[00:00:02] Speaker 03:
Case number 15-7064, Green O. Hill, Appellant vs. Associate for Renewal in Education and Inc.

[00:00:11] Speaker 03:
Mr. Dean for the Indicus Cari, Ms.

[00:00:13] Speaker 03:
Yoon for the Appellate.

[00:00:16] Speaker 00:
Good morning, may it please the court, my name is Yongo Ding, and I'm amicus on behalf of the appellant, Mr. Brian Hill.

[00:00:24] Speaker 00:
I would like to reserve two minutes for rebuttal.

[00:00:27] Speaker 00:
The appeal raises numerous issues, and I'm gonna focus on two.

[00:00:32] Speaker 00:
Specifically, the district court erred in granting summary judgment to the school, first, on the reasonable accommodation claim for a classroom aid, and second, on the hostile work environment claim.

[00:00:46] Speaker 00:
On the classroom aid claim, the district court erred because a reasonable jury could find that having a classroom aid would have effectively addressed Mr. Hill's limitation with standing for long periods of time by allowing him to sit down more often while still teaching and instructing his class.

[00:01:05] Speaker 00:
And here's what the law says.

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The ADA protects a qualified individual, meaning someone who has a disability, but who can still perform the essential job duties, even without reasonable accommodation.

[00:01:18] Speaker 06:
So does the aid have to be associated with non-core functions?

[00:01:27] Speaker 00:
Yes, and the way essential job duties is defined is that the ADA regulations point to several factors.

[00:01:38] Speaker 00:
A couple of the important factors include what are other employees in the same position doing, as well as what's the employer's written job description say.

[00:01:50] Speaker 00:
All of the other program aides, and Mr. Hill's a program aide, but all of the other program aides each have at least one classroom aide, which means it can't be said that teaching alone without the help of a classroom aide is an essential job duty.

[00:02:05] Speaker 02:
What Judge Bates obviously was focused on this and asked for additional briefing or evidence

[00:02:17] Speaker 02:
on this, I guess, evidence on this question.

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And then it came back, and he just wasn't convinced that there had been a connection between being on the first floor and still needing an aide would do anything in terms of the disability.

[00:02:36] Speaker 02:
answer that conundrum, because a lot of this was about the third floor rather than the first floor.

[00:02:42] Speaker 02:
It wasn't as focused as much on the first floor, and Judge Bates asked for evidence on that and then found that it still wasn't sufficient.

[00:02:49] Speaker 00:
Right.

[00:02:50] Speaker 00:
I think the district court was wrong, because based on the record, a reasonable jury could find this connection between having class roommate and

[00:03:03] Speaker 06:
Well, this court hasn't spoken on the legal question.

[00:03:08] Speaker 06:
So I was trying to understand what Judge Bates was focusing on.

[00:03:12] Speaker 00:
Sure.

[00:03:13] Speaker 06:
And in his opinion in Edwards, he states the question as whether the requested accommodation would be an effective means of responding to the plaintiff's disability.

[00:03:30] Speaker 06:
So to the extent that

[00:03:33] Speaker 06:
the plaintiff said he could do the core functions.

[00:03:38] Speaker 06:
And as Judge Kavanaugh was just pointing out, the main focus was he was on the third floor and needed to be on the first floor.

[00:03:49] Speaker 06:
So do you accept Judge Bates's definition of what you need to show in terms of what I just read you, an effective means of responding to the disability?

[00:04:03] Speaker 06:
In other words, the fact that everybody else has it may be, I don't know, interesting, but is it an ADA relevant consideration when at least the district court admittedly in another opinion, he wrote, talks about an effective means of responding to the disability.

[00:04:34] Speaker 00:
I can't recall the exact language, but I think I generally agree with that, because the Supreme Court in U.S.

[00:04:40] Speaker 00:
Airways versus Barnett, and the citation is 535 U.S.

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391, held that the term accommodation conveys the need for effectiveness.

[00:04:51] Speaker 00:
And the District Court, I think, correctly explained the law that accommodation, by definition, has to effectively address the limitations imposed by the disability.

[00:05:01] Speaker 00:
So that's on the legal side.

[00:05:02] Speaker 00:
And coming back to your question regarding what the record shows, the record's clear that it's undisputed Mr. Hill's a single-leg amputee.

[00:05:13] Speaker 00:
He wears a prosthetic leg.

[00:05:16] Speaker 00:
And he injured his stump in May of 2007.

[00:05:18] Speaker 02:
But just, I'm aware of all that, and that's obviously key to the case.

[00:05:24] Speaker 02:
But on the first floor, if he's teaching,

[00:05:31] Speaker 02:
Why does the aid help in any way with the disability?

[00:05:37] Speaker 02:
Presumably you're standing for a while and you can teach while sitting too, I assume, although that's not really explored in the record, which is one of the holes that I saw.

[00:05:48] Speaker 00:
So I'll just quickly explain what the limitation was, what the classroom looked like, and then what the connection was between the classroom aid and the limitation.

[00:05:58] Speaker 00:
So in supplemental briefing, and that's on page 422 of our appendix,

[00:06:03] Speaker 00:
Mr. Hill explained that his physical limitation due to his disability was standing for long periods of time without the hazard of pain and bruises.

[00:06:14] Speaker 00:
He also explained in the same paragraph that he stood for long periods of time because he supervised his classroom alone.

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He was working with young children.

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For example, in 2008, he was working with 15 kids between the ages of 7 to 11.

[00:06:33] Speaker 00:
Yes, Mr. Hill doesn't say this, but a reasonable jury could infer that you can't teach kids just sitting behind a class, especially because he had to personally interact with the kids.

[00:06:47] Speaker 02:
We don't have much on that.

[00:06:48] Speaker 02:
I mean, there's not much in the record one way or another on that.

[00:06:52] Speaker 02:
That's potentially a key point.

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How much do you have to stand and how much could you sit while teaching this particular class?

[00:06:59] Speaker 02:
What do we do?

[00:07:00] Speaker 02:
I know it wasn't raised below, as you point out, with the paragraph in the complaint that suggests that so long as he was moved to the first floor, that would suffice.

[00:07:13] Speaker 00:
I don't think that means Mr. Hill was admitting to not needing a classroom aid.

[00:07:19] Speaker 00:
I think we have to take that partial phrase that's from paragraph 37 of the complaint in its full context.

[00:07:25] Speaker 00:
In the context of even the full statement, Mr. Hill goes on to clarify that his disability, quote, did not prevent him from performing essential job duties, end quote.

[00:07:35] Speaker 00:
So in other words, he was just saying that even though he has this permanent stump that caused unpredictable spasms, he's still a qualified individual who can still perform his essential job duties even with- So the district court said he wasn't clear

[00:07:52] Speaker 06:
exactly what the essential job duties were and relied on the job description.

[00:08:00] Speaker 06:
So you're not challenging that, but did the job description go beyond classroom teaching?

[00:08:08] Speaker 06:
Because I thought on the third floor, part of the problem, he was up and down the steps because of recess and getting the kids in and out, et cetera.

[00:08:19] Speaker 06:
So there was more than

[00:08:21] Speaker 06:
sort of the academic role of teaching that was part of the core of his job.

[00:08:28] Speaker 06:
Is that correct?

[00:08:30] Speaker 00:
Right, he needed to be personally, well the teacher in the room needed to be personally interacting with the kids and if Mr. Hill had another classroom mate to help interact with these 15, 17, 11 year olds, he would have been able to sit down more often while still performing his job duties as a program mate of instructing and interacting with the kids.

[00:08:52] Speaker 02:
Do we know how much time he thought he needed to be standing and how much he could be sitting while teaching the class?

[00:09:03] Speaker 00:
We don't know exactly, but on summary judgment, I think a reasonable jury drawing inferences most favorable to the non-moving party, Mr. Hill, a reasonable jury could easily find out when you're teaching

[00:09:14] Speaker 00:
15 kids that are 7 to 11 years old, you couldn't be sitting all the time.

[00:09:19] Speaker 00:
Not all the time, right.

[00:09:22] Speaker 02:
So that's why I asked the question phrased as I did, which is how much did he think he needed to be standing, how much could he be sitting.

[00:09:30] Speaker 02:
And I realize that's a technicality and this is a pro se case, so I get all that, but I'm just wondering if there's anything about that.

[00:09:37] Speaker 01:
Didn't Mr. Hill also introduce evidence that he needed the aid because he had to supervise the children on the playground and going to the restroom and other things of that nature?

[00:09:54] Speaker 00:
Correct, and if he had a classroom aid to help him with those activities as well, a reasonable jury could infer he would have been able to sit down more often and rest the stump that he injured in May of 2007.

[00:10:07] Speaker 06:
All right, anything further?

[00:10:12] Speaker 00:
I'd like to reserve the rest of my time for rebuttal.

[00:10:14] Speaker 00:
Fine, thank you.

[00:10:17] Speaker 05:
Thank you.

[00:10:17] Speaker 05:
All right, Councilor F. Lee?

[00:10:35] Speaker 04:
May I please the court?

[00:10:37] Speaker 04:
My name is Ji-young Yoon representing Associates for Renewal in Education or ARE.

[00:10:44] Speaker 04:
Appellant has brought three issues before this court, but I'm only going to address in response to amicus the two issues which are

[00:10:59] Speaker 04:
that whether the district court has erred in granting summary judgment against Mr. Hill on the issue of hostile work environment, and whether the district court erred in issuing granting summary judgment on his claim of his need for reasonable accommodation with an aid.

[00:11:17] Speaker 06:
Could I ask you, do you agree or do you dispute that the core functions included

[00:11:28] Speaker 06:
not only the classroom teaching, but the supervision in the playground and escorting children to the restroom and that type of thing as well.

[00:11:41] Speaker 04:
The facts provided by both Airy and Mr. Hill does not really clarify what his core essential job functions are.

[00:11:50] Speaker 04:
However, it is unclear, yes.

[00:11:55] Speaker 06:
Well, as the non-moving party, he gets the benefit of all reasonable inferences.

[00:12:02] Speaker 06:
And when you look at the job description, which is what the district court did,

[00:12:08] Speaker 06:
Are you disputing that?

[00:12:11] Speaker 04:
No, no, we're not disputing anything about his job descriptions.

[00:12:17] Speaker 04:
In regards to his hostile work environment, amicus has presented three-pronged argument before this court.

[00:12:25] Speaker 04:
Those arguments are that ARE has created hostile work environment by failure to assign him from third floor to lower level facility and through ARE's retaliation against Mr. Hill with enhanced discipline

[00:12:42] Speaker 04:
for his assertion of his rights under ADA.

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And lastly, through ARU's failure to provide him with full-time aid, as he requested.

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Appellant cannot argue a reversal of district court's decision on the basis of third floor issue and the issue of retaliatory discipline or termination.

[00:13:08] Speaker 04:
The third floor issue has already been litigated to the court below,

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And the final judgment was entered in favor of Mr. Hill.

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And he was fully compensated for any damages related to that issue.

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of claim that had full and fair opportunity to litigate to the certify final judgment is precluded from hearing, heard by the court again.

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Otherwise, it will violate the principle of res judicata, and it will also violate the, any compensation that arise from that second re-litigation will violate the violation of unjust enrichment.

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On the issue of retaliatory discipline and termination, that has also fully tried in court below on the merits to the final judgment.

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This time, it was against Mr. Hill.

[00:14:00] Speaker 04:
To allow Mr. Hill to be litigate by assigning error to the court below for granting summary judgment on retaliatory discipline under new label of hostile work environment will again violate the principle of restricata.

[00:14:18] Speaker 04:
So therefore, out of three-pronged argument amicus raised, two of the issue has been already fully litigated to final judgment, thus cannot be used to base the reversal of this district court's decision to dismiss hostile work environment.

[00:14:37] Speaker 01:
Can I go back to the reasonable accommodation claim?

[00:14:41] Speaker 01:
Yes.

[00:14:45] Speaker 01:
We said in Adams,

[00:14:47] Speaker 01:
that walking is a major life activity.

[00:14:52] Speaker 01:
That was a case that was cited by the district court below.

[00:14:58] Speaker 01:
It seemed would seem to follow from that that standing is a major life activity.

[00:15:04] Speaker 01:
Would you agree with that?

[00:15:05] Speaker 04:
Yes, I agree with that.

[00:15:07] Speaker 01:
OK, so how do you?

[00:15:09] Speaker 01:
Explain for defend the district courts ruling that.

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Having an aid that Mr Hill had not shown that having an aid.

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Would address effectively.

[00:15:27] Speaker 01:
The limitations imposed.

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By his disability as in having to stand for long periods of time.

[00:15:37] Speaker 04:
Mr. Hill in his complaint described his limitation as that he has a fear for hazard of pain and bruises due to prolonged standing.

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And the district court below did not have, in front of the court, did not have the facts that shows any sign of the hardship.

[00:16:05] Speaker 04:
In fact, for a 13-month period of time, the fact shows that he performed

[00:16:11] Speaker 04:
his job duties without suffering from any pains from prolonged standing, any bruises from prolonged standing.

[00:16:18] Speaker 01:
What's the evidence that he didn't have any pain?

[00:16:21] Speaker 04:
Excuse me sir?

[00:16:22] Speaker 01:
What's the evidence that he did not have pain during that time?

[00:16:26] Speaker 04:
He did not provide any facts to this report that he suffered any.

[00:16:30] Speaker 04:
He said he feared

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the pain or bruises.

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The mere hazard of pain or bruises is assertive.

[00:16:39] Speaker 01:
So him saying that he fears pain is an admission that he didn't have pain, that he was only fearing that he might have pain?

[00:16:49] Speaker 04:
might have a pain or there's a possibility of bruise from walking or standing too long does not mean, I don't believe it means that he has actually suffered from any of those.

[00:17:04] Speaker 04:
The district court on his own order saw the connection, lacking the connection between the prolonged standing and

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why his aid is effective means to address his physical limitation, ordered Mr. Hill to provide supplemental facts or evidence to support his claim.

[00:17:27] Speaker 04:
And Mr. Hill did not provide any of those.

[00:17:29] Speaker 01:
Let's suppose we believe that reading the evidence in the light most favorable to Mr. Hill

[00:17:37] Speaker 01:
that a reasonable jury could find that he would suffer pain or discomfort from having to stand a long period of time supervising and teaching.

[00:17:50] Speaker 01:
Then if that's the case, then why wouldn't an aide who could help with that supervision and that teaching, why wouldn't that have some sort of positive effect or impact on Mr. Hill's limitation?

[00:18:15] Speaker 04:
Even if the facts provided by Mr. Hill is taken in most favorable way to Mr. Hill,

[00:18:25] Speaker 04:
even for the pro se person, that he still has to meet the burden to prove why an aide is a reasonable accommodation.

[00:18:35] Speaker 04:
And by meaning of reasonable accommodation, he has to prove that an aide has to be essential, most effective means to address his physical limitation.

[00:18:46] Speaker 04:
And physical limitation he addressed to district court is that he has

[00:18:51] Speaker 04:
fear of hazard from having a pain or bruises from stand too long or walking too much.

[00:19:00] Speaker 05:
Wasn't there evidence about spasms?

[00:19:05] Speaker 04:
Yes, he said there is a potential unexpected spasm that he could experience.

[00:19:13] Speaker 04:
However, because he described it as unexpected spasm, it could happen any time.

[00:19:19] Speaker 04:
It could happen while he's sitting in a chair watching TV at home, or it could happen while he's walking from the supermarket, or it could happen any time.

[00:19:27] Speaker 04:
He did not connect those two dots of prolonged standing and essential mean

[00:19:34] Speaker 04:
alleviate his pain or bruises.

[00:19:36] Speaker 06:
Nobody connected it to his physical condition.

[00:19:44] Speaker 04:
He did so.

[00:19:45] Speaker 04:
He said that because of his physical condition, he has all those potential risks.

[00:19:55] Speaker 04:
But he did not present it to the district court at the time of summary judgment that because of his duties, which requires him to walk in too long and requires him to stand too long, caused any of those

[00:20:15] Speaker 04:
Therefore, before the district court, it did not have any facts to support his request for aid, and without having any evidence to support his claim that he needs one as a reasonable accommodation, I believe the district court did not err in granting summary judgment against Mr. Hill.

[00:20:39] Speaker 06:
All right, thank you.

[00:20:41] Speaker 06:
Council for Appellant, do you want to respond?

[00:20:54] Speaker 00:
I'll just make two arguments on rebuttal.

[00:20:58] Speaker 00:
As to the reasonable accommodation claim, I think actual pain is a red herring because the tests of reasonable accommodation focuses on just the physical limitation imposed by one's disability.

[00:21:09] Speaker 02:
And he could walk and stand, correct?

[00:21:14] Speaker 02:
Yes.

[00:21:15] Speaker 02:
So the problem was standing, as I see it described by the district court, walking for long distances or standing for long periods of time.

[00:21:25] Speaker 02:
Correct.

[00:21:26] Speaker 02:
And that's why the question became, that I had before, I still have, which is, did this job

[00:21:33] Speaker 02:
require standing for long periods of time, or could you stand and say someone needs to go to the restroom, he could walk the person to the restroom, presumably because that's not going to be a long period of time or a long distance, so too for the playground.

[00:21:47] Speaker 02:
I guess I'm just about how much he needed to stand in this job.

[00:21:54] Speaker 02:
I can rely on common sense for it being a lot he would need to be on his feet, but there's nothing really describing that.

[00:22:02] Speaker 00:
Right, Mr. Hill doesn't exactly say exactly how much he had to walk or how long he had to stand.

[00:22:09] Speaker 00:
But again, on some of your judgment, I think the reasonable inference is supposed to be drawing favor of the non-moving party, Mr. Hill.

[00:22:16] Speaker 02:
That's true, although I guess...

[00:22:19] Speaker 02:
The district court here really did bend over backwards by doing something that a lot of district courts wouldn't have done, which is to issue an order saying, here's one hole, please fill in this hole if there is anything.

[00:22:32] Speaker 02:
And a lot of district judges would have just granted rather than doing that.

[00:22:37] Speaker 06:
What's your best reading of the record in response to Judge Kavanaugh's concern?

[00:22:47] Speaker 06:
In other words, what the jury had before it would be a man with a prosthetic leg who had to supervise about 15 children between 2 and 12 years old.

[00:23:07] Speaker 06:
He was both their academic teacher and their recreational supervisor.

[00:23:15] Speaker 06:
And what else is there?

[00:23:16] Speaker 06:
He had phasms now and then.

[00:23:19] Speaker 06:
He had fallen and damaged his prosthesis.

[00:23:28] Speaker 06:
So he's concerned about that.

[00:23:29] Speaker 06:
What else would have been before the jury on this record?

[00:23:39] Speaker 00:
Right.

[00:23:40] Speaker 00:
I think I would direct the court to pages 424, 425 of the amicus appendix, and I'm pointing you to the supplemental briefing that Mr. Hill submitted in response to the district court's request.

[00:23:55] Speaker 00:
He lists some of the activities that he had to do because he was supervising his classroom alone.

[00:24:01] Speaker 00:
So they included, for example, inspecting each student for loose clothing and laces, daily reviewing and enforcing in-class and outdoor rules of play, supervising students' outdoor play area to ensure it was free of puddles and slippery areas,

[00:24:18] Speaker 00:
And these are all tasks that, for all the other program aids, they had a class roommate, at least one, to share these duties with, and one can... But we're back to what is the standard, the effective means of addressing the disability.

[00:24:34] Speaker 06:
So the argument, as I understand it, by Pelley, is, you know, everything I said is true.

[00:24:41] Speaker 06:
But suppose in fact he could stand for 23 hours out of every 24 hours without a problem.

[00:24:51] Speaker 06:
So why does he need an aide to assist him because he can't stand too long when the school day is not 23 hours long?

[00:25:03] Speaker 06:
Isn't that what you have to push back against?

[00:25:06] Speaker 06:
And isn't that what the district court was looking for?

[00:25:12] Speaker 00:
Sorry, Your Honor, do you mind rephrasing again?

[00:25:15] Speaker 06:
In other words, hypothetically, if Mr. Hill could stand 23 hours out of 24 hours without any problem, then he has a classroom school assignment for eight hours of that day.

[00:25:42] Speaker 06:
Where is the evidence that having a classroom aide is in any way going to effectively address his inability to stand for every hour out of the day?

[00:26:00] Speaker 00:
I think under your hypothetical, it wouldn't because we're assuming that Mr. Hill could stand for 23 hours a day without a problem.

[00:26:08] Speaker 06:
So that's the pushback where the defendant says, Mr. Hill hasn't told us.

[00:26:16] Speaker 06:
As I understand it, I don't want to put words in Judge Kavanaugh's mouth, but isn't that the concern here?

[00:26:22] Speaker 06:
Where is the evidence about how long he could stand or could not stand without difficulty?

[00:26:30] Speaker 06:
And the school's argument is just fear is not enough.

[00:26:36] Speaker 00:
You're right, he doesn't say exactly how many hours he could stand at once without sitting down, but in supplemental briefing on page three, he did clarify his disability substantially limited his ability to stand for long periods of time as required because he taught his classroom alone.

[00:27:01] Speaker 00:
And again, I think I come back to the summary judgment standard

[00:27:06] Speaker 02:
Can I just make sure I have the ages of the students in his classroom correct?

[00:27:11] Speaker 00:
Yeah.

[00:27:12] Speaker 00:
So the program itself involves kids from ages 2 to 11 for the 2008 to 2009 school year and that's part of the relevant period of issue.

[00:27:24] Speaker 00:
He was working with kids from ages 7 to 11 and that's

[00:27:29] Speaker 02:
So he didn't have two to six year olds in that year?

[00:27:32] Speaker 00:
Correct.

[00:27:33] Speaker 00:
And that's on page 115 of the appendix, if you want.

[00:27:38] Speaker 06:
Okay, thank you very much.

[00:27:39] Speaker 06:
We'll take the case under advisement.

[00:27:41] Speaker 00:
Okay, thank you.