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Case number 14-7118, Penelope Minter, appellate versus District of Columbia.

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Ms.

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Ilter for the appellate, Mr. Love for the appellate.

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Ms.

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Wilter.

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Good morning, Your Honors.

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May it please the Court, my name is Emery Ilter on behalf of Appellant Penelope Minter.

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Your Honors, the District Court's grant of summary judgment in this case for the District was an error for several reasons and Ms.

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Minter's case should be remanded for further proceedings.

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Critically, summary judgment for the District on Ms.

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Minter's retaliation claim in particular was erroneous because there are several genuine disputes of material fact on that claim under which a reasonable jury could find in Ms.

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Minter's favor.

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Now importantly, unlike some of Ms.

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Minter's other claims which were discussed in the ruling, this claim, the retaliation claim, is not subject to any statute of limitations questions.

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Therefore, if the court were to find that there is a genuine dispute of material fact on that claim, which we believe there is, the case must be remanded regardless of how the court rules on Ms.

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Minter's other claims involving limitations.

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Now, Your Honors, looking at the evidence presented in the light most favorable to Ms.

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Minter, the non-moving party on summary judgment, and drawing all reasonable inferences in her favor, it appears that there was a genuine dispute of material fact.

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The district court ruled that Ms.

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Minter failed to present adequate evidence that a reasonable jury could find under the Adeyemi v. District case that the district's, quote, asserted non-discriminatory reason was not the actual reason, end quote.

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In fact, Ms.

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Minter presented sufficient evidence which was not addressed.

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Not enough just to be the real reason.

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It has to be also give reason for a jury to believe that the real reason was retaliatory.

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Yes, Your Honor.

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That's correct.

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Though the district court didn't reach that precise question in the ruling.

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It did.

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Well, we're reviewing this de novo anyway.

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Yes, Your Honor.

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Looking first at the asserted non-discriminatory reason, if you take the district's arguments and explanation for why Ms.

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Minter was terminated, and without looking at the merits of those contentions and those assertions, they contradict.

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And that's the sort of evidence under Texas Department of Community Affairs versus Burdine, the Supreme Court's ruling, that's sufficient to show that the reason was a pretext.

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They have to contradict in a way that suggests it's a pretext.

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So in what way do they contradict that suggests that the real reason is retaliation?

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Well, Your Honor, the first part of the test is the contradiction, and so there's a showing that there... On summary judgment, the district is saying that Ms.

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Minter was terminated because she provided a certification from a Dr. Batieps, and on that basis, the district asserts that she was indefinitely unable to work.

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That's the June 20th certification, Joint Appendix 284.

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But if you look at the testimony of Ms.

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Beverly Fields, the chief of staff of the district office of the chief medical examiner, where Ms.

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Minter worked, who in her testimony says she was directly involved in the decision to terminate, she says, quote, we never got anything, end quote, to explain Ms.

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Minter's absence from work.

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That's at Joint Appendix 278.

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and asked further about the reason for termination, her reason given is, quote, we have to have work done.

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We're not getting any response from the employee for months, and the employee... Okay, so they were trying to get some medical records, right?

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And they didn't get them, right?

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And time passed?

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Well, Your Honor, they're... In other words, I'm trying to find the contradiction.

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So Your Honor, one contradiction is that they're saying they didn't get, Ms.

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Fields is saying she didn't get anything, and they didn't know why.

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She also says later that they didn't know why Ms.

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Minter was absent, and so the work wasn't getting done.

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In the deposition, they asked a question, was there any other reason she was terminated?

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Ms.

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Fields says no.

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That's a Joint Appendix 283.

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But the district in its brief is saying the reason she was terminated was because of the certification she gave that allowed them to decide in their view that Ms.

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Minter was totally disabled indefinitely.

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But Ms.

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Fields, who was directly involved in the decision, is saying we didn't get anything.

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Now, another contradiction is Ms.

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Fields testified that the decision to terminate Ms.

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Minter was made collectively, quote, by Ms.

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Fields herself, Ms.

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Sharon James, who was Ms.

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Minter's supervisor, the general counsel, and Ms.

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Charlene Williams, who was the ADA coordinator.

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That's a joint appendix 282-283.

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Yet if you review the deposition transcript of Ms.

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James and Ms.

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Williams, each of them expressly disavows any involvement in the decision.

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Ms.

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Williams was asked in her deposition, quote, were you involved in the decision to terminate Ms.

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Minter?

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And she responded, answer, no, not to make the decision.

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That's a joint appendix 228.

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Yeah, she didn't make the decision.

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You don't see a distinction?

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between her making the decision and the reason.

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The final decision and being involved in the process of determining whether or not this would be an appropriate path to follow?

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Well, Your Honor, review of the standard under Texas Department of Community Affairs shows that the assessment is whether the employer's proffered explanation is unworthy of credence.

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And these are the sort of inconsistencies in a story.

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Why is this inconsistent?

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On the one hand, as she concedes, she hasn't been to work in a very long time, correct?

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That's correct, Your Honor.

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And she had not provided medical information in a very long time, correct?

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That's not correct, Your Honor.

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Where is the evidence that?

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Your Honor, Ms.

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Mincher did testify that she had

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that the district had access to her medical records through the workers' comp process.

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She was in a new office, the Office of the Medical Examiner.

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As of May of 2006.

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Yes, Your Honor.

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All right.

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And that office, the ADA coordinator, wanted medical records and asked Mrs. Minter for them.

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Yes, Ms.

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Williams, in the December 1st, 2000... So, the Chief Judge's question is pointing, I think, to this gap from the request.

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And the district government as a whole, and the Department of Human Resources may have had the records, but also the medical examiner apparently didn't have them, or at least Mrs. Williams didn't have them and she wanted them.

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Well, Ms.

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Williams, in December 2006, asserted she questioned whether Ms.

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Minter even had a disability to begin with.

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This is before she had the accident, right?

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That was after she had the accident, Your Honor.

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So to give a quick timeline, Ms.

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Minter.

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No, but let's be clear.

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I mean, you can't take these out of context.

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She's in a new office.

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Mrs. Williams is the person she has to deal with.

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And Mrs. Williams, I agree, Mrs. Williams' testimony is, I don't know if you're, I don't even know if you're disabled.

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So she wants some medical records.

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Well, Your Honor, one point I will add, there's a factual dispute on that, because Ms.

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James testified in her deposition that she was aware of Ms.

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Minter's sarcoidosis, her disability.

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That's a joint appendix 202.

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I understand, but Mrs. James is not a medical doctor, and the disability cannot be just based on another employee's say-so.

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Isn't that what Mrs. Williams is trying to just document?

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Well, Your Honor, I agree.

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She wasn't a medical doctor.

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Ms.

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Williams isn't a medical doctor either, yet... No, that's why she wanted medical records.

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And she requested all the medical records ever so that she could personally assess if Ms.

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Minter had a disability.

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Ms.

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James also testified that she had told Ms.

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Williams, Ms.

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Fields, and Dr. Pierre Lewis, the head of the office, about Ms.

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Minter's sacrosanctosis back when she was interviewing.

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That's a joint appendix 207 through 211.

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I mean, it's unfortunate, but at least the way I'm reading the record is Mrs. Minter was in one part of the DC government.

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and over the years had established a working arrangement.

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Then she gets a promotion, and she's in another office.

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And that office wants to document whatever's going to happen to her.

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And this person with whom she had this relationship is no longer around.

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Well, that's the reason Ms.

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Williams was giving for denying the accommodation in December.

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Well, I mean, what I'm not clear about your argument is are you saying Mrs. Williams had no right to request these records?

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Well, the government certainly had a right, the district had a right to make reasonable requests, but to request this testimony from Ms.

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Minter that the first meeting, well, it wasn't the first meeting, but the meeting where she requested an accommodation on December 1st and was denied was a hostile meeting, that prior to that meeting, Ms.

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Williams had become angry with Ms.

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Minter because Ms.

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Minter had asked around in the government as to what options were for accommodations.

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This got back to Ms.

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Williams.

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She was upset to begin with.

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What does this have to do with my question?

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Well, Your Honor, it goes to the question of whether the request for all medical records was a reasonable request made in good faith.

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My question was, did not Mrs. Williams have the right, as the ADA coordinator, to ask for these records?

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Mrs. Winter didn't argue that she didn't have the right to ask for those records.

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No, the argument isn't the right to ask for any records whatsoever, but the request was for all your medical records, give them to me, Ms.

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Williams, not a physician, and I will decide if you have a disability, because in the December 1st meeting... Well, I mean, looking at Mrs. Williams and Mrs. Minter acknowledged that she had a letter earlier that for some reason she didn't give to either Mrs. James or Mrs. Winter.

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Mrs. Williams?

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Mrs. Williams, yes, Your Honor.

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And it's not clear why she didn't give that, and so

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What I thought was happening is in order to give Mrs. Minter what she was requesting, Mrs. Williams was asking for medical records that basically would say Mrs. Minter has some type of condition where she can work sometimes, but she needs extended periods of

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because of pain, et cetera, and she ought to be given this type of schedule.

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And Mrs. Williams, from all I gather, had no such medical information.

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Well, Ms.

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Williams, contrary to what she asserted in her deposition, that she didn't even know what Ms.

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Minter's disability was, Ms.

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James testified.

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I told Ms.

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Williams what the... Do you understand?

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We've been through this.

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Mrs. James is not a doctor.

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Mrs. Williams is not a doctor.

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But she's the one who has to sign off on whether Mrs. Minter can have this relaxed schedule.

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Yes, Your Honor.

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And she needs some documentation to approve that.

[00:11:38] Speaker 01:
Well, she may, Your Honor, and she received documentation through the workers' compensation disability process.

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Ms.

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Minter was examined by the district's claims examiner in April 2000.

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They said she's ready to come back to work.

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That's what he said.

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That's right.

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So now if they're going to go in the opposite direction, doesn't Mrs. Williams have a right to request some medical information?

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Well, Your Honor, our position... I support Mrs. Minter's request.

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She certainly may have the right to request that, but that right and request has to be viewed in the context of what else was going on.

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What else was going on?

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Well, there's testimony that there was some hostility there, that even at the first meeting on December 1st... I don't know what... I understand your point about hostility, but the employee is trying to get a special arrangement.

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And if she thinks that Mrs. Williams is too hostile, she can file a complaint with Mrs. Williams' supervisor.

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But that's not the issue here.

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The question is, she's seeking this disability.

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Right?

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Well, that's right, Your Honor, as far as she is seeking the disability.

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Now... So it's the implication that a less hostile person never would have asked for medical records?

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No, that's not the implication, Your Honor, but the request again was give me all of your medical records ever.

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It wasn't give me a certain... From birth until... I mean, I understand you can read it that way, but would a reasonable jury think that's what she was asking for?

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She wanted something.

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that would document the request that Mrs. Minter was making.

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Well, Your Honor, again, given the context and the other evidence here, the evidence surrounding the termination, the evidence surrounding the denial on June 1st, and drawing all reasonable inferences in Ms.

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Minter's favor at this point, and viewing the evidence in the light most favorable to her, there is evidence to show that the request very well may not have been made in good faith.

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And certainly, this court doesn't have to reach the merits of that point.

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Because this is an appeal, but- Let me make sure I understand your theory of retaliation.

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The way you seem to set it up, I want to make sure I heard you correctly.

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When the chief judge asks you where's the connection, you seem to say that in the city's motion for summary judgment, as distinguished from the district court's ruling,

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They asserted that the nondiscriminatory reason was that she couldn't work because the doctor said she was disabled forever.

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Correct.

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And in fact, you were saying, in all of their testimony, they had argued not that, but they had argued, we never got anything, we asked for something, never got it.

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And in truth, they had gotten something.

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Field certainly had something.

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And what we think is that disparity is the material fact in dispute.

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They come to summary judgment.

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They're only arguing not that they couldn't get anything.

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I want to make sure I heard you correctly.

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Yes, Your Honor.

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They're arguing not that they couldn't get anything, but rather the doctor said she couldn't work.

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And that's the disparity that suggests retaliation as far as you're concerned.

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Is that right?

[00:15:04] Speaker 01:
Yes, Your Honor.

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That's correct.

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In their motion, they are not talking about what we are now talking about.

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They were talking about in their motion.

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Correct.

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Which the district court bought, if I'm right in hearing you.

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They were not resting on all of these other matters.

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They switched.

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And you're saying it's obvious why they switched because they couldn't support

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what's now being argued, indeed, they did have knowledge.

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Is that your point?

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Yes, yes, Your Honor, that is the point.

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What's the evidence that they had knowledge?

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The evidence that they had knowledge is first lying on the field that that it emanated from the field didn't say she didn't get anything.

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What's the what's the what's the evidence that she did get some?

[00:15:48] Speaker 01:
Well, the evidence is they the district doesn't dispute that they received on June 20th the certification from Dr Batiste and that's what they pointed to 20 2007.

[00:15:58] Speaker 01:
Yes, your honor.

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That's the one that says she can't work.

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That's right.

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And that's the reason they gave in the summary judgment brief for termination.

[00:16:06] Speaker 05:
I'm sorry, I thought, so when you say they were given something, you mean that disability certificate.

[00:16:12] Speaker 01:
That's correct.

[00:16:13] Speaker 01:
And they were receiving, just to be clear, they were receiving information through the workers' comp process that was conducted by the district.

[00:16:19] Speaker 05:
Well, the question is, who's the they there?

[00:16:21] Speaker 05:
You don't have any evidence that anybody who actually fired her got that information, do you?

[00:16:25] Speaker 01:
No, Your Honor, but it was the district.

[00:16:28] Speaker 05:
Well, yes, it's a big district, but that doesn't mean that any of them got it, and you don't have any evidence that the decision makers actually got it.

[00:16:35] Speaker 01:
Well, we have evidence.

[00:16:37] Speaker 01:
Ms.

[00:16:38] Speaker 01:
Fields sent a letter on May 7th discussing the disability claim that's in Joint Appendix 72.

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Ms.

[00:16:45] Speaker 01:
James sent Ms.

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Minter a letter on April 5th.

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that you were unable to come to work due to illness associated with the injury.

[00:16:56] Speaker 04:
I have since that date received numerous messages indicating that you were unable to report field center at some point to 82 that she may have received the medical stuff, but she didn't look at it.

[00:17:07] Speaker 01:
And then she says, if it was received, I believe, it wasn't enough, was the statement she made, again, suggesting that that was not the reason for termination.

[00:17:17] Speaker 05:
I don't know.

[00:17:17] Speaker 05:
I guess I'm having trouble seeing this as inconsistent, even in the summary judgment motion, which is approximately the same thing that Ms.

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Fields testified.

[00:17:26] Speaker 05:
She stopped, this is what I'm reading from the summary judgment.

[00:17:30] Speaker 05:
Oh, no, I guess I'm not.

[00:17:30] Speaker 05:
What page is the actual, do we have the actual summary judgment?

[00:17:36] Speaker 05:
Um, motion, uh, paper that you're talking about?

[00:17:39] Speaker 05:
Yes, Your Honor, the... What page is that at?

[00:17:41] Speaker 01:
Uh, in the district summary judgment, uh... The JA page, that's what I'm looking for.

[00:17:46] Speaker 01:
It is, um... Well, it's not in the joint appendix.

[00:17:48] Speaker 01:
They're brief.

[00:17:49] Speaker 01:
It's not in the joint appendix?

[00:17:49] Speaker 01:
Their brief isn't.

[00:17:51] Speaker 01:
The district summary judgment brief isn't.

[00:17:53] Speaker 01:
So I can't give you a joint appendix site.

[00:17:54] Speaker 01:
So what?

[00:17:54] Speaker 01:
I can give you a page site.

[00:17:56] Speaker 01:
A page site of... Oh, their summary judgment brief?

[00:17:58] Speaker 05:
If I want to... You say that it's in... What they said in the summary judgment is inconsistent, right?

[00:18:05] Speaker 05:
And I'm trying to find where that is.

[00:18:07] Speaker 04:
You're saying it's inconsistent with what their testimony was.

[00:18:11] Speaker 04:
Correct.

[00:18:11] Speaker 04:
The argument.

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They were resting on this argument that they hadn't testimony.

[00:18:17] Speaker 04:
We never got anything.

[00:18:18] Speaker 04:
We never got any responses.

[00:18:19] Speaker 04:
That was all there.

[00:18:20] Speaker 04:
But you're saying in the summary judgment motion, that's not what they rested on.

[00:18:24] Speaker 05:
That's correct.

[00:18:25] Speaker 05:
So the only evidence I have of what it says in the summary judgment motion is in Judge Cooper's decision at JA 313.

[00:18:34] Speaker 05:
It says, according to, and it cites the plaintiff's opposition, which I take as what you're talking about, right?

[00:18:40] Speaker 05:
And it says, according to the district, a legitimate nondiscriminatory reason for firing.

[00:18:45] Speaker 05:
she effectively abandoned her job.

[00:18:48] Speaker 05:
That's the reason they get it.

[00:18:50] Speaker 05:
And that is the same as what Ms.

[00:18:52] Speaker 05:
Field says.

[00:18:53] Speaker 05:
She stopped coming to work after February 28th, and by April 28th, she'd used up all of her sick leave and leave authorized, notwithstanding many requests, she'd supplied no medical documentation.

[00:19:03] Speaker 05:
During that period, she didn't, until she produced the disability certificate, which declared her totally disabled.

[00:19:13] Speaker 05:
So that is exactly what Ms.

[00:19:15] Speaker 05:
Fields is saying, that there was a long period in which they got, she didn't come to work, in which they didn't get any information about why she wasn't coming to work.

[00:19:24] Speaker 01:
What's the inconsistency?

[00:19:26] Speaker 01:
Well, Your Honor, here they're asserting she abandoned her job.

[00:19:29] Speaker 01:
She did not abandon her job, and they knew she didn't abandon her job.

[00:19:32] Speaker 05:
By which they mean the next sentence, she stepped, she stopped coming to work, and she supplied no medical documentation to justify her extended absence.

[00:19:41] Speaker 05:
And that is exactly what Miss Field says.

[00:19:45] Speaker 05:
What is the inconsistency?

[00:19:47] Speaker 01:
Your Honor, because they did receive the documentation on June 20th.

[00:19:50] Speaker 01:
Not until June, right.

[00:19:52] Speaker 01:
That's right, when they terminated, the next month.

[00:19:54] Speaker 03:
That's after four months she's out, after her leave.

[00:19:57] Speaker 03:
That's right.

[00:20:00] Speaker 05:
They don't say that we terminated her.

[00:20:02] Speaker 05:
I mean, I think it seems obvious that they could have terminated her.

[00:20:06] Speaker 05:
But it all seems, even if they terminated her for a combination of the fact that she didn't give any information until June, and when she finally gave, and didn't show up, and when she finally did give it, it said that she couldn't work, even if there's a slight inconsistency, it's not enough of an inconsistency to suggest that the real reason is they were retaliating against her for her disability.

[00:20:34] Speaker 05:
That's the problem.

[00:20:35] Speaker 01:
Your Honor, at the same time that Ms.

[00:20:36] Speaker 01:
Mentor sent in that certification, she called and said she hoped to be back in September.

[00:20:42] Speaker 05:
She hoped to be back in December.

[00:20:43] Speaker 05:
She had not been present since February.

[00:20:46] Speaker 05:
They have no information from her until June.

[00:20:49] Speaker 05:
And what they do say is,

[00:20:53] Speaker 05:
in june as it's indefinite and then she says she hopes to be back in september ends when did you say september september two months later yeah so now that means from february to september she hasn't been working

[00:21:06] Speaker 01:
But to be clear, Your Honor, from February through when she provided that certification, she was out on a worker's disability issue.

[00:21:15] Speaker 01:
So they knew why she was out.

[00:21:16] Speaker 01:
They've sent her two letters, April and May, saying that they know why she's out.

[00:21:20] Speaker 01:
So to assert here that she abandoned her job is not accurate.

[00:21:24] Speaker 01:
There's at a minimum a dispute as to whether she abandoned her job.

[00:21:27] Speaker 01:
And evidence has been shown that they knew where she was and why she was out.

[00:21:31] Speaker 01:
Now, they may have requested.

[00:21:32] Speaker 03:
And they didn't get a response.

[00:21:34] Speaker 01:
Well, Ms.

[00:21:35] Speaker 01:
Minter did call them and they had that conversation on June 1st after she received.

[00:21:39] Speaker 03:
Until June.

[00:21:41] Speaker 03:
That's our point.

[00:21:44] Speaker 03:
They knew, I mean, presumably they had their home address.

[00:21:48] Speaker 01:
Presumably they sent her these two letters and she followed up with them at that time.

[00:21:54] Speaker 03:
So your case is that the district gave conflicting reasons for terminating and therefore

[00:22:05] Speaker 03:
They terminated her because she was disabled.

[00:22:09] Speaker 01:
Well, that's not the whole case, Your Honor.

[00:22:11] Speaker 03:
I'm taking it a step at a time?

[00:22:13] Speaker 01:
Yes, Your Honor.

[00:22:14] Speaker 03:
That's one argument, right?

[00:22:15] Speaker 01:
That's one argument.

[00:22:16] Speaker 01:
The following argument is, beyond that, Ms.

[00:22:19] Speaker 01:
Minter presented evidence that the termination was improper and had a retaliatory.

[00:22:25] Speaker 03:
Well, she's on stronger ground, isn't she, if she has some supporting evidence for that?

[00:22:29] Speaker 03:
And that's what I was focusing on.

[00:22:32] Speaker 01:
Supporting evidence for retaliation, for the motive?

[00:22:35] Speaker 03:
that she was fired because she was disabled.

[00:22:39] Speaker 01:
Well, Your Honor, typically, my understanding from reviewing case laws in a case like this, there's rarely a smoking gun.

[00:22:44] Speaker 03:
There's rarely someone who's in... I'm trying to give you the benefit of all inferences, Counsel.

[00:22:48] Speaker 03:
This is a friendly question.

[00:22:50] Speaker 03:
I'm trying to understand your arguments, all right?

[00:22:53] Speaker 03:
That's one theory, that these conflicting descriptions show pretext, and that in fact, they fired her because she was disabled.

[00:23:03] Speaker 01:
Yes.

[00:23:04] Speaker 03:
That's your bottom line.

[00:23:06] Speaker 01:
That's one argument, yes, Your Honor.

[00:23:08] Speaker 03:
And what's your second argument?

[00:23:09] Speaker 01:
Well, the second argument is, putting aside the conflict, looking at the substance of those reasons, there are some discrepancies.

[00:23:17] Speaker 03:
What is the conflict?

[00:23:18] Speaker 03:
What's the second reason?

[00:23:20] Speaker 01:
Well, the second reason is the testimony and the evidence pointed to by Ms.

[00:23:24] Speaker 03:
Minter that there was a different reason for termination, which was that she... Council, we've been through your argument that they gave different reasons, and that, you say, is evidence of pretext.

[00:23:35] Speaker 01:
Sufficient for a reasonable jury.

[00:23:38] Speaker 03:
And so what is your next argument?

[00:23:40] Speaker 01:
beyond the retaliation claim, we could turn to, there was no discussion in the district court's ruling on Ms.

[00:23:47] Speaker 01:
Minter's failure to accommodate claims relating to June 1st, 2007.

[00:23:52] Speaker 05:
Now we do need to talk a little bit about timeliness, just so I know exactly what you think is the time of the claim.

[00:24:00] Speaker 05:
So in your brief, you say, it seems like you're saying that we should be counting this from June 1st,

[00:24:09] Speaker 05:
from that June 1st meeting or telephone call with Williams or later.

[00:24:15] Speaker 05:
Is that right?

[00:24:16] Speaker 01:
Well, to be clear, the failure to accommodate claim is based on two denials.

[00:24:21] Speaker 01:
One denial was December 1st, 2006, and one denial was June 1st, 2007.

[00:24:26] Speaker 05:
So it's either December 1st or February 2007.

[00:24:31] Speaker 05:
Those are the dates of the denial of accommodations.

[00:24:35] Speaker 01:
June 2007, Your Honor.

[00:24:36] Speaker 01:
the phone call on June 1st, 2007.

[00:24:38] Speaker 05:
So June 2007, December 1st, 2000.

[00:24:42] Speaker 05:
I mean, when was the other one December 1st, 2006.

[00:24:46] Speaker 05:
When she filed the EOC.

[00:24:48] Speaker 01:
That's correct.

[00:24:48] Speaker 01:
After the meeting with Miss Williams and each of those is a is an actionable independent discriminatory act because there was a request and denial each of those days.

[00:24:57] Speaker 05:
Okay, so

[00:24:59] Speaker 05:
That means you have to show that she was a qualified person with a disability as of December 1st, 2006.

[00:25:06] Speaker 05:
Yes, sir.

[00:25:07] Speaker 05:
And June 1st, 2007, right?

[00:25:09] Speaker 05:
That's correct.

[00:25:09] Speaker 05:
OK.

[00:25:10] Speaker 05:
And in light of the opinion of her doctor that she was totally disabled, what is your evidence that she was qualified?

[00:25:17] Speaker 01:
Well, Your Honor, first, just to note.

[00:25:19] Speaker 03:
As of September.

[00:25:21] Speaker 05:
December 1st.

[00:25:22] Speaker 03:
No, his letter was that she was disabled as of September when she had the accident.

[00:25:28] Speaker 05:
Which was before December.

[00:25:29] Speaker 03:
Yes.

[00:25:30] Speaker 01:
Well, Your Honor, one key piece of evidence is that Ms.

[00:25:33] Speaker 01:
Minter performed her job duties after September.

[00:25:36] Speaker 01:
So she performed the job duties without an accommodation, both before her injury in September and afterwards.

[00:25:43] Speaker 01:
She was going to work.

[00:25:44] Speaker 01:
That isn't disputed by the district.

[00:25:46] Speaker 01:
Even district personnel have testified to that effect.

[00:25:51] Speaker 01:
She, if you look at Joint Appendix 121, 169 to 170, there's discussion of Ms.

[00:25:57] Speaker 01:
Minter.

[00:25:58] Speaker 01:
I'm sorry, what patient?

[00:26:00] Speaker 01:
I'm sorry.

[00:26:00] Speaker 01:
121 and also 169 to 170.

[00:26:02] Speaker 05:
Whose discussion is that?

[00:26:05] Speaker 01:
And that's Ms.

[00:26:06] Speaker 01:
Minter's discussion, her testimony that she was at work during that period after her injury, September 2006, through the end of February 2007.

[00:26:14] Speaker 01:
She had some absences in there.

[00:26:16] Speaker 01:
Yes, she did.

[00:26:16] Speaker 01:
She did also work a full-time.

[00:26:18] Speaker 03:
In other words, when I'm...

[00:26:20] Speaker 03:
Her claim is not that she can work full-time.

[00:26:25] Speaker 03:
She can work full-time sometime.

[00:26:29] Speaker 01:
Yes, she had worked full-time when she had to.

[00:26:31] Speaker 01:
Not when she had to, when she was able to.

[00:26:37] Speaker 03:
Because her whole claim is that she suffers from, I will not try to repeat the term, but she is in great excruciating pain.

[00:26:47] Speaker 03:
and therefore cannot come to work.

[00:26:50] Speaker 03:
And this is episodic.

[00:26:52] Speaker 03:
That's correct.

[00:26:53] Speaker 03:
And she needs a flexible schedule to accommodate that.

[00:26:57] Speaker 01:
Yes, there's the flexible schedule request, and there's also the request to work from home on occasion.

[00:27:03] Speaker 01:
So those are the two different accommodations that Ms.

[00:27:06] Speaker 01:
Minter requested.

[00:27:07] Speaker 01:
And as you noted, her sarcoidosis and the related arthritis and other things caused joint pain and muscle pain, fatigue.

[00:27:15] Speaker 01:
But going back to Chief Judge Garland's question, so we have the testimony.

[00:27:21] Speaker 05:
It's the work injury that's the problem, not the sarcoidosis.

[00:27:24] Speaker 05:
for which purpose your honor well for any purpose because if she wasn't turned down until december 1st

[00:27:31] Speaker 05:
by which point she had not only the sarcoidosis, but also the work injury, we have to evaluate her, the question of whether she was qualified as of that date, right?

[00:27:40] Speaker 01:
Yes, that's correct, Your Honor.

[00:27:41] Speaker 01:
And she testified that she was working as of that date with her injury.

[00:27:46] Speaker 01:
So that, at least for purposes of summary judgment and a reasonable jury being able to find in her favor, does show that she, on that date, was a qualified individual with a disability, or at least that they could find that way.

[00:27:59] Speaker 05:
even even in light of the doctor saying that she was totally disability disabled.

[00:28:05] Speaker 05:
Well, in light of her own doctor saying that she was totally the same.

[00:28:08] Speaker 01:
Well, your honor, we have the doctor's note and the doctor's note.

[00:28:11] Speaker 01:
The district asserts that there's only one way to read that statement.

[00:28:15] Speaker 03:
And the district court says he gave your the plaintiff an opportunity to offer another interpretation and there was none.

[00:28:24] Speaker 01:
Well, Your Honor, there was, Ms.

[00:28:27] Speaker 03:
Minter did- Is that finding clearly erroneous?

[00:28:30] Speaker 01:
In our view, it is, Your Honor.

[00:28:32] Speaker 03:
Well, why is it clearly erroneous?

[00:28:34] Speaker 01:
Because Ms.

[00:28:35] Speaker 01:
Minter testified that she was able to perform the job duties as of the time- So her own doctor, she was impugning the integrity of her own doctor?

[00:28:45] Speaker 01:
Your Honor, I wouldn't say we're impugning his integrity.

[00:28:47] Speaker 03:
Well, she submits her own doctor's statement to the city.

[00:28:52] Speaker 01:
That was when she received a letter saying, you must send us something within a week or you will be AWOL and you will be terminated.

[00:28:59] Speaker 03:
That's long after they asked for her records.

[00:29:02] Speaker 03:
But anyway, she submitted this statement.

[00:29:05] Speaker 03:
So how can she attack it if it's her own doctor?

[00:29:11] Speaker 01:
Well, Your Honor, she did at the same time it was given, call them and say, I hope to be back in September.

[00:29:17] Speaker 01:
We also have our expert witness, Dr. Efthimo, the medical physician, noted that it is difficult to assess recovery time for these sorts of injuries.

[00:29:28] Speaker 01:
The combination that Ms.

[00:29:30] Speaker 01:
Minter has, she has her pre-existing condition and she has her injury from falling.

[00:29:34] Speaker 05:
Did the district have that statement?

[00:29:36] Speaker 01:
Yes, Your Honor, that is,

[00:29:38] Speaker 01:
That's a joint appendix.

[00:29:40] Speaker 01:
When did they get that information?

[00:29:42] Speaker 01:
Oh, I'm sorry.

[00:29:42] Speaker 01:
They didn't know the district didn't have that.

[00:29:44] Speaker 01:
The district court had it.

[00:29:46] Speaker 05:
Yes, but is that doesn't the district have to know that the person is a qualified person with a disability?

[00:29:54] Speaker 05:
To have somebody testify after the fact that she was really qualified when the only information they have is from a doctor at the time.

[00:30:02] Speaker 05:
who says she's totally disabled, is that sufficient?

[00:30:04] Speaker 05:
Is that even relevant?

[00:30:07] Speaker 01:
Well, Your Honor, there was an inconsistency because they knew she was qualified because she was doing the job for several months.

[00:30:12] Speaker 01:
And so this statement that you've cited, the statement from Dr. Batieps, comes much later, as Judge Rogers noted, in June.

[00:30:20] Speaker 01:
So at a minimum, they knew there was an inconsistency at a minimum because they knew she was at work.

[00:30:25] Speaker 03:
They knew that her doctor

[00:30:29] Speaker 03:
thought she was indefinitely disabled.

[00:30:35] Speaker 03:
Correct?

[00:30:36] Speaker 03:
They knew that on June... No, that's what Dr. Patip's letter told the district in June of 2007.

[00:30:42] Speaker 03:
That's correct, but that was after they... And that is the only medical information that your client, that the plaintiff provided in response to Mrs. Williams' request for medical records.

[00:30:59] Speaker 03:
I'm just trying to get the facts here from the record.

[00:31:02] Speaker 01:
Well, Your Honor, taking that in from the lens of the failure to accommodate claims we have, ultimately... Here's my point.

[00:31:12] Speaker 03:
I've got terrible pains.

[00:31:14] Speaker 03:
I need to be out from work a lot.

[00:31:16] Speaker 03:
And I have a job with the city.

[00:31:19] Speaker 03:
And they want my medical records.

[00:31:22] Speaker 03:
And so when I give them some records, my own doctor says I'm indefinitely disabled.

[00:31:29] Speaker 03:
What's the city supposed to do then?

[00:31:31] Speaker 01:
Well, but that's that's about the retaliation claim, Your Honor.

[00:31:33] Speaker 01:
The failure to accommodate.

[00:31:34] Speaker 03:
I'm trying to ask you a very direct question here.

[00:31:37] Speaker 03:
What is what is your understanding of the law as to what the district does then?

[00:31:44] Speaker 01:
With respect to the retaliation.

[00:31:46] Speaker 03:
With respect to Mrs. Minter, she's been out from work all this time.

[00:31:50] Speaker 03:
They haven't gotten medical records they requested.

[00:31:55] Speaker 03:
And she sends them a medical record from her doctor.

[00:31:59] Speaker 03:
saying she's indefinitely disabled.

[00:32:03] Speaker 01:
Well, if we look at the interactive process, which is raised in the briefing, at the same time they received that documentation, they heard from Ms.

[00:32:10] Speaker 01:
Minter saying, I'm planning to be back in September.

[00:32:13] Speaker 01:
I hope to be back in September.

[00:32:15] Speaker 03:
You like to move the chronology around a lot, but here you are a district official, and you get a letter about one of your employees from your employee's own doctor.

[00:32:28] Speaker 03:
and your employee hasn't shown up for work.

[00:32:33] Speaker 03:
And her doctor says she's indefinitely disabled.

[00:32:38] Speaker 03:
What are you going to do with her manager, her supervisor?

[00:32:42] Speaker 01:
I won't stand in the shoes of her manager, Your Honor, but I'm asking you to for this hypothetical.

[00:32:47] Speaker 03:
You seem to think that the district can just ignore this.

[00:32:50] Speaker 01:
No, Your Honor, they could have followed up and said, why are you telling us that you're going to be back in September, and you give us this short note that says, totally disabled indefinitely.

[00:32:57] Speaker 01:
What does that mean?

[00:32:58] Speaker 01:
Does indefinite mean permanent?

[00:33:00] Speaker 01:
Does it mean two months?

[00:33:01] Speaker 01:
Does it mean?

[00:33:02] Speaker 03:
They've asked your client to respond over a period of months.

[00:33:06] Speaker 03:
She hasn't responded.

[00:33:07] Speaker 03:
And when she finally does, she's been out a long time.

[00:33:13] Speaker 03:
And now her doctor says she's permanently disabled.

[00:33:17] Speaker 01:
To be clear, they were receiving information through the workers' compensation process.

[00:33:21] Speaker 01:
She went to see Dr. Levitt.

[00:33:23] Speaker 03:
This, her doctor, unlike the city's doctor, says she's totally disabled.

[00:33:31] Speaker 03:
All right, and he's focusing on this workers' compensation accident in September.

[00:33:39] Speaker 03:
That's the state of affairs facing the city.

[00:33:42] Speaker 04:
Are you saying they can't retroactively use that doctor's certificate to justify their failure to accommodate claims because she was working?

[00:33:53] Speaker 01:
That's correct, Your Honor.

[00:33:53] Speaker 01:
That's why I was trying to clarify the distinction between the failure to accommodate claims and the retaliation claims.

[00:33:59] Speaker 04:
I'm saying that the fact that the doctor's certificate came later has nothing to do with

[00:34:03] Speaker 04:
their failure to accommodate someone who, like your argument, they had reason to know had issues, and they couldn't have assumed she was totally disdainfully producing because she had been working.

[00:34:13] Speaker 01:
That's correct, Your Honor, and the testimony shows that on those two dates we've been discussing, December 1st and June 1st, the denial was made.

[00:34:21] Speaker 01:
Ms.

[00:34:21] Speaker 01:
Williams both times denied the request for a reduced time schedule.

[00:34:26] Speaker 03:
No, that's not quite accurate, is it, Counsel?

[00:34:35] Speaker 01:
Why?

[00:34:38] Speaker 03:
Mrs. Williams put in writing what her position was.

[00:34:42] Speaker 01:
Are you referring to her December 5th email?

[00:34:44] Speaker 01:
The December 5th email where she discusses?

[00:34:46] Speaker 03:
And before, what was the date of the first meeting?

[00:34:48] Speaker 01:
December 1st, 2006.

[00:34:50] Speaker 01:
Then there was a subsequent, there's an email from December 5th.

[00:34:54] Speaker 03:
I know, I thought you said they had met before December 1st.

[00:34:57] Speaker 01:
Well, they have, but we're not tying our failure to accommodate claim to prior meetings because- Why did she meet with Mrs. Williams before?

[00:35:05] Speaker 03:
I'm not certain that she met before, but there was some... Well, you said it, counsel, and I'm just trying to find out when she met.

[00:35:11] Speaker 01:
She met with Ms.

[00:35:11] Speaker 01:
James, Your Honor, before.

[00:35:13] Speaker 03:
No, Mrs. Williams, the ADA coordinator.

[00:35:15] Speaker 01:
I don't believe... If I said she met with Ms.

[00:35:18] Speaker 01:
Williams before that, I may have misspoken, so I apologize for that.

[00:35:22] Speaker 03:
All right, so the first time she met with Mrs. Williams was December 1st?

[00:35:28] Speaker 01:
Yes, I believe so.

[00:35:29] Speaker 01:
And well, at a minimum, that's that's what our failure to accommodate claim for that for that for December.

[00:35:37] Speaker 03:
And so the same day she files the intake questionnaire with the EEOC.

[00:35:44] Speaker 03:
And on December 5th, Mrs. Williams sends an email

[00:35:51] Speaker 01:
That's correct.

[00:35:52] Speaker 01:
And that's about a subsequent meeting that Ms.

[00:35:55] Speaker 01:
Minter was in her infant mortality review meeting for work and ran late to her meeting with Ms.

[00:36:01] Speaker 01:
Williams.

[00:36:02] Speaker 01:
And Ms.

[00:36:02] Speaker 01:
Williams accidentally sends Ms.

[00:36:04] Speaker 01:
Minter an email.

[00:36:07] Speaker 01:
And it's noting that Ms.

[00:36:08] Speaker 01:
Minter didn't show up to this.

[00:36:10] Speaker 03:
I don't think it's accidental, counsel.

[00:36:13] Speaker 03:
She sent her an email saying, we had this meeting.

[00:36:16] Speaker 03:
You didn't show up.

[00:36:18] Speaker 03:
Let's continue talking.

[00:36:22] Speaker 05:
Do you know what J.A.

[00:36:24] Speaker 05:
is?

[00:36:25] Speaker 05:
I will identify.

[00:36:39] Speaker 01:
Joint appendix.

[00:36:51] Speaker 03:
I didn't bring my record with me.

[00:36:53] Speaker 01:
Here it is.

[00:36:54] Speaker 01:
Joint appendix 235, Your Honor.

[00:36:56] Speaker 01:
And the email I was referring to, which appears to have been an error, is from Miss Williams to Miss Minter.

[00:37:02] Speaker 01:
It's the second email from the bottom.

[00:37:04] Speaker 01:
And it says, FYI, this is for your records in case Penelope approaches you to complain that she cannot get any help.

[00:37:11] Speaker 01:
She did not come to our meeting as requested.

[00:37:14] Speaker 01:
So that's the email, Your Honor, Judge Rogers, that I was referring to.

[00:37:18] Speaker 01:
You said JA205?

[00:37:19] Speaker 01:
235.

[00:37:19] Speaker 02:
235?

[00:37:21] Speaker 05:
Yes, Your Honor.

[00:37:23] Speaker 05:
The one at the very bottom, this is the December 4th one.

[00:37:26] Speaker 05:
Yes.

[00:37:27] Speaker 05:
That says, I cannot answer the question without having knowledge of your claims and your doctor's recommendations.

[00:37:37] Speaker 05:
That's why I'm encouraging you to meet with me.

[00:37:39] Speaker 05:
After I learn what your claims and accommodations are, I'll be better able to answer your question.

[00:37:45] Speaker 05:
So doesn't that suggest that there isn't a decision yet by December 4?

[00:37:51] Speaker 01:
Well, that's Miss Williams' characterization.

[00:37:53] Speaker 01:
But if we look at Miss Minter's testimony at Joint Appendix 150, she says specifically she's discussing the conversation with Miss Williams.

[00:38:02] Speaker 01:
What page is that?

[00:38:03] Speaker 01:
Joint Appendix 150, Your Honor.

[00:38:05] Speaker 01:
And this is in relation to the December meeting.

[00:38:10] Speaker 01:
and she says, regarding Ms.

[00:38:12] Speaker 01:
Williams, and she went on to tell me, that was the time when she went on to tell me that, that you know this wasn't a reasonable accommodation, and how do I know you really even have a disability?

[00:38:22] Speaker 01:
Bring me all your medical records and I'll go through them.

[00:38:25] Speaker 01:
So that statement, this isn't a reasonable accommodation, doesn't sound like the statement of someone who is awaiting further information.

[00:38:32] Speaker 01:
Or at a minimum, a reasonable jury could interpret it that way.

[00:38:36] Speaker 01:
And drawing the reasonable inferences for Ms.

[00:38:39] Speaker 01:
Minter and viewing this in the light of Ms.

[00:38:41] Speaker 01:
Minter, most favorable to Ms.

[00:38:42] Speaker 01:
Minter, who is not the moving party, this is another piece of evidence in support of the fact that there was, at least there's a reasonable jury could find that there was a denial that day on December 1st.

[00:38:56] Speaker 05:
And I see that... Based on the statement that she wants more records?

[00:39:00] Speaker 01:
Well, Your Honor, based on the statement, this wasn't a reasonable accommodation, and how do I know you really even have a disability?

[00:39:06] Speaker 01:
There isn't a statement, let's discuss a reasonable accommodation, or what an offer, as suggested by the interactive process, what could be other reasonable accommodations.

[00:39:17] Speaker 01:
She stated, according to Ms.

[00:39:19] Speaker 01:
Minter, this wasn't a reasonable accommodation.

[00:39:21] Speaker 05:
Where's the testimony that she was working

[00:39:27] Speaker 05:
She did take off several weeks between December and January, right?

[00:39:31] Speaker 05:
In December and January.

[00:39:32] Speaker 01:
That's correct, Your Honor, yes.

[00:39:33] Speaker 05:
So where's that thing?

[00:39:36] Speaker 05:
And then stop coming in sometime in February.

[00:39:40] Speaker 03:
I think it's around J8205.

[00:39:42] Speaker 03:
This is James' testimony.

[00:39:43] Speaker 01:
Well, there is also Joint Appendix 53.

[00:39:45] Speaker 01:
Ms.

[00:39:45] Speaker 01:
Minter is asked, during this time from June to July through September, were you working full-time?

[00:39:52] Speaker 01:
Yes.

[00:39:52] Speaker 05:
That's through September.

[00:39:53] Speaker 01:
Right, and then were you out, at least we know, or you said in December 2006 for two weeks, and Ms.

[00:39:59] Speaker 01:
Minter says, I think it was a little more than two weeks, but somewhere around that, a few weeks, yes.

[00:40:03] Speaker 01:
Yeah.

[00:40:04] Speaker 01:
So there hasn't been any testimony.

[00:40:06] Speaker 05:
There's a testimony that she was working and a qualified individual between September and December.

[00:40:12] Speaker 01:
Well, so here, Joint Appendix 53.

[00:40:14] Speaker 01:
All right, hold on.

[00:40:15] Speaker 01:
Let me just say it.

[00:40:16] Speaker 01:
I'm sorry.

[00:40:16] Speaker 01:
I'm a little slow.

[00:40:24] Speaker 03:
What page of the transcript?

[00:40:26] Speaker 01:
So this is page 245.

[00:40:28] Speaker 01:
This is the small transcript.

[00:40:30] Speaker 01:
And she's asked, Ms.

[00:40:32] Speaker 01:
Minter has asked, after you were out for the two or so weeks in December 2006, did you come back to the office?

[00:40:37] Speaker 01:
She answers yes.

[00:40:39] Speaker 01:
And she was asked, and at that time, were you working full-time?

[00:40:41] Speaker 01:
Wait, wait.

[00:40:42] Speaker 01:
I'm sorry.

[00:40:42] Speaker 02:
Where are you?

[00:40:44] Speaker 01:
At the page 245 on JA 53.

[00:40:46] Speaker 01:
That's the bottom square?

[00:40:48] Speaker 01:
Yes, the bottom square.

[00:40:48] Speaker 05:
You're on.

[00:40:50] Speaker 05:
Yeah, OK.

[00:40:52] Speaker 05:
That's again, that's about what happened in December, right?

[00:40:56] Speaker 05:
After December, I was asking between September and December.

[00:40:59] Speaker 01:
Well, I'm not sure that there's a specific citation for that period.

[00:41:03] Speaker 01:
But again, her she had already suffered the injury in September.

[00:41:07] Speaker 01:
So there hasn't been any evidence to show that she was out between September and December.

[00:41:11] Speaker 01:
So she wasn't working a full time schedule.

[00:41:14] Speaker 01:
Your honor, that wasn't an allegation that was made to my knowledge.

[00:41:20] Speaker 01:
I see that I'm out of time, so pending any further questions.

[00:41:24] Speaker 01:
Further questions?

[00:41:25] Speaker 05:
Questions.

[00:41:26] Speaker 05:
We'll hear from the district.

[00:41:44] Speaker 00:
Richard love for the district that Columbia I'd be happy to discuss the merits but

[00:41:57] Speaker 00:
the the the the the the the the the the the the the the the

[00:42:17] Speaker 00:
period.

[00:42:19] Speaker 00:
As this court concluded in Long v. Howard University, where it held, to the extent that the actions merely reaffirmed any university action denying Long's request, the district court properly explains such claims are barred.

[00:42:36] Speaker 00:
This court went on to reference the Supreme Court case, Delaware State College v. Ricks, where the court made clear requests

[00:42:53] Speaker 00:
Ms.

[00:42:53] Speaker 00:
Minter's own testimony is that this conversation in June was a repetition of what had been allegedly requested and denied in December.

[00:43:04] Speaker 00:
Her testimony is, Ms.

[00:43:08] Speaker 00:
Williams repeated to me, OCMA doesn't have any part-time positions, so you can't, because I went through the same scenario that I had conversations that I had with her back in the fall, and she repeated those.

[00:43:21] Speaker 05:
There's a lot more that you have to do to get to where you want to get besides just picking the December date, right?

[00:43:29] Speaker 00:
Yeah.

[00:43:30] Speaker 00:
Yeah.

[00:43:30] Speaker 00:
And so we think her claims are time barred.

[00:43:35] Speaker 05:
Well, it's not time barred just because she filed in December.

[00:43:38] Speaker 05:
We have the problem of whether the claims are told during the administrative remedies, et cetera, under the Rehabilitation Act.

[00:43:45] Speaker 00:
Right.

[00:43:45] Speaker 00:
Right.

[00:43:46] Speaker 00:
That's correct.

[00:43:47] Speaker 00:
We do have this court has not addressed whether or not exhaustion

[00:43:54] Speaker 00:
we would ask the district court point to the decision in Adams and other cases, Reed, a Third Circuit case, which found that exhaustion wasn't required.

[00:44:06] Speaker 00:
There is obviously a tension between two sections of the Rehab Act, but I think the court in Adams and the cases that it cites properly resolve those tensions by concluding that

[00:44:24] Speaker 00:
the word standards is really referring to standards of liability.

[00:44:29] Speaker 00:
That Congress was interested in ensuring that the liability standards were the same, and if it wanted to include the powers, remedies, and procedures, it would have specifically stated that.

[00:44:42] Speaker 00:
So I think all of her claims are time barred, including the retaliation claim.

[00:44:49] Speaker 00:
I mean, we advanced the position that that claim was forfeited, and the response is, at least as I perceive it in the reply brief, is, well, it doesn't really matter because the claims are timely under the June 2007 telephone conversation, but they're not because really repeating that conversation doesn't restart the statute of limitations.

[00:45:12] Speaker 00:
I don't understand.

[00:45:13] Speaker 04:
Why is the retaliation time board?

[00:45:17] Speaker 00:
opposition that it was forfeited.

[00:45:22] Speaker 00:
That's not time war.

[00:45:25] Speaker 00:
Well, they never made any argument in response to the district's timeliness.

[00:45:30] Speaker 05:
She wasn't fired until, she wasn't terminated until July of 2007.

[00:45:35] Speaker 05:
Isn't that what the retaliation depends on?

[00:45:38] Speaker 00:
That's correct.

[00:45:39] Speaker 05:
And she filed her real, clear, real EEOC charge in October that year.

[00:45:46] Speaker 00:
Yeah, well, but if the statute of limitations, I mean, exhaustion isn't required.

[00:45:52] Speaker 00:
So I don't know what the relevance of the October 19th, 2007 charge would be to the Rehab Act.

[00:46:01] Speaker 04:
I just don't understand what you're saying with retaliation.

[00:46:03] Speaker 04:
It's time.

[00:46:06] Speaker 00:
Well, I think the district argued that there was not a timely claim

[00:46:16] Speaker 04:
under any of the counts of the complaint.

[00:46:36] Speaker 04:
haven't cited anything.

[00:46:39] Speaker 04:
You may disagree with the suggestion as retaliation, but that's a different argument.

[00:46:44] Speaker 00:
Absolutely, and I agree and I'd be happy to address the merits of the retaliation claim, but it was my understanding.

[00:46:50] Speaker 05:
What is the special limitations is three years, right?

[00:46:53] Speaker 00:
That's correct.

[00:46:54] Speaker 00:
It would be timely had it been argued, but we believe it was not argued.

[00:46:58] Speaker 00:
Oh, I see you say it's forfeited because they didn't argue on it.

[00:47:01] Speaker 00:
I see.

[00:47:08] Speaker 00:
Um, as we said, we don't think that December 1st, uh, charge, uh, is a charge or, uh, as the district court correctly found, manifests an intent to file a charge of discrimination.

[00:47:22] Speaker 00:
So that wouldn't, uh, save, uh, Ms.

[00:47:25] Speaker 00:
Minter's claims from the, from the time bar.

[00:47:28] Speaker 05:
Is this the Halaweke theory?

[00:47:29] Speaker 00:
Is that right?

[00:47:30] Speaker 05:
Yes, that's correct.

[00:47:30] Speaker 05:
But the intake questionnaire is different than the one that they were looking at in Halaweke.

[00:47:35] Speaker 05:
The intake questionnaire is different than the one they were looking at in Halloween.

[00:47:39] Speaker 05:
And this one does say, and I must say the EEOC has done its best to make everything confusing for everybody, but it does say organization against which charge is being filed.

[00:47:51] Speaker 05:
That's what it says as the heading.

[00:47:53] Speaker 05:
And then it says, other employment organization you want to include in the filing of this charge.

[00:48:01] Speaker 05:
Both of those sound a lot more like this is the charge and different than what the Supreme Court had in front of it in Halaweke.

[00:48:14] Speaker 00:
The form may be, but again the EEOC did send a subsequent letter in April of that year with an enclosed charge of discrimination

[00:48:30] Speaker 00:
sent back, but not until October.

[00:48:33] Speaker 00:
Moreover, this does fit with what the Supreme Court in Halaweke said.

[00:48:37] Speaker 00:
One of the forms, and I understand your point that it's a different form, its purpose is to facilitate pre-charge filing counseling.

[00:48:48] Speaker 00:
And that's exactly what Ms.

[00:48:49] Speaker 00:
Minter requested here.

[00:48:51] Speaker 00:
She wrote on the end of the form that she wished to consult with an EEO specialist regarding the possible filing of charges.

[00:48:57] Speaker 05:
That's why I say it's confused.

[00:48:59] Speaker 05:
It's got a little bit for everybody.

[00:49:01] Speaker 00:
I do want to move on to the merits, and that is the point that Ms.

[00:49:08] Speaker 00:
Minter is not, and a reasonable jury could not find that she's a qualified individual.

[00:49:13] Speaker 00:
The six months, at minimum,

[00:49:19] Speaker 00:
the end of February through what she said her hope was to return in September and her hope was qualified, saying depending on present treatment.

[00:49:31] Speaker 00:
That six-month period is beyond a reasonable amount of time to maintain a non-performing employee.

[00:49:39] Speaker 05:
What about her, what about this argument, which I must say I didn't understand in the briefs, but argument that

[00:49:46] Speaker 05:
December when she was denied accommodation at that point she had been working.

[00:49:53] Speaker 00:
Well I think she needs to show even if she you know one she was taking as you said

[00:50:05] Speaker 00:
leave between December and January, she did come back.

[00:50:09] Speaker 05:
No, but if the date of the refusal of the accommodation is December, if that meeting is the date of refusal, and I'm not sure whether it is, there's obviously an argument that it isn't, but if that's the date, then what about her claim, although I guess there's no evidence that she was qualified at that point.

[00:50:32] Speaker 00:
No, I don't think there's, there's any, I mean, I think there's an issue as to qualifications, but I don't think you can turn a blind eye to the six months that she simply stopped appearing.

[00:50:43] Speaker 00:
And even the EELC's own guidance with Mitch Minter relies on heavily.

[00:50:49] Speaker 00:
says that six months is beyond a reasonable amount of time to wait for a non-performing employee.

[00:51:00] Speaker 03:
You don't have to answer this question if it's going to hurt your case.

[00:51:04] Speaker 05:
Yes, you do.

[00:51:07] Speaker 03:
This case looks like a failure of communication.

[00:51:11] Speaker 03:
This woman had been working for the city for decades.

[00:51:16] Speaker 03:
She'd been performing basically the same type of work.

[00:51:20] Speaker 03:
Then she gets a promotion in a different office.

[00:51:25] Speaker 03:
And the person who was most familiar with her working schedule arrangements was no longer a DC employee.

[00:51:33] Speaker 03:
And so this new person, Mrs. Williams, steps into the picture.

[00:51:38] Speaker 03:
And Mrs. Williams essentially wants to start from ground zero.

[00:51:42] Speaker 03:
I need your records.

[00:51:44] Speaker 03:
I need to understand what's going on.

[00:51:46] Speaker 03:
And as counsel says, taking the evidence most favorable to Mrs. Minter, she and Mrs. Williams was a hostile situation.

[00:52:00] Speaker 03:
The city, Mrs. James, was she her supervisor?

[00:52:08] Speaker 03:
Yes.

[00:52:08] Speaker 03:
She knew of Mrs. Minter's

[00:52:12] Speaker 03:
medical, at least some medical problems that caused her to be absent sometimes from work because of the pain.

[00:52:22] Speaker 03:
They knew where she lived because they were communicating with her.

[00:52:28] Speaker 03:
And so far as this record indicates, Mrs. Minter is not

[00:52:38] Speaker 03:
Well, I don't know.

[00:52:38] Speaker 03:
I mean, the DC doctor said she's able to return to work, and she never returned.

[00:52:46] Speaker 03:
Then her own doctor comes in with this letter that she's totally disabled.

[00:52:52] Speaker 03:
I just wonder whether or not this couldn't have been handled so much better.

[00:52:57] Speaker 03:
Now, she's totally disabled.

[00:52:58] Speaker 03:
That's one thing.

[00:53:04] Speaker 03:
Somehow the communications fell off at some point.

[00:53:08] Speaker 03:
Now either Mrs. Minter is in such agony and pain that she can't pick up the telephone and talk to Mrs. James and tell her what's going on, or write a letter to Mrs. James or Mrs. Williams.

[00:53:25] Speaker 03:
It's just sort of reading the record here, it's not a happy record.

[00:53:29] Speaker 00:
Let me try to put some of that in context, particularly in terms of the promotion.

[00:53:34] Speaker 00:
I think the record clearly shows that Ms.

[00:53:37] Speaker 00:
Minter had been in a 32-hour-a-week schedule.

[00:53:42] Speaker 00:
It was affecting her pay and benefits.

[00:53:45] Speaker 00:
She applied for a full-time position, and she was

[00:53:51] Speaker 00:
offered that full time position.

[00:53:54] Speaker 00:
That full time position was a different position.

[00:53:59] Speaker 00:
It was as the coordinator for the Child Fatality Review Commission.

[00:54:03] Speaker 00:
It required her to have day to day management of that function.

[00:54:09] Speaker 00:
It required her to attend meetings.

[00:54:11] Speaker 00:
And so, you know, she's not in the same position.

[00:54:15] Speaker 00:
She's in a different position.

[00:54:16] Speaker 00:
Yes, Ms.

[00:54:17] Speaker 00:
James was familiar with her from her prior detail, but Ms.

[00:54:23] Speaker 00:
James testified that once Ms.

[00:54:27] Speaker 00:
Minter went, stopped coming to work after the 26th of February, that she only got messages slated, you know, when she wasn't at work as to what Ms.

[00:54:42] Speaker 00:
situation was.

[00:54:44] Speaker 00:
So I wouldn't disagree with your honor that communications obviously could have been better on both sides without casting a blame one way or the other.

[00:54:54] Speaker 00:
But I think the bottom line is Ms.

[00:54:56] Speaker 00:
Minter stops working for at least six months.

[00:54:59] Speaker 03:
Is your six months including the two months I hope when I hope to return?

[00:55:04] Speaker 00:
Yes, because she says she won't be at best.

[00:55:07] Speaker 00:
Her hope is she'll be back in September.

[00:55:10] Speaker 00:
That's a six-month period.

[00:55:11] Speaker 00:
And if the court looks in a case from the 10th Circuit, 2014 case called Wang HWANG versus Kansas State University, that's at seven

[00:55:26] Speaker 00:
The court explains that the EEO guidance manual at section 21 indicates that an employer doesn't have to retain an employee unable to perform her essential job functions for six months, and quoting from the guidance manual, because six months is beyond unreasonable amount of time.

[00:55:49] Speaker 00:
Here we have an employee that unquestionably, no dispute a fact, couldn't do her job for six months.

[00:55:56] Speaker 00:
And even that, the document that we received, there's no basis to believe she'd be able to show up in September or in the foreseeable future.

[00:56:06] Speaker 00:
It said indefinitely.

[00:56:08] Speaker 00:
So no reasonable jury could find that Ms.

[00:56:10] Speaker 00:
Minter was denied a reasonable accommodation because she

[00:56:17] Speaker 00:
didn't show up for six months, and certainly not if the situation was that she wouldn't show up indefinitely, which I think the evidence suggests here.

[00:56:27] Speaker 00:
Moreover, she never provided medical documentation supporting her need for an accommodation, and per this court's decision in Fleming v. Howard University, which is cited by Ms.

[00:56:42] Speaker 00:
That's another reason that the accommodation claim fails.

[00:56:47] Speaker 00:
I see him running out of time.

[00:56:49] Speaker 00:
I'd briefly like to just correct a couple of things in the record in terms of the retaliation claim.

[00:56:55] Speaker 00:
Because I don't think there's any inconsistency in the positions taken in the district's summary judgment papers.

[00:57:03] Speaker 00:
We said given the reluctance of agency officials to terminate Ms.

[00:57:07] Speaker 00:
Minter, even after she stopped coming to work,

[00:57:14] Speaker 00:
as well as the fact that she was not terminated, as well as the fact that she was not, I'm repeating myself, terminated until she informed her employer that she was totally disabled for working for an indefinite period of time.

[00:57:27] Speaker 00:
And that termination thus has occurred more than seven months after the December alleged protective activity.

[00:57:34] Speaker 00:
So it was all of these things.

[00:57:40] Speaker 00:
timely as requested.

[00:57:43] Speaker 00:
And moreover, Ms.

[00:57:45] Speaker 00:
Fields did testify, she said, she was asked did something come from Ms.

[00:57:51] Speaker 00:
Minter's doctor.

[00:57:53] Speaker 00:
And she testifies, and this is in page 282 of the appendix, she says something from Ms.

[00:57:58] Speaker 00:
Minter's doctor may have come, though she didn't see it because they limit, you know, who can see personal medical information, and she believed

[00:58:11] Speaker 00:
you know, two members of the, you know, they said they made this collaboratively or they certainly discussed it collaboratively.

[00:58:18] Speaker 00:
Ms.

[00:58:18] Speaker 00:
Jones, Ms.

[00:58:19] Speaker 00:
James, her supervisor, did see the certificate that said, you know, she was indefinitely and totally disabled.

[00:58:27] Speaker 00:
And she also testified that DCHR, which was a part of this collective

[00:58:36] Speaker 00:
disability certificate was in it.

[00:58:38] Speaker 00:
So was all of these things that played a part in the decision.

[00:58:55] Speaker 00:
or even if you measure it from June, it just doesn't make sense in these circumstances that, you know, temporal proximity.

[00:59:05] Speaker 00:
I mean, context matters, as the Court has pointed out.

[00:59:09] Speaker 00:
They've waited for her for four months.

[00:59:12] Speaker 00:
And, you know, temporal proximity is meant to be some immediate action.

[00:59:18] Speaker 00:
Employers act while they're hot under the collar.

[00:59:21] Speaker 00:
Well, they'd already been waiting very patiently for four months, and a month and three quarters later is when the termination letter was sent, and that was after three weeks later they got the disability certificate.

[00:59:37] Speaker 00:
So I think under this court's Talavera v. Shah case is relevant where this court said positive evidence

[00:59:48] Speaker 00:
to defeat the presumption that the proffered explanations are genuine.

[00:59:53] Speaker 00:
I think that's applicable here and there's just no reasonable jury could find that the conflicts that they point to provide a basis for a jury to conclude that she was fired with retaliatory intent.

[01:00:19] Speaker 05:
All right, no further questions, thank you.

[01:00:22] Speaker 05:
We'll give you two more minutes even though you're out.

[01:00:28] Speaker 01:
Thank you, Your Honor.

[01:00:29] Speaker 01:
Just briefly, to turn to the failure to accommodate claim, we heard some discussion about the letter from the doctor, and the letter from the doctor showed she was indefinitely disabled.

[01:00:39] Speaker 01:
That letter came as we discussed, somewhat ad nauseam, July 24, 2007.

[01:00:44] Speaker 01:
One failure to accommodate claim was December 1, 2006.

[01:00:48] Speaker 01:
I don't understand.

[01:00:50] Speaker 05:
Well, I guess there's an argument.

[01:00:53] Speaker 05:
You have an argument about that, but then there's the argument about whether that continued to be interactive.

[01:00:57] Speaker 05:
But then you say in your applied review for page 12, it makes sense that Ms.

[01:01:02] Speaker 05:
Mittner would not have raised the need for a combination between December and June because she was on medical leave for most of that time, which obviously mooted her need for a modified schedule.

[01:01:14] Speaker 05:
So even if we were to say you were correct, that that was the denial, wasn't it mooted at that point because she was on medical leave anyway?

[01:01:23] Speaker 01:
Well, Your Honor, the cause of action had already accrued.

[01:01:27] Speaker 01:
She already had the right, because she had been denied.

[01:01:30] Speaker 01:
She's shown a prima facie case with respect to December 1st, because she requested accommodation.

[01:01:34] Speaker 01:
She was denied.

[01:01:35] Speaker 01:
So these subsequent facts don't really alter her rights as to what happened on that date.

[01:01:41] Speaker 05:
I like to want accommodations starting on the day at which the final, which the interactive process ended, right?

[01:01:47] Speaker 01:
Well, and there's a dispute of fact as to whether the interactive process continued with respect.

[01:01:52] Speaker 05:
Even if the interactive, this is maybe a slightly off topic question, but still if you'll humor me for a minute, if the interactive process ended on that December date that you're talking about, and she was denied an, even if she was denied an accommodation on that date, but immediately thereafter,

[01:02:12] Speaker 05:
She can't work because she's on medical leave, she's out, etc.

[01:02:16] Speaker 05:
What is the claim at that point?

[01:02:19] Speaker 01:
Well, hypothetically, because those aren't our facts, but hypothetically, there would still be the claim, because that happened on that day.

[01:02:25] Speaker 01:
Once the district has denied the accommodation, the illegal activity has occurred.

[01:02:31] Speaker 05:
What's the damages or remedy?

[01:02:34] Speaker 05:
Imagine, on December 1st, let's say there's complete genuine good faith on both sides.

[01:02:40] Speaker 05:
They're trying to discuss, not with your client, hypothetical plaintiff.

[01:02:46] Speaker 05:
whether the person can come in that day or, you know, can get an accommodation.

[01:02:52] Speaker 05:
And on that day, they finally decide she can't.

[01:02:56] Speaker 05:
And the next day she dies, for whatever reason, or even that day she dies.

[01:03:01] Speaker 05:
What is the nature of the claim?

[01:03:02] Speaker 05:
She has a right to an accommodation, even if she does have a right to an accommodation.

[01:03:07] Speaker 05:
What's the nature of the claim when it's been mooted by her death?

[01:03:11] Speaker 01:
Your Honor, I'm not sure I know enough about what would happen if a person were to die in that scenario to fully address... Well, she definitely just cannot work.

[01:03:19] Speaker 05:
Cannot work.

[01:03:20] Speaker 05:
Everybody agrees, including the plaintiff, she cannot work starting on the day on which the accommodation was denied.

[01:03:25] Speaker 01:
I believe she would still be entitled to damages because there was an illegal activity.

[01:03:30] Speaker 01:
Her civil rights were violated in that she requested an accommodation.

[01:03:33] Speaker 01:
She showed she was a qualified individual with a disability.

[01:03:36] Speaker 01:
And in this scenario, on the same day, they said, no, we're not going to give you that accommodation.

[01:03:42] Speaker 01:
And they didn't show that there would be an undue burden.

[01:03:45] Speaker 05:
And what would the damages be if they had granted the accommodation on that day?

[01:03:49] Speaker 05:
It couldn't work anyway because something happened.

[01:03:52] Speaker 01:
If they had granted it?

[01:03:53] Speaker 05:
And I don't think there was.

[01:03:55] Speaker 05:
What are the damages?

[01:03:56] Speaker 05:
What's the measure of damages here?

[01:03:58] Speaker 01:
I'm not sure right now, Your Honor.

[01:03:59] Speaker 01:
I'm not sure I can address that question.

[01:04:01] Speaker 05:
What's the measure of damages under either statute?

[01:04:05] Speaker 05:
Oh, you don't know.

[01:04:05] Speaker 05:
Okay, I'm not pressing you to start researching.

[01:04:08] Speaker 05:
No, I. Thank you.

[01:04:10] Speaker 05:
Are there further questions?

[01:04:12] Speaker 01:
Okay, thank you.

[01:04:13] Speaker 05:
Thank you.