprived the agency of the opportunity to resolve whatever claims that she may have.

[00:25:31] Speaker 03:
But the agency did resolve them, and it resolved it against her on the merits.

[00:25:36] Speaker 02:
Based on whatever it had in front of the agency without her input.

[00:25:41] Speaker 02:
And that's correct.

[00:25:43] Speaker 03:
So when you say that's correct, then do you agree that she is sufficiently exhausted so that we may go on to discuss the question which you would like to discuss about whether or not

[00:25:52] Speaker 03:
she is able to perform her duties.

[00:25:55] Speaker 05:
Yes, Your Honor.

[00:25:56] Speaker 05:
OK.

[00:25:56] Speaker 05:
And then can I ask you, what evidence?

[00:26:01] Speaker 05:
They say there's no documentary evidence.

[00:26:03] Speaker 05:
Can you just give me a quick summary of the evidence in the record demonstrating that the job required, physically in person being in the office, at least those core hours

[00:26:18] Speaker 05:
of each day.

[00:26:19] Speaker 05:
Is there an official job description somewhere or can you answer their argument that there really wasn't any evidence on that?

[00:26:27] Speaker 02:
There are three pieces of evidence I can point the court to.

[00:26:30] Speaker 02:
The first one is the performance plan on page 110 through 118.

[00:26:35] Speaker 02:
and specifically on page 118, where the performance plans basically said as a part of a job, it is critical that she had daily meetings with her team project managers and other team members in the project.

[00:26:52] Speaker 02:
The second piece of evidence is this.

[00:26:54] Speaker 02:
Back in May 2010, Ms.

[00:26:58] Speaker 02:
Doak wrote a letter to her supervisor, and the record number is 460.

[00:27:04] Speaker 04:
You said page 118 is where it said she has to be able to meet in the office every day?

[00:27:22] Speaker 05:
Now does that have, when it says daily meetings, do those, it's a modern era now, do those have to be in-person meetings or could she have phoned in from home, sort of a telecommuting point?

[00:27:35] Speaker 02:
Because of the nature of her job, her physical presence was required because of the team meeting, but the team meeting is not just a bunch of people sitting around

[00:27:44] Speaker 02:
table talking, but there is evidence in the record to show that whenever this meeting, spontaneous meeting, would occur, they, the attendees, are required to view the same documents.

[00:27:55] Speaker 05:
That's what I'm trying to find is, if you can help me out here, the evidence about that physical in-person office requirement as opposed to

[00:28:04] Speaker 05:
being available in some capacity to talk to people each day?

[00:28:08] Speaker 02:
That would be defending responses to the interrogatories on our page 4, 18 through 38, particularly responses number 3 and 5.

[00:28:20] Speaker 02:
It would describe the need for Ms.

[00:28:25] Speaker 02:
Doak to be in person in order to view the documents and also in order to participate in the meeting.

[00:28:35] Speaker 02:
And particularly, if I can point the court to page 430 on top of the page, where the agency describes how some of these meetings require the parties to view the same documents and the same information in order for the meetings to be effective.

[00:28:53] Speaker 02:
And therefore, her physical presence would be required.

[00:28:57] Speaker 02:
So, going back to my evidence, that's the first piece of evidence.

[00:29:01] Speaker 02:
The second piece of evidence is this.

[00:29:02] Speaker 02:
As a form of accommodation, her supervisor proposed to move her away from her work area.

[00:29:09] Speaker 02:
On May 21, 2010, page number 460, she wrote a memo back to her supervisor and said, I did not want to move.

[00:29:17] Speaker 02:
And I quote, it is taking me away from team and team interaction would be largely reduced.

[00:29:23] Speaker 02:
So that is Ms.

[00:29:25] Speaker 02:
Doak's own words.

[00:29:26] Speaker 02:
That memo alone suggests that she recognized the interactive nature of her work.

[00:29:31] Speaker 02:
Your Honor, I understand that my red light is on.

[00:29:33] Speaker 02:
May I have a few minutes just to complete my answer and to talk about the third piece of evidence?

[00:29:38] Speaker 02:
Yes.

[00:29:39] Speaker 02:
And in her deposition, page 505 through 508, she talked about how she has a matrix position where she would support staff members who work on the project and what have you.

[00:29:53] Speaker 02:
So given that, Your Honor, given the nature of her job, given the fact that her own doctor says she could not work even at home or in the office whenever there was an onset of the migraine, the telework or any accommodation to the hospital would be unreasonable.

[00:30:08] Speaker 03:
Our cases have held a requirement that the employer engage in an interactive process in determining whether an accommodation is possible.

[00:30:18] Speaker 03:
Opposing counsel said there was no interactive process here, that it was just a no.

[00:30:22] Speaker 03:
What is the government's response to that?

[00:30:24] Speaker 02:
We respectfully disagree because in the context of this case, the agency provided her with seven different

[00:30:34] Speaker 02:
accommodation and one agree upon.

[00:30:37] Speaker 02:
The agency provided her with fluorescent lights, anti-glare screens for her computer, permission to wear sunglasses in the office, noise-canceling headphones, provided her with a dark area in order for her to go when she had a migraine, proposed to move her to different areas to accommodate her migraine, and the agency, in fact, met with Ms.

[00:30:58] Speaker 02:
Doak and her union representative and agreed to a nine o'clock start time.

[00:31:03] Speaker 02:
So that is a later time than what her normal schedule would be.

[00:31:07] Speaker 02:
Her normal schedule would be at 8.15.

[00:31:09] Speaker 02:
But the parties met and through that interactive process agreed to a 9 o'clock start time.

[00:31:15] Speaker 05:
Am I right that the core hours that everyone had to be there started at 10.30 to 11.30 and then there were some in the afternoon?

[00:31:23] Speaker 02:
Yes, Your Honor, at 1.30 to 2.30.

[00:31:24] Speaker 02:
Right.

[00:31:25] Speaker 05:
So what evidence is there that a 10.30 start time then wouldn't have been workable for this position?

[00:31:31] Speaker 02:
Well, a couple of reasons, really.

[00:31:35] Speaker 02:
One, because of the meetings that these, her team members would have.

[00:31:39] Speaker 02:
And some of these meetings are spontaneous.

[00:31:41] Speaker 02:
That's interrogatory number three.

[00:31:43] Speaker 02:
Explain.

[00:31:43] Speaker 05:
I got the evidence that you cited, but I assume the point of the 1030 to 1130 and the.

[00:31:48] Speaker 05:
130 to 230 was a recognition that there's a lot of flexibility in time.

[00:31:53] Speaker 05:
And those were the hours when everyone was expected to be in the office.

[00:31:58] Speaker 05:
And so outside of those hours, there's a risk that any given person might not be there for a spontaneous meeting.

[00:32:04] Speaker 02:
Well, that's correct, Your Honor.

[00:32:06] Speaker 05:
If I went to 1030 start time work, she'd be there for any required spontaneity.

[00:32:12] Speaker 02:
Well, the problem with a later start time is this.

[00:32:16] Speaker 02:
Her supervisor explained this in a deposition, is given the hours that her other colleagues worked, having a later start time shortened the number of hours that she went to act with her colleagues, even though she may meet the 1030 start time,

[00:32:31] Speaker 02:
or what have you.

[00:32:33] Speaker 02:
So that's one issue.

[00:32:34] Speaker 02:
But the second issue is this, according to her doctor, this onset of micro-ing is so unexpected, so unpredictable.

[00:32:41] Speaker 02:
Even with a 1030 start time, there's no guarantee that Ms.

[00:32:46] Speaker 02:
Doak would show up at 1030.

[00:32:48] Speaker 02:
And the two lists of dates that I pointed out to the court illustrate that.

[00:32:53] Speaker 02:
how often she would miss work or be tardy for work.

[00:32:57] Speaker 02:
And as the district court corrected, pointed out, even with the accommodation, her attendance was all over the place.

[00:33:04] Speaker 03:
Other questions from the court?

[00:33:05] Speaker 03:
Thank you.

[00:33:06] Speaker 03:
Thank you.

[00:33:07] Speaker 03:
Does Ms.

[00:33:08] Speaker 03:
Tsang have any time left?

[00:33:14] Speaker 03:
I know you'd like five minutes.

[00:33:15] Speaker 03:
The problem is you've used it already.

[00:33:16] Speaker 03:
But nonetheless, we'll give you another minute.

[00:33:20] Speaker 06:
Your Honor, again, the bulk of what my colleague is citing is interrogatory responses.

[00:33:26] Speaker 06:
Again, these are testimonial.

[00:33:28] Speaker 06:
And her testimony contradicts this, saying that the core requirements of her position could be provided.

[00:33:33] Speaker 06:
And again, this is not a long-term accommodation.

[00:33:37] Speaker 06:
This is just a temporary accommodation, which they refuse to provide.

[00:33:41] Speaker 06:
The 9 AM start time that they request, this is not what she agreed to.

[00:33:47] Speaker 06:
there was no interactive process to even see that if this temporarily this could be put into place while the effects of our medications subsided.

[00:33:55] Speaker 06:
There was no interactive process here.

[00:33:59] Speaker 03:
We'll take the matter under submission.

[00:34:00] Speaker 03:
We'll take a brief break while council changes chairs.