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Case number 15-7039, Carlos Alexander, appellant versus Washington Metropolitan Area Transit Authority.

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Miss Rucker for the appellant, Mr. Stief for the appellate.

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Mr. Rucker.

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Good morning, Your Honors.

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May it please the court.

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My name is Donna Rucker for the record, and I represent the appellate Mr. Carlos Alexander, who has brought this case indicating that the trial court erred when it dismissed his case at the summary judgment stage.

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since Mr. Alexander properly alleged that he had received a contingent offer of employment and he advanced as a theory that WMATA refused to give him his job after they put together the fact that Mr. Carlos Alexander is the individual who was the alcoholic.

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In fact, WMATA was aware that Mr. Alexander had a record of an impairment, a disability, and a reasonable jury could have concluded that the reason that Mr. Alexander was not provided the opportunity to have re-employment with WMATA was due to the fact that there was a known record of his impairment.

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Alternatively and additionally, Mr. Alexander, we believe, has evidence in this record that will show that he was in fact regarded by Wemata as having a disability and an impairment.

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The perception is clear, and with this Court's de novo review of the evidence in this case, we believe that the record shows that Mr. Alexander was in fact subjected to discrimination due to his disability.

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Can I ask you a question actually about the timeliness issue?

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We need to decide whether it's the three-year statute or the one-year statute because he didn't exhaust at least a couple of his claims with respect to applications.

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He only exhausted one of his application claims with the EEOC, correct?

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That is correct.

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I believe that at the time that Mr. Alexander applied, he continued to try to seek employment during the entire process.

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But for the purposes of the statute of limitations as raised by WMATA, the request is that we consider the timeliness as to whether or not Mr. Alexander needed to file within one year versus filing within a three-year or having a three-year statute of limitations.

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And we have to resolve that question because a number of his

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claims, he only sought, he only exhausted one with the EEOC, one of his applications, his first one.

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Well, we believe, Your Honor, that at the time that Mr. Alexander filed, and I believe the court and the reasoning provided in the record below agreed with the plaintiff, the appellant in this case, that it's somewhat of a non-issue given the fact that if you're using the D.C.

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Human Rights Act as a one-year statute, you have a tolling aspect.

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He only told exhausted claims and he didn't, he only exhausted one of his

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That's not an issue that's raised in this case as a matter of the challenge.

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So did he present to the EEOC his application to be an automatic fare collections helper?

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I believe that he did, Your Honor.

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My understanding was he hadn't exhausted all those claims.

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That is not my understanding that the issue here with respect to the tolling is that Mr. Alexander, in fact, had not had missed the statute of limitations with respect to filing.

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My recollection is that there's not an issue with respect to the sub-positions that were offered, specifically and most importantly, not with respect to the conditional offer of employment that Mr. Alexander was offered.

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There's no question, I believe, in the record at this point that the conditional offer that was extended to Mr. Alexander

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was a position that would have, as I've stated, been one that could go forward because either you have a tolling for that particular offer or you have a three-year statute of limitations that would not make it an issue.

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And in this particular case, we believe that WMATA failed to allow Mr. Alexander to go forward on the contingency offer because it relied on and considered... The contingency offer was for which position?

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The court's indulgence, Your Honor.

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I believe the Contingency Office author, and I'll look to the offer letter that is in the record in this particular case.

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You can tell us, I don't want to waste your time now.

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If you want to find that and tell me on rebuttal, that would be fine.

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Thank you, Your Honor.

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So the contingent offer is located on page 269 of the Joint Appendix.

[00:05:34] Speaker 06:
And when, what day did he file with the EEOC?

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You know that or not?

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Again, I don't want to waste time filing a paper share.

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Certainly.

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The actual file date with the, shall I provide you, however, Your Honor, with the original question of what the actual offer letter was for?

[00:05:51] Speaker 01:
Oh, yeah, I'm sorry.

[00:05:52] Speaker 01:
I'm filing that.

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That's all right.

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It's on 269 of the Joint Appendix with your indulgence.

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I'll get there.

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Contingent offers us mechanic, helper, general communication.

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That is correct.

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I believe that's the position the court referenced when we were asking.

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And so with respect to that, I believe the next question from the court is actually when he filed the complaint with the Equal Employment Opportunity Commission.

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So page 260 of the joint appendix.

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Well, that's the EEOC's answer.

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Actually, action 261 is the actual determination, finding the discrimination based on his or her disability.

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You can tell me on rebuttal when he submitted his complaint to the EEOC.

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The date that he actually submitted?

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Yeah, you don't need to do that right now.

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Thank you.

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And I'm looking for the charge, which is on page 37 of the Joint Appendix, Your Honor.

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Well, your complaint says it was July 2010.

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The actual date of the actual charge is of record in this case, has Mr. Alexander signing his charge on the September 13th, 2012.

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Yes.

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And so in this particular case, Mr. Alexander's position is that once Romano was able to make the connection and put together the fact that he is the individual that had the record of an impairment, that he was not going to be offered employment based upon that record of the impairment.

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And in this particular case,

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WMATA knew that there was a record of an impairment for Mr. Alexander.

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During the time that he was employed with WMATA, he went through the employee assistance program where he was treated and received treatment on two separate occasions for alcohol abuse,

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Mr. Alexander also, during the time that he was employed with Ramada, failed to successfully complete the EAP program.

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And he also had, as a condition of re-employment, the completion of a substance abuse program.

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And he would have to wait at least a year from the point of his termination.

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Council, just to make sure I understand, are you relying on Section 3.1b rather than 3.1a?

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This is of the Rehabilitation Act, Your Honor?

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Yes, I'm sorry.

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The record of such impairment rather than in the actual impairment?

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That is correct.

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We are looking at the fact that there was a record of, and we also believe that the evidence exists with respect to the perception and alternatively.

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that existed with respect to Mr. Alexander.

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You're talking about C as well.

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That is correct.

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And I say that because the record is clear that when Mr. Alexander completed the one year period and had a one year period pass, completed the substance abuse program,

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appeared at WMATA with his certificate, he applied, he was examined, and he successfully passed many exams for positions with WMATA.

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During that process, Mr. Alexander met with resistance and was in fact told by WMATA officials that you're disqualified because we don't have a revolving door.

[00:09:24] Speaker 04:
Did you, was perception argued below?

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We did, Your Honor.

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We indicated that from this evidence that I'm referring to now, we put on the record the fact that individuals perceived him as having this disability or this impairment because, for example, the HR person who was actually processing the paperwork said, I remember you.

[00:09:44] Speaker 04:
I understand.

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I did not recall that being part of the argument below.

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That is what we put in the record.

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That's found in Joint Appendix Number 47, where we specifically noted in the record that Mr. Alexander, when he encountered the HR person, she actually said to him, wait, I remember you.

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I'm going to have to speak to the superintendent about you.

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Did you make an argument?

[00:10:06] Speaker 01:
Did you make the argument?

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That is the argument that I advance.

[00:10:09] Speaker 04:
No, no, no, wait.

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I just want to make sure you understand what we're asking.

[00:10:12] Speaker 04:
I understand what you're referring to, but when was it crafted into an argument presented to the district court saying we're also arguing perception?

[00:10:22] Speaker 04:
It's based on what I just cited, but where is that set?

[00:10:26] Speaker 01:
Well, the information that I am referring to at this juncture was directly in response to the judge's inquiry about why is it that I'm saying that Mr. Alexander successfully established that he had a disability claim.

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And I pointed out very specifically by saying, because there's evidence in this record,

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that Mr. Alexander was back, able, and ready to work.

[00:10:51] Speaker 04:
He was given a conditional... But was the perceived theory advanced in a brief or a motion or anything to the district court?

[00:10:58] Speaker 01:
What I'm referring to is actually what was in our brief and what was argued during the summary judgment argument.

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There was oral argument that was presented.

[00:11:05] Speaker 05:
Did you ever say we're relying on 3-1-C?

[00:11:10] Speaker 01:
I never said specifically.

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That's what we're trying to ask because we both had the same reaction in preparing the case.

[00:11:16] Speaker 04:
We did not see that.

[00:11:17] Speaker 01:
Well, the inquiry from the court, as you will see from the Dunlanova review that you give this record, was whether or not there was an impairment that existed.

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There was an incredible amount of time spent.

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with addressing whether or not Mr. Alexander had established the fact that he had a disability.

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My questions and my response, kind of when I reviewed the trial transcript, and it was very important for me to get that, it was clear to me that it somewhat, my position as I was arguing this case was by the presentation of the arguments and the evidence that exists in the record,

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that what Mr. Alexander experienced was directly related to the record of the evidence that existed concerning his impairment.

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And I presented specific examples of what Mr. Alexander encountered when he was trying to become re-employed, advancing the theory that it is the record of his impairment people were reacting to within WMATA,

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and the perception that that somehow or another impaired him from doing the job.

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For example, the judge, when I was making this argument at Joint Appendix 342, specifically acknowledged that there is a record of the fact that Mr. Alexander is alcohol dependent.

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I believe that was advanced in response to my advancing the fact that there was this record.

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The court further says, I am not disputing that.

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There is evidence in the record that shows your client is alcohol dependent.

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That was a point and a matter that I was advancing in support of my position that I was not prepared to say that Mr. Alexander did not have an impairment that was being utilized.

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And to support that example, I pointed very definitively to the fact that you had individuals who were encountering him

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referring to and using that record of his disability to keep him from being employed.

[00:13:11] Speaker 06:
You also argue they never rehired an individual who had, in the past, violated the substance abuse law, sir?

[00:13:16] Speaker 01:
That is correct.

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And at this particular point, Mr. Alexander had passed those things that were required for re-employment.

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He came with a certificate.

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It became very much a moving target from Mr. Alexander.

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It was, you have to wait one year.

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Then you have to wait two.

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Well, now it's three.

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And then now we're not going to hire you at all.

[00:13:34] Speaker 05:
I'm very confused about how the statute treat alcoholism.

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Even if it could be established as an impairment, it doesn't look like the defendant has to hire you anyway.

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It's really confusing.

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Well, you have the disability that Mr. Alexander had.

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I believe what WMATA did in this particular case is simply say, when individuals are terminated for abuse issues, there's a protocol for being rehired.

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In Mr. Alexander's case, it was going through a detailed substance abuse program.

[00:14:09] Speaker 05:
Now, I'm talking about the statute for a moment.

[00:14:11] Speaker 01:
I understand you.

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Now, explain how this statute works together.

[00:14:14] Speaker 05:
It's very confusing to me.

[00:14:16] Speaker 05:
Well, in terms of as it relates to this case... It looks like alcoholism is a special exception.

[00:14:21] Speaker 01:
Well, I don't believe it's a special exception, but I do believe that alcoholism, as the court pointed out, is not per se a disability.

[00:14:28] Speaker 01:
You still have to take it through the standard steps.

[00:14:30] Speaker 05:
No, even if it's a disability, it looks like there's an exception of not requiring rehiring.

[00:14:38] Speaker 01:
But that is not what we have in this case in terms of Womata standing on why Mr. Alexander is not rehired.

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In this particular case, in doing a rule 30 v.

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6 deposition conducted, I specifically inquired about what the court is pointing out.

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Is there a qualifications issue?

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That was never the case.

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Mr. Alexander was never told that you're not qualified to work this position.

[00:15:00] Speaker 01:
He was simply repeatedly reminded of the fact that he is that guy who's an alcoholic.

[00:15:05] Speaker 01:
That's the record of that impairment.

[00:15:06] Speaker 06:
When you say this position, wasn't there, I mean, does it depend on whether it was safety or non-safety?

[00:15:11] Speaker 06:
That's why I asked you about the

[00:15:13] Speaker 06:
Collections position that is correct that one was at least debatably debate was debated whether it was a non safety position But some of the other ones were safety positions would that matter to whether it's

[00:15:24] Speaker 06:
their obligation to be higher, whether it's safety or non-safety?

[00:15:29] Speaker 01:
During the course of discovery, there was a distinction made between whether or not someone with Mr. Alexander's disability, his impairment, when coming back could come back into a safety-sensitive position.

[00:15:40] Speaker 01:
What was established, however, is that Mr. Alexander had passed exams for several positions, many of which were not safety-sensitive positions.

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And the position that he has or he received the contingency offer on, it is my understanding

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that it was a non-safety-sensitive position.

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But there were many positions.

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The important critical point here, as the court seems to recognize, is that Mr. Alexander was qualified for many jobs.

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A bright individual, qualified and capable of doing excellent work, never a record of his performance or any incidents during the time that he was employed.

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He is an alcoholic.

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And he was terminated for that reason.

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And he was also not rehired because of the record of that impairment.

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And also the perceptions of WMATA employees

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that this individual was not going to be able to function and perform in his job.

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The record is just simply replete with the evidence that shows that repeatedly his condition was a consideration and a factor and not decided to be important.

[00:16:43] Speaker 04:
If you don't have, I mean, forgetting the perception, question for a minute.

[00:16:47] Speaker 04:
What is your best evidence on showing that the impairment substantially limits one or more major life activities?

[00:16:56] Speaker 01:
In addition to the information provided during the course of discovery with Mr. Alexander's interrogatories, there's also an expert report presented by Dr. Malone where she recaptures the fact that Mr. Alexander provided to her a detailed history that shows the alcohol dependency as something that had occurred for him at a very young age.

[00:17:15] Speaker 04:
Yeah, but I mean, it's not giving specific evidence with respect to how it's limiting major life activities.

[00:17:21] Speaker 01:
I was about to get to that, but in the same report, the doctor references, and Mr. Alexander himself talks about blackouts after consumption of alcohol, the inability to care for himself, a deterioration of his sleep.

[00:17:34] Speaker 04:
Well, I think the effects on the alcohol cases, as I understand it, showing that there are adverse effects when you drink too much is not what we're talking about.

[00:17:43] Speaker 01:
And I'm not offering it as an address.

[00:17:45] Speaker 04:
So the blackouts, so if you drink too much and you have blackouts, you can't say that affects a major life activity.

[00:17:52] Speaker 01:
Well, I would argue that blocking out, staying conscious is a major life activity, but I would also say that it's not just that that Mr. Alexander relies on.

[00:18:00] Speaker 01:
I would point out that there's a statement of the deterioration of the sleep, his inability to care for himself, and that this is something that has not been and was not during the course of this case disputed in terms of Mr. Alexander in fact having a disability.

[00:18:15] Speaker 01:
This is the EAP program process that he was allowed to go through.

[00:18:20] Speaker 06:
Do you have to show a substantial limitation for a regarded as claim?

[00:18:23] Speaker 01:
I believe that for regarded as, you have to show that there was a perception that there was an impairment.

[00:18:29] Speaker 01:
But you don't have to show a substantial limitation.

[00:18:32] Speaker 06:
That is correct.

[00:18:33] Speaker 01:
That is my understanding.

[00:18:34] Speaker 05:
Wait a minute, counsel.

[00:18:35] Speaker 05:
Here's where I'm a little confused about how the statute works.

[00:18:39] Speaker 05:
For B and C, which is you're relying on here, the record of such impairment or being regarded to have such an impairment, neither of those would be established simply because the defendant's individuals believed the plaintiff was an alcoholic.

[00:19:05] Speaker 05:
Neither one would be established by virtue of that.

[00:19:08] Speaker 01:
Neither would be established by simply saying that Mr. Alexander is an alcoholic.

[00:19:13] Speaker 01:
That's what I was referring to.

[00:19:14] Speaker 05:
Wait, no, no.

[00:19:14] Speaker 05:
Listen carefully to what I'm saying.

[00:19:16] Speaker 05:
If I refuse to hire him because he's an alcoholic, that doesn't necessarily violate B or C, does it?

[00:19:27] Speaker 01:
That's not something that's in this case.

[00:19:29] Speaker 05:
I'll answer the court.

[00:19:31] Speaker 05:
Yes.

[00:19:31] Speaker 05:
Well, that's your argument, isn't it?

[00:19:34] Speaker 01:
My argument is that Mr. Alexander had a record of an impairment.

[00:19:41] Speaker 05:
But the mere fact that he's an alcoholic doesn't establish the impairment, right?

[00:19:46] Speaker 01:
The mere fact is, no, because there's no per se standard of disability for an alcoholic.

[00:19:52] Speaker 05:
So a record of such impairment means not just a record of alcoholism, but a record of alcoholism that interferes with a major life activity.

[00:20:03] Speaker 05:
And in this case... Wait a minute, stop.

[00:20:05] Speaker 05:
I just want to make sure I understand it.

[00:20:06] Speaker 05:
That is correct.

[00:20:07] Speaker 05:
So B and C are not triggered simply because of a record of alcoholism.

[00:20:13] Speaker 05:
It's a record of alcoholism that impairs

[00:20:16] Speaker 05:
a major life activity.

[00:20:18] Speaker 05:
So therefore, anybody who refuses to rehire a plaintiff because he is perceived as an alcoholic doesn't violate the statute unless that perception includes an alcoholic who has a loss of a major life activity.

[00:20:40] Speaker 01:
So the way I can respond to that.

[00:20:42] Speaker 05:
And the answer is yes, isn't it?

[00:20:43] Speaker 01:
I don't want to give an emphatic yes, because I don't believe it is.

[00:20:46] Speaker 01:
My position is that when you're looking at, for example, as the court is saying here, regarded as,

[00:20:51] Speaker 01:
If in this case, as we say, has occurred, the employer mistakenly believes that a person that has a physical impairment that substantially limits one or more major life activities, that would be an impermissible consideration because you are in fact regarding Mr. Alexander as having an impairment.

[00:21:11] Speaker 05:
In other words, you'd have to perceive not that just he's an alcoholic, but that as an alcoholic,

[00:21:18] Speaker 05:
He substantially limits a major activity.

[00:21:21] Speaker 05:
That is correct.

[00:21:22] Speaker 05:
So I'm right.

[00:21:23] Speaker 05:
But not for the regarded as.

[00:21:24] Speaker 01:
Not for the regarded as.

[00:21:26] Speaker 01:
That is correct.

[00:21:26] Speaker 01:
That is not the standard for regarded as, but regarded as.

[00:21:29] Speaker 05:
Well, we're having regard to such an impairment.

[00:21:32] Speaker 05:
An impairment necessarily includes not just an alcoholism, but an alcoholism that substantially limits life activities.

[00:21:40] Speaker 01:
It is the mistaken belief that a person has an impairment, a physical impairment, that's substantial.

[00:21:45] Speaker 05:
That you have to have not just a perception as an alcoholic, but a perception as an alcoholic who has a loss of a major life activity.

[00:21:55] Speaker 05:
I would have to perceive both of those factors.

[00:21:58] Speaker 01:
Mistaken belief that he has a physical impairment that substantially limits one or more major life experience.

[00:22:04] Speaker 01:
That's right.

[00:22:04] Speaker 05:
But it's the mistaken belief that is the... I grant you, but if I have a mistaken belief only that he's an alcoholic, that's not enough.

[00:22:12] Speaker 01:
And that is not our case.

[00:22:13] Speaker 01:
In our case, we're saying...

[00:22:14] Speaker 01:
There's a mistaken belief that he cannot perform the duties of the job because you have his application, you have the passing of the exams.

[00:22:21] Speaker 05:
Well, that's a whole separate question of we can't perform the duties of the job.

[00:22:25] Speaker 05:
We're now focusing on only whether there is a loss of the major life activity, and that can't be

[00:22:33] Speaker 05:
Because when he drinks on the job, he can't perform the job.

[00:22:36] Speaker 05:
That would be circuitous.

[00:22:38] Speaker 05:
That doesn't make any sense, because the statute says you don't have to hire somebody who drinks on the job.

[00:22:43] Speaker 01:
But that's not my argument.

[00:22:44] Speaker 01:
What the court is advancing here is a position where we are saying that in this case, when Mr. Alexander appeared qualified and able to begin work, he was regarded as an individual mistakenly with an impairment.

[00:22:58] Speaker 05:
What is an impairment at that point?

[00:23:00] Speaker 01:
The impairment was that he couldn't- No, technically what is the impairment?

[00:23:04] Speaker 01:
So the way I have to answer that, Your Honor, is I'm alleging here that Wmata mistakenly perceived that he was impaired.

[00:23:11] Speaker 01:
My belief- What does impaired mean?

[00:23:12] Speaker 01:
And that's what we're saying the record shows.

[00:23:15] Speaker 01:
No, no, no.

[00:23:15] Speaker 05:
I want to hear your legal argument.

[00:23:18] Speaker 05:
I'm trying to offer that.

[00:23:19] Speaker 05:
No, you're not.

[00:23:19] Speaker 05:
You keep going back to the record and the evidence.

[00:23:22] Speaker 05:
What is the impairment at that point that is perceived?

[00:23:26] Speaker 05:
the ability to perform the duties of the job.

[00:23:30] Speaker 05:
That is not a minimum, that you have to have, to have an impairment, you have to have that substantially limits one or more major life activities.

[00:23:40] Speaker 05:
So I have to have, if I have a bad perception, violating the statute, the perception has to be number one, that X is an alcoholic, and number two, that that alcoholism impairs a major life activity.

[00:23:55] Speaker 01:
So you're asking me what did Womata believe his impairment was?

[00:23:58] Speaker 04:
I was trying to figure out your theory of these three different standards.

[00:24:01] Speaker 04:
Correct.

[00:24:02] Speaker 04:
At one point it sounded like you were saying, see, just merely regarding someone as an alcoholic is a win.

[00:24:09] Speaker 04:
That can't be right.

[00:24:10] Speaker 01:
That is not what I'm saying.

[00:24:11] Speaker 01:
I am saying this more.

[00:24:12] Speaker 04:
Judge Silderman is saying,

[00:24:14] Speaker 04:
So what it really means is you have to regard someone as being an alcoholic and you have to believe, mistakenly, that he's substantially limited and want to make more life activities.

[00:24:27] Speaker 04:
But that's actually inconsistent because you're arguing that he is impaired.

[00:24:32] Speaker 04:
You're saying that he is impaired.

[00:24:37] Speaker 04:
So there's no mistake in belief because you're saying he is impaired, right?

[00:24:42] Speaker 01:
I am saying that he is impaired with respect to a record, which is a different standard than regarded as.

[00:24:48] Speaker 01:
With respect to a record of the three-step inquiry is whether the employee had a history of a physical or mental impairment.

[00:24:57] Speaker 01:
Second.

[00:24:58] Speaker 05:
Counsel, let me interrupt you.

[00:25:00] Speaker 05:
My colleague points out that the statute has been amended.

[00:25:03] Speaker 01:
The ADAA, that is correct.

[00:25:05] Speaker 05:
It's been amended to squarely deal with exactly the question.

[00:25:08] Speaker 05:
Would you like to help?

[00:25:10] Speaker 01:
For regarded as, you don't have to show.

[00:25:11] Speaker 01:
That is correct.

[00:25:12] Speaker 01:
You don't have to have that.

[00:25:13] Speaker 01:
This is what I was trying to point out.

[00:25:17] Speaker 01:
And so what we believe is that- But you have to show it for the record.

[00:25:20] Speaker 01:
You have to show it for the history.

[00:25:21] Speaker 01:
That is correct.

[00:25:22] Speaker 01:
That is correct.

[00:25:23] Speaker 01:
And we believe that that has occurred with the Courts of the Noble Review.

[00:25:26] Speaker 01:
That will be discovered.

[00:25:27] Speaker 01:
We think that, Ramona, knowing about this, relying on this, and that at this point, this leaves a question for the jury as to whether or not the record of the impairment was, in fact, the reason why Mr. Alexander- Wasn't there another provision whereby

[00:25:45] Speaker 05:
Even if there is this, of course you may argue there hasn't been reached yet.

[00:25:52] Speaker 05:
There's still the defendant doesn't have to rehire if the defendant has

[00:26:01] Speaker 05:
Is an alcoholic who's impaired, can't do the job, or is relevant to the job?

[00:26:08] Speaker 01:
That is a proper inquiry, which is why during the course of discovery, it was important to develop whether or not there was an issue with qualifications from WMATA, and there is none.

[00:26:18] Speaker 01:
There was no issue or concern about the ability to do the job.

[00:26:21] Speaker 05:
Even if he was an alcoholic?

[00:26:22] Speaker 01:
And they were aware he was, because he had been through their treatment programs.

[00:26:26] Speaker 05:
I see.

[00:26:26] Speaker 01:
And so we feel that in taking this information in the light most favorable to Mr. Alexander, a reasonable jury could conclude that it was the record of his impairment or alternatively, additionally, the fact that he was regarded as having an impairment as to why he was not re-employed, and that would be a violation of the Rehabilitation Act.

[00:26:46] Speaker 01:
We believe that the issue of any statute of limitations is really a non-issue for the reasons already advanced.

[00:26:51] Speaker 01:
Therefore, I would respectfully ask the court to reverse and remand this case for trial by jury.

[00:26:57] Speaker 01:
Thank you for your time, and if there's any time remaining for me, I'll ask for rebuttal.

[00:27:00] Speaker 02:
Thank you.

[00:27:26] Speaker 03:
Please the court.

[00:27:27] Speaker 03:
My name is Jared.

[00:27:28] Speaker 03:
Steve.

[00:27:29] Speaker 03:
I first like to address.

[00:27:30] Speaker 03:
I believe it was Judge Silverman's last question there.

[00:27:33] Speaker 03:
I believe the statute that you're referring to is 42 USC Section 12114

[00:27:41] Speaker 03:
Subpart C, four and five.

[00:27:46] Speaker 03:
Subpart four in particular says that a covered entity, meaning the employer, may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees

[00:28:09] Speaker 03:
even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.

[00:28:18] Speaker 03:
Yeah, but, you know, did you ever get to that?

[00:28:22] Speaker 03:
I'm not sure the district court cited that in her opinion.

[00:28:28] Speaker 03:
Would you even get to that issue yet?

[00:28:31] Speaker 03:
I don't think you have to get that far.

[00:28:34] Speaker 03:
Are you referring to the statute of limitations?

[00:28:36] Speaker 05:
No, no, no.

[00:28:38] Speaker 05:
I'm asking whether that is a secondary question at this point, isn't there?

[00:28:43] Speaker 05:
The first question is whether the plaintiff qualifies under A, B, or C of Section 3.

[00:28:56] Speaker 05:
And as my colleague points out, C has been amended.

[00:29:00] Speaker 05:
So the first question

[00:29:06] Speaker 05:
Does he have a record, or has he been regarded as having an impairment?

[00:29:12] Speaker 05:
And then you get to the second question, whether or not alcoholism bar bars him from the job for the statutory reasons that you've just described.

[00:29:25] Speaker 05:
But the judge didn't get to that.

[00:29:29] Speaker 02:
Did she?

[00:29:31] Speaker 05:
Yes or no?

[00:29:31] Speaker 05:
Did she get to that?

[00:29:32] Speaker 05:
I didn't see that she got to that.

[00:29:33] Speaker 03:
I'm not sure she got to it in those words.

[00:29:36] Speaker 05:
You're not sure.

[00:29:37] Speaker 05:
Isn't it fair to say she did not get to that?

[00:29:40] Speaker 05:
In fact, there's no evidence on that at all, one way or another.

[00:29:43] Speaker 05:
I believe that's correct.

[00:29:45] Speaker 05:
All right.

[00:29:46] Speaker 05:
So that's why you're bringing this up.

[00:29:48] Speaker 05:
I was wrong to even raise the question, wasn't I?

[00:29:51] Speaker 05:
Your honor, I'm not sure you were wrong to raise... And it confuses the devil out of the statute, because it seems to go around in circles.

[00:30:00] Speaker 05:
But you haven't gotten to this point yet.

[00:30:03] Speaker 03:
Your honor, I think there is strong and cogent evidence that he was and is an alcoholic.

[00:30:13] Speaker 05:
That and Ten Cents will get you on the trolley car.

[00:30:18] Speaker 05:
It's an old expression, not an old judge.

[00:30:21] Speaker 06:
I don't think WMATA does trolley cars.

[00:30:24] Speaker 03:
No, it doesn't.

[00:30:25] Speaker 03:
Although trolley cars or street cars are in the news these days, the district's project.

[00:30:31] Speaker 03:
Your Honor, I think what the key thing is, the district court correctly granted summary judgment because they plainly failed to demonstrate a major life activity which was substantially limited by alcohol dependency.

[00:30:48] Speaker 03:
He was given a second chance at LaMotte.

[00:30:51] Speaker 03:
The first time, he was put into the program.

[00:30:55] Speaker 03:
He failed that again.

[00:30:57] Speaker 03:
And then he was terminated only at that point.

[00:31:02] Speaker 05:
Then, at the time of his deposition... Well, under C, we're only talking about perception, aren't we?

[00:31:07] Speaker 03:
Well, I'm not sure it's a perception case, Your Honor, where there is actual evidence of the alcohol use.

[00:31:17] Speaker 06:
It was past alcohol use.

[00:31:19] Speaker 03:
I'm sorry?

[00:31:20] Speaker 06:
Past alcohol use.

[00:31:21] Speaker 03:
Well, Your Honor, and we point this out in Joint Appendix 100-101 from his deposition there.

[00:31:28] Speaker 03:
He admitted in his February 2000... No, no, no.

[00:31:30] Speaker 06:
You didn't know that at the time you made any of these employment decisions.

[00:31:33] Speaker 06:
You can't rely on something he said.

[00:31:35] Speaker 06:
That might be after acquired evidence that will limit your damages, but you can't rely on after acquired evidence to justify an employment decision that was made without that information.

[00:31:45] Speaker 03:
I agree that there's no evidence that they knew he was still drinking at the time.

[00:31:53] Speaker 06:
No, they had no evidence at all that he was drinking.

[00:31:55] Speaker 03:
But I think he has the burden to rebut the showing that we've made in this case that he would have been eligible for it, that he had gone past them.

[00:32:07] Speaker 06:
This is pretty established in discrimination statutes that

[00:32:11] Speaker 06:
You look at the decision that was made at the time, what evidence the employer had.

[00:32:14] Speaker 06:
I didn't see anything here where the employer thought he was drinking.

[00:32:18] Speaker 06:
They just didn't like the fact that he drunk in the past and he violated rules in the past and said, we don't want people like you here.

[00:32:25] Speaker 06:
We don't want to open the floodgates.

[00:32:26] Speaker 06:
That was the decision that was made.

[00:32:28] Speaker 06:
The fact that during deposition and the litigation,

[00:32:32] Speaker 06:
He now is, it's confusing about his status that after acquired evidence goes to limiting remedies, it doesn't change the fact that whether or not discrimination occurred before you had that evidence.

[00:32:44] Speaker 03:
Your Honor, I don't concede that point because I think they have... I thought the Supreme Court had told us about that, after acquired evidence.

[00:32:51] Speaker 03:
I understand what you're saying about after-required evidence, but I think the plaintiff had the burden to demonstrate that he was alcohol-free.

[00:32:59] Speaker 06:
And he did demonstrate that he showed to the employers his certificate, and that they had no evidence.

[00:33:07] Speaker 06:
And I thought that he got that out during depositions.

[00:33:09] Speaker 06:
They had no evidence to think that he was drinking at the time they made these hiring decisions.

[00:33:13] Speaker 06:
So doesn't that do that?

[00:33:15] Speaker 04:
Your Honor, he doesn't have to show that he's not an alcoholic to satisfy B and C.

[00:33:20] Speaker 04:
Satisfy C?

[00:33:23] Speaker 04:
I'm confused.

[00:33:24] Speaker 04:
What are you responding to?

[00:33:25] Speaker 04:
What's your defense on C?

[00:33:27] Speaker 04:
Let's start with that.

[00:33:29] Speaker 04:
What do you think you have to address C?

[00:33:31] Speaker 04:
Being regarded as having such an impairment, the statute is clear now that you don't have to show substantial limits of major life activities.

[00:33:40] Speaker 03:
Your Honor, I don't think C kicks in when there is the evidence, the uncontradicted evidence, that he actually was the alcoholic.

[00:33:51] Speaker 03:
I think the regarded as goes to the situation where

[00:33:56] Speaker 03:
Someone may not have an alcohol problem whatsoever, but they're improperly regarded.

[00:34:03] Speaker 05:
That's not what it says.

[00:34:04] Speaker 05:
It says whether it's actual or not.

[00:34:07] Speaker 06:
Actual or perceived.

[00:34:08] Speaker 05:
Actual or perceived.

[00:34:10] Speaker 05:
It would have made a lot more sense if the actual wasn't in there, but it is in there.

[00:34:15] Speaker 05:
I mean, I'm mystified by the statute, but your problem is it does say actual or perceived.

[00:34:23] Speaker 03:
I can't argue with the words that are in the statute.

[00:34:27] Speaker 03:
That's prudent.

[00:34:30] Speaker 03:
But, Your Honor, I don't think this overcomes the 42 U.S.C.

[00:34:36] Speaker 03:
Section 12114, and you do have to take that into the equation in making your decision.

[00:34:43] Speaker 03:
What do you mean?

[00:34:43] Speaker 03:
The fact that employers are protected by the need to protect its operations, fellow employees.

[00:34:51] Speaker 03:
Well, that's the next question, which wasn't litigated.

[00:34:55] Speaker 06:
And maybe a disputed question of fact.

[00:34:57] Speaker 06:
I suspect it's a disputed question of fact.

[00:35:00] Speaker 04:
That's why I'm trying to figure out where you all are coming from on C. So you're kind of stuck with a statute which you admit is really problematic now that it's been changed.

[00:35:08] Speaker 04:
And you want to get to the next question, which we can't get to because it wasn't litigated.

[00:35:12] Speaker 04:
And then I was going to ask you what you think your best defense is on B, a record of such impairment.

[00:35:20] Speaker 03:
Well, he clearly has a record of impairment.

[00:35:24] Speaker 03:
I can't say that he doesn't have a record of impairment.

[00:35:29] Speaker 04:
No, I'm asking you how do you defend if their claim is that disability is a record of such impairment.

[00:35:37] Speaker 05:
Well, there you could argue, counsel, that impairment means the kind of thing I was asking you about C before it was amended.

[00:35:46] Speaker 04:
Major life activities.

[00:35:47] Speaker 04:
Yeah.

[00:35:47] Speaker 04:
And then you want to circle back and say that he hadn't really proven the effect on major life activities.

[00:35:52] Speaker 04:
Correct.

[00:35:53] Speaker 04:
So you're stuck with C. C is the problem.

[00:35:55] Speaker 04:
C is the thorn in your side.

[00:35:56] Speaker 04:
Oh, wait.

[00:35:56] Speaker 06:
Can I clarify something on B?

[00:36:01] Speaker 06:
I understood your argument to be that

[00:36:03] Speaker 06:
at the time he was applying, he didn't show what was going on here and what his expert was talking about was at the time that he was applying for these jobs, he didn't show that his alcoholism, which at least his claim is that

[00:36:16] Speaker 06:
was he wasn't actively drinking at the time, didn't affect a substantial life activity.

[00:36:22] Speaker 06:
But I didn't understand you to dispute that when he was back in the past actively drinking, and when he lost his job, that he wasn't at that time, he didn't at that time have a substantial impairment of a life activity, the sleeping, the concentrating, the blacking out.

[00:36:37] Speaker 06:
You agree with that?

[00:36:38] Speaker 06:
When he's actually drinking, he's got a substantial impairment of a life activity.

[00:36:43] Speaker 06:
Back when you all fired him.

[00:36:45] Speaker 03:
When he was terminated, he clearly... I still don't believe that it affected a major life activity at that particular point.

[00:36:56] Speaker 06:
Active alcoholism?

[00:36:58] Speaker 03:
Just by itself is not, and I think Judge Chuck can properly reach that consensus there.

[00:37:04] Speaker 06:
I thought I was confused by the timing, because I thought the expert was clear that at the time he was actively drinking, he was blacking out.

[00:37:11] Speaker 06:
which would certainly affect your ability to concentrate.

[00:37:13] Speaker 06:
It was disrupting his sleep, and so it was sort of hitting some of the things that are major life activities.

[00:37:18] Speaker 06:
And that the question was, for his showing, whether when he came to the time of applying, he's asserting his rights, not back then, but the time he applied, that that's the time period that's an issue.

[00:37:31] Speaker 06:
for substantial impairment of substantial life activity.

[00:37:34] Speaker 06:
Am I wrong?

[00:37:36] Speaker 03:
I thought it was that time period that you... Your Honor, I think it's both time periods.

[00:37:39] Speaker 03:
I'm not sure I followed each thread of it, but I think the plaintiffs have the burden of demonstrating

[00:37:46] Speaker 03:
both at the time he was terminated, although my understanding is the termination itself is no longer to show in this case, but at the time that he reapplied for that.

[00:37:57] Speaker 03:
And I think that's what Judge Chuck had focused on.

[00:37:59] Speaker 05:
No, but if he has a record, I think my colleague is pointing out, if in the past, not only did he have problems on the job, but he had problems sleeping, he had problems with other aspects of life, then he did at that point

[00:38:15] Speaker 05:
have an impairment of life activity beyond the job.

[00:38:19] Speaker 05:
I know it really gets confusing when the impairment of life activity is the job itself.

[00:38:23] Speaker 05:
That goes around in circles, and the statute doesn't make any sense at that point.

[00:38:28] Speaker 05:
But if in the past he has a record of blacking out at home, falling over chairs and so forth, then there's a record of an impairment, right?

[00:38:40] Speaker 06:
that affects a major life activity back then.

[00:38:42] Speaker 05:
Yes, a record of impairment.

[00:38:43] Speaker 05:
That's why I'm saying that it is a major life activity.

[00:38:46] Speaker 03:
It could get to that level, but the plaintiffs didn't, as Judge Shook properly pointed out, produce evidence along those lines.

[00:38:54] Speaker 06:
That's why I'm asking.

[00:38:55] Speaker 06:
And again, we're not saying they win.

[00:38:58] Speaker 06:
We're not saying they win here.

[00:38:59] Speaker 06:
I'm just saying there is evidence here about blacking out, couldn't recollect events, interrogation, occupational difficulties generally.

[00:39:11] Speaker 06:
I think when someone gets what sounds like a pretty progressed stage, that at least back then, it impaired a life activity.

[00:39:23] Speaker 03:
And that's the Catch-22 that we reference in our brief there.

[00:39:26] Speaker 03:
I don't know how they can make that argument to support their claim of a major life activity and yet meet the standard that they qualify for the job.

[00:39:36] Speaker 03:
But they haven't got to that point.

[00:39:37] Speaker 05:
You haven't got to that second question.

[00:39:40] Speaker 05:
You're jumping ahead.

[00:39:42] Speaker 05:
Because your attack was whether or not there was a diminution of a major life activity.

[00:39:49] Speaker 05:
Not whether... If there was a diminution, he couldn't perform the job.

[00:39:53] Speaker 05:
He didn't get to the job.

[00:39:55] Speaker 03:
Well, we certainly argued that.

[00:40:00] Speaker 05:
I didn't know that was the reason you had declined.

[00:40:04] Speaker 04:
Did the district court make some findings on that?

[00:40:06] Speaker 04:
Now the district court I did finally find, the district court did find, this is why I was perplexed with the original argument, the district court specifically found that B and C were not raised.

[00:40:19] Speaker 04:
by the plaintiff.

[00:40:21] Speaker 04:
Why didn't you say that?

[00:40:22] Speaker 04:
Why are you going around with dancing around here?

[00:40:25] Speaker 04:
I mean, you all are supposed to be working on the record.

[00:40:27] Speaker 04:
The district court, right or wrong, the district ADA also defines disability as a record of impairment or being regarded as having.

[00:40:34] Speaker 04:
The court found, however, that Alexander did not allege either of those definitions as a basis for his claim.

[00:40:40] Speaker 04:
Well, you haven't said a single thing about that.

[00:40:44] Speaker 04:
Well, and Your Honor, apologies, but the focus... I don't have to apologize.

[00:40:48] Speaker 04:
It's a good way to lose a case.

[00:40:50] Speaker 04:
We're trying to figure out what the arguments are here.

[00:40:55] Speaker 04:
That was why I asked counsel on the other side, initially, was that raised?

[00:41:00] Speaker 04:
Now I recall that the district court specifically said it was not raised.

[00:41:06] Speaker 04:
Yes.

[00:41:06] Speaker 03:
Well, are you trying to... And would you rather submit that they have waived it by doing so?

[00:41:11] Speaker 04:
I believe that's... Why not at the outset?

[00:41:14] Speaker 04:
Yeah, why wouldn't that be your first argument?

[00:41:16] Speaker 04:
I'm not getting this case.

[00:41:18] Speaker 04:
Why...

[00:41:20] Speaker 04:
We're talking about the statute being amended and on and on, and your answer should have been, it doesn't matter.

[00:41:26] Speaker 04:
Because B and C are not in play here, but you didn't argue that.

[00:41:30] Speaker 04:
So we could say you waived it too.

[00:41:33] Speaker 04:
You waived the response to the waiver.

[00:41:34] Speaker 04:
I mean, this isn't making any sense.

[00:41:36] Speaker 04:
We're trying to get some clarity here.

[00:41:39] Speaker 04:
Is that your argument or not?

[00:41:41] Speaker 04:
Yes, it is my argument.

[00:41:43] Speaker 05:
Did you make the point in the brief that B and C were not relied on below?

[00:41:48] Speaker 03:
I do not believe we said that, but I don't think the plaintiff argued that it was.

[00:41:51] Speaker 04:
You don't know what you argued in the brief on those two points?

[00:41:55] Speaker 04:
Those are critical matters.

[00:41:58] Speaker 04:
You didn't raise that in your brief?

[00:42:00] Speaker 06:
Maybe the district court was wrong since you were talking.

[00:42:02] Speaker 06:
All the evidence was about not rehiring people who violated the substance abuse policy in the past.

[00:42:08] Speaker 05:
Well, wait a minute.

[00:42:09] Speaker 05:
Now I'm really confused, because did the appellant assert that the district court erred by stating that B and C were not raised?

[00:42:20] Speaker 05:
If the appellant didn't assert that, then you're not at fault for not responding.

[00:42:25] Speaker 05:
But this is really getting very confusing.

[00:42:27] Speaker 06:
Well, they briefed record and regarded as

[00:42:30] Speaker 06:
in their opening brief.

[00:42:32] Speaker 06:
They've argued it and they cited it in their record where they raised it below, correct?

[00:42:36] Speaker 04:
Well, did they challenge the district court?

[00:42:38] Speaker 04:
We can ask them when they come back.

[00:42:40] Speaker 04:
The district court is very specific in saying B and C were not raised.

[00:42:46] Speaker 03:
Your Honor, if I may just briefly address, because I know my time's expired, but the statute of limitations issue is a very important issue, because there are other cases in the pipeline at the district court.

[00:42:59] Speaker 05:
Yes, and I think you're actually, if you had to decide, I think you're right.

[00:43:03] Speaker 05:
It's a one-year statute, because it's much more logical to analogize.

[00:43:08] Speaker 05:
I don't care what the other circuits have done.

[00:43:10] Speaker 05:
It's much more analogous to a discrimination statute than it is at tort.

[00:43:15] Speaker 05:
In the typical tort, it's often the plaintiff doesn't know what the consequences of an injury or a tort would be for years, which is why you have a three-year statute.

[00:43:29] Speaker 05:
When it's discrimination, that isn't a problem.

[00:43:31] Speaker 05:
So the one-year statute makes more sense.

[00:43:33] Speaker 05:
But so what?

[00:43:35] Speaker 05:
If you take the one-year statute in the district, you should also take the toll.

[00:43:40] Speaker 03:
Your Honor, Jaiola says that.

[00:43:43] Speaker 03:
But how the difference between Jaiola, if I'm pronouncing it right in this case, is in Jaiola, they had the DC Human Rights Act, which specifically provides or allows them to take the administrative route.

[00:43:59] Speaker 03:
The Rehabilitation Act cases should not go to the EEOC.

[00:44:05] Speaker 03:
There's no jurisdiction for the EEOC to do that.

[00:44:09] Speaker 03:
If this was a Title VII case, even if it was an ADA case... You're relying on the Supreme Court case in Johnson.

[00:44:16] Speaker 05:
Exactly, Your Honor.

[00:44:18] Speaker 03:
Precisely.

[00:44:19] Speaker 03:
And Judge Urbina got it in the Adams case.

[00:44:23] Speaker 03:
Now, admittedly, Adams came out before.

[00:44:26] Speaker 03:
All of a sudden, he was thinking it was a three-year statute.

[00:44:30] Speaker 03:
But put that aside, plug in the one-year statute with that.

[00:44:34] Speaker 03:
The rationale that Judge Urbina advanced in the Adams case is totally consistent with the Supreme Court's decision in Johnson.

[00:44:43] Speaker 06:
It's awfully confusing, though, because at least as to rehabilitation act claims against

[00:44:48] Speaker 06:
the government directly that we have precedent that holds that its exhaustion is mandatory and jurisdictional.

[00:44:56] Speaker 03:
But that's not the case for a state-level interstate compact agency like Wmota.

[00:45:02] Speaker 06:
That's the confusion then about whether they should follow the ADA model of exhaustion or the Rehab Act I. You can imagine how confusing it would be for somebody.

[00:45:11] Speaker 06:
Because if they look at you as a government, then they've got to exhaust.

[00:45:17] Speaker 06:
If they look at you as private, then they're doing the ADA private exhaustion route, and you say neither one works.

[00:45:23] Speaker 06:
It's best if you don't exhaust at all.

[00:45:25] Speaker 03:
That's right.

[00:45:25] Speaker 03:
And the plaintiffs, at a minimum, should have filed if they thought they might have to go to EEOC.

[00:45:32] Speaker 03:
They should have filed a protective suit or whatever.

[00:45:35] Speaker 03:
The one-year statute applied has run.

[00:45:39] Speaker 03:
And the case is untimely if you take the Johnson rationale from the Supreme Court, which I respectfully submit this court must do.

[00:45:48] Speaker 06:
Did you see Court of Appeals adopted that and said that the exhaustion, its tolling provision only applies to mandatory exhaustion?

[00:45:56] Speaker 06:
I didn't think they had.

[00:45:59] Speaker 03:
They have gotten into that.

[00:46:01] Speaker 03:
I've shepherdized J.A.

[00:46:03] Speaker 03:
Ola and I didn't see anything along those lines.

[00:46:06] Speaker 03:
But in J.A.

[00:46:07] Speaker 03:
Ola, they were particularly dealing with the D.C.

[00:46:10] Speaker 03:
Human Rights Act, which specifically allowed the plaintiff, I believe it was the option there.

[00:46:16] Speaker 03:
I don't think it was mandatory to

[00:46:19] Speaker 03:
seek the administrative relief.

[00:46:22] Speaker 03:
That is not the case there.

[00:46:24] Speaker 03:
In this case, it should be barred by the one-year statute of limitations.

[00:46:28] Speaker 03:
The Court may feel this is a tough thing for plaintiffs to meet, but Congress can always change the statute of limitations should they deem it necessary to do so.

[00:46:42] Speaker 06:
Thank you very much.

[00:46:43] Speaker 03:
Thank you, Your Honor.

[00:46:45] Speaker 06:
Ms.

[00:46:46] Speaker 06:
Worker will give you two minutes.

[00:46:50] Speaker 05:
We have a question for you right at the outset.

[00:46:52] Speaker 05:
Did you challenge the district court's determination that B and C were not involved in the case?

[00:46:58] Speaker 01:
Yes, we did.

[00:46:59] Speaker 05:
Where?

[00:46:59] Speaker 05:
In our brief.

[00:47:00] Speaker 05:
We did.

[00:47:01] Speaker 01:
Yes.

[00:47:02] Speaker 01:
You specifically point out those areas that I was offering to the court as to why we feel there was a record.

[00:47:07] Speaker 04:
No, no, no.

[00:47:08] Speaker 04:
I want to be really clear on this, because this case has gotten very confusing.

[00:47:13] Speaker 04:
So you may not have done it this way, and after you answer my question, you can say, no, I didn't, but I did it this way.

[00:47:20] Speaker 04:
In this situation, my perception of how this would come up is district court made very specific findings.

[00:47:27] Speaker 04:
B and C are not in play.

[00:47:29] Speaker 04:
Counsel on the other side, objecting to that, would have section whatever, A, we went under.

[00:47:36] Speaker 04:
Now we'll move into the next section.

[00:47:38] Speaker 04:
B, the district court was wrong.

[00:47:41] Speaker 04:
In that determination, we raised it, and here's our argument on B. Next section, Fisher-Cole was wrong on C in saying we didn't raise it.

[00:47:50] Speaker 04:
We did.

[00:47:50] Speaker 04:
Here's our argument.

[00:47:51] Speaker 04:
Is that in your brief?

[00:47:52] Speaker 04:
I don't remember that.

[00:47:53] Speaker 01:
It is.

[00:47:54] Speaker 04:
Where?

[00:47:54] Speaker 04:
Where?

[00:47:55] Speaker 04:
You have separate sections on B and separate sections on C?

[00:48:00] Speaker 01:
We believe, with respect to, I'm going to try and find the actual page.

[00:48:18] Speaker 06:
I think it's page 8.

[00:48:19] Speaker 06:
District Court aired in finding that Mr. Alexander does not allege record or history.

[00:48:24] Speaker 06:
On page 8 at the top?

[00:48:24] Speaker 05:
That is correct.

[00:48:26] Speaker 05:
Page 8 of the blue brief.

[00:48:30] Speaker 01:
Top of the page.

[00:48:32] Speaker 01:
And what we did was in that.

[00:48:34] Speaker 04:
Let's say you do.

[00:48:35] Speaker 04:
I'm just confused and I don't remember.

[00:48:37] Speaker 04:
So I want you to have an opportunity to tell me so I'll know what to look at when I walk out of here.

[00:48:42] Speaker 01:
And we did.

[00:48:43] Speaker 01:
And specifically what I think is also important is the inquiry made by the court for WMATA during the course of both.

[00:48:51] Speaker 05:
I see where you've made the statement on page eight.

[00:48:53] Speaker 05:
Excuse me.

[00:48:53] Speaker 05:
Now, where do you elaborate that?

[00:48:58] Speaker 04:
In other words, did you follow the model?

[00:49:00] Speaker 04:
I'm not saying the Edwards model is the only model, but did you do the Edwards model of a brief that is, okay, this court was wrong and here's our argument on B, this court was wrong and here's our argument on C. What pages are all of those arguments fleshed out?

[00:49:13] Speaker 01:
Let me point the court's attention to the joint appendix, which is the brief.

[00:49:19] Speaker 01:
The brief is in the joint appendix.

[00:49:21] Speaker 01:
No, no, no.

[00:49:22] Speaker 01:
Your brief in this court is what we're talking about.

[00:49:23] Speaker 01:
Oh, you mean the brief that we filed with the court?

[00:49:25] Speaker 01:
Yes.

[00:49:25] Speaker 04:
Your indulgence.

[00:49:27] Speaker 04:
That's what I'm trying to say.

[00:49:28] Speaker 04:
Where did you pull out those two arguments and say, this court's wrong.

[00:49:33] Speaker 04:
Here are our fleshed out arguments on B and C. I understand.

[00:49:39] Speaker 01:
So starting on page 12 of our brief, the caption reads, the record evidence gives rise to material facts in dispute as to whether Mr. Alexander's alcoholism substantially limited a major activity.

[00:49:50] Speaker 01:
And on the very next page, it says under A, Mr. Alexander had a record of a disability at the time of his non-selection.

[00:49:57] Speaker 04:
And what about C?

[00:50:01] Speaker 04:
14 to 16 is C?

[00:50:04] Speaker 01:
Your indulgence shows.

[00:50:14] Speaker 01:
I think it's page 23 maybe.

[00:50:16] Speaker 01:
That is correct.

[00:50:17] Speaker 01:
At the bottom of page 23, under C, it indicates alternatively will model regarded Mr. Alexander as having a disability at the time of his time selection.

[00:50:27] Speaker 01:
What I was going to address as well is the fact that during the course of both the briefing and the discovery and the filing of a summary judgment motion in the opposition file, at no point did WMATA articulate or ever indicate that Mr. Alexander did not meet the standards under either regarded as or record of.

[00:50:46] Speaker 01:
As a matter of fact, the issue of whether or not Mr. Alexander

[00:50:51] Speaker 01:
said or argued that there was a regarded as a record of was for the first time found by the appellant in the footnote for Judge Chutkin's opinion.

[00:51:02] Speaker 01:
There's nothing in the record of the child transcript where there's any discussion or any concession or waiver.

[00:51:08] Speaker 01:
As a matter of fact, it has been our position all along as referenced in our briefs and presented here today.

[00:51:13] Speaker 01:
that that was something that was argued and presented.

[00:51:15] Speaker 06:
Can I ask you something about, you talk about a contingent offer that he got.

[00:51:20] Speaker 06:
What is a contingent offer?

[00:51:21] Speaker 06:
I mean, it's got to be contingent on something, and it sounded like he still had to go through a physical exam, maybe background checks.

[00:51:28] Speaker 06:
So does a contingent offer say anything about whether they think he's qualified, subject to, or

[00:51:36] Speaker 06:
Or are the qualifications coming after?

[00:51:39] Speaker 06:
Are they part of the contingent standpoint?

[00:51:40] Speaker 01:
The contingent offer had to do with what you just stated, the medical exam, background checks, and things of that sort.

[00:51:48] Speaker 01:
It had nothing to do with any issues with respect to qualifications.

[00:51:52] Speaker 01:
So Mr. Alexander, as we indicate in this record, met the qualifications after receiving the contingent offer, met the remaining qualifications for being allowed to have been plundered with Mamata, and was denied that based upon his disability.

[00:52:05] Speaker 05:
This really jumps ahead just for my own understanding.

[00:52:12] Speaker 05:
Even if he were an existing alcoholic, as in your view and under the statute, the Ramada could not refuse to hire him unless there was evidence that he used alcohol on the job.

[00:52:30] Speaker 01:
Even if he's an existing alcoholic, my response would be that alone would not be a basis for the modern not to.

[00:52:36] Speaker 05:
But if he used alcohol on the job, that is it.

[00:52:40] Speaker 05:
That's what the statute says, right?

[00:52:41] Speaker 01:
Exactly.

[00:52:42] Speaker 01:
If he was using alcohol on the job.

[00:52:44] Speaker 01:
Correct.

[00:52:45] Speaker 01:
Thank you.

[00:52:46] Speaker 01:
Thank you for your time, Your Honor.

[00:52:47] Speaker 04:
And your additional argument, as I'm now putting it all together, is that you raised B and C, contested the district court, explained your position, and you're further saying, and look, the government didn't contest our contest.

[00:53:00] Speaker 01:
That is correct.

[00:53:01] Speaker 04:
All right.

[00:53:01] Speaker 01:
Thank you, Your Honors.

[00:53:02] Speaker 01:
Thank you.

[00:53:02] Speaker 01:
The case is submitted.