[00:00:00] Speaker 04: Case number 17-1592, Sharon Lee Reagan Diaz appellant versus Jeff Sessions, United States Attorney General. [00:00:08] Speaker 04: Ms. [00:00:08] Speaker 04: Carlton for the appellant, Mr. Kolsky for the appellate. [00:00:49] Speaker 03: All right, Miss Carlton. [00:00:54] Speaker 04: Good morning, Your Honors. [00:00:56] Speaker 03: Good morning. [00:00:57] Speaker 04: May it please the court. [00:00:58] Speaker 04: My name is Cedar Carlton. [00:00:59] Speaker 04: I'm here representing Miss Sharon Lee Reagan Diaz. [00:01:04] Speaker 04: I'd like to reserve three minutes for my rebuttal, if I may. [00:01:10] Speaker 04: On October 5th, 2012, the FBI told Miss Reagan Diaz in an email to stay home and keep collecting full-time workers' compensation payments, even though Miss Reagan Diaz wanted to start working at that time. [00:01:31] Speaker 04: And just a few days earlier, [00:01:33] Speaker 04: the highest level of division management, had said in an email that she would be able to help the FBI advance its mission on her requested limited hour schedule. [00:01:48] Speaker 04: And on that very day, [00:01:52] Speaker 04: October 5, 2012, when the FBI told Ms. [00:01:55] Speaker 04: Reagan-Diaz to keep taking full-time workers' compensation benefits, the supervisors in the Resource Planning Office of where Ms. [00:02:05] Speaker 04: Reagan-Diaz worked had just identified a suitable assignment for Ms. [00:02:11] Speaker 04: Reagan-Diaz in the Corporate Policy Office, which was another part of the Resource Planning Office. [00:02:17] Speaker 04: a suitable assignment that a jury could find Ms. [00:02:20] Speaker 04: Reagan Diaz in which Ms. [00:02:23] Speaker 04: Reagan Diaz could perform her essential functions of her job and in that email it explicitly said that Ms. [00:02:31] Speaker 04: Reagan Diaz would be able to perform that assignment [00:02:34] Speaker 04: on her requested schedule, which was two hours a day from an office close to home. [00:02:40] Speaker 02: So your client, at least until, I guess, May 2013, had never committed to anything more than two hours per day? [00:02:53] Speaker 04: Miss Reagan Diaz had requested to work two hours a day in order to increase her workday. [00:03:01] Speaker 02: Is there any case that suggests two hours per day is a reasonable accommodation that would enable a previously full-time employee to perform essential functions of a full-time job? [00:03:19] Speaker 04: Well, the Department of Labor ruled in the Lund case that an employee could come back to work on a two-hour day schedule and increasing their hours from then. [00:03:31] Speaker 02: And this court is... But for Rehab Act purposes? [00:03:38] Speaker 04: For the Rehabilitation Act purposes, [00:03:41] Speaker 04: I don't know the case where an employee requested to start two hours a day, but I do know that this court has repeatedly advised against categorical rules on accommodation requests. [00:03:56] Speaker 02: Sure, they can't categorically say we will never consider any adjustment of work schedule for any job because we don't feel like it. [00:04:10] Speaker 02: I don't know of any case that goes nearly this far to say that an employer has to come down to two hours a day where the employee was working in a job that was full-time and that seemed to put a premium on being at work and going to meetings frequently and the position was a liaison position. [00:04:36] Speaker 04: What the Supreme Court said in Barnett is that an accommodation needs to be reasonable on its face, which would be defined as something that would be feasible for the employer. [00:04:48] Speaker 04: And in this case, the division had the highest level of division management on May 22nd in response to an email where Ms. [00:04:55] Speaker 04: Reagan Diaz said she was ready to work two hours a day from an office close to home. [00:04:59] Speaker 04: That division had said that she would be able to do meaningful work [00:05:04] Speaker 04: on that schedule that she requested, and Barnett specifically defined reasonable on its face as something that's feasible for the employer, and here a jury could find that the division head knew what was feasible for his department. [00:05:19] Speaker 04: The district court ignored what the division head testified to in his deposition when he... The district court had two different grounds for finding that. [00:05:30] Speaker 03: the plaintiff could not fulfill the essential functions. [00:05:36] Speaker 03: One was that two hours a day wasn't sufficient, and then the second was that that schedule would not enable her to participate in impromptu meetings, especially impromptu meetings that might involve classified information. [00:05:55] Speaker 03: Um, Ian, I looked at the statement. [00:06:02] Speaker 03: I guess it's the plague of being a former district court judge. [00:06:07] Speaker 03: I looked at your statement of disputed facts and the responses there to and I never saw any evidence that you disputed [00:06:20] Speaker 03: that the nature of this work was that there were impromptu meetings. [00:06:26] Speaker 04: In this opposition to the statement of material facts, in the opposition assembly judgment, we cited to Ms. [00:06:35] Speaker 04: Reagan Diaz's affidavit, declaration, which said that some of the meetings that she had attended before her injury would have ended. [00:06:44] Speaker 03: So what was important to note was that... But she never says that they asserted as an affirmative fact that there are impromptu meetings. [00:06:55] Speaker 03: So her saying that the meetings that we used to have, we won't have those meetings anymore isn't responsive. [00:07:03] Speaker 03: It doesn't place that fact into dispute. [00:07:07] Speaker 03: She needs to say that there are no impromptu meetings. [00:07:11] Speaker 03: They could all be scheduled during my two hour window. [00:07:15] Speaker 04: Well, Your Honor, the evidence that there were not impromptu meetings in the relevant time period under Minter, which would have been at the time that the defendant was denying the accommodations post-injury after Ms. [00:07:28] Speaker 04: Reagan-Diaz was coming back to work as a disabled, wanted to come back to work as a disabled employee. [00:07:33] Speaker 04: In that period, another colleague [00:07:35] Speaker 04: a non-disabled colleague was allowed to work on the very same Sentinel projects one to two hours a day. [00:07:41] Speaker 04: That did not require more than two hours of availability for the impromptu meetings. [00:07:46] Speaker 04: So even if there were some impromptu meetings, a non-disabled colleague was able to do Ms. [00:07:52] Speaker 04: Reagan Diaz's projects in that two hours, and those were cited in her one to two-hour day schedule. [00:07:57] Speaker 03: But that was an employee that worked full-time but only devoted one to two hours a day to this project. [00:08:04] Speaker 03: Right, so they are available at any time for a meeting, so any time during their nine to five period. [00:08:15] Speaker 03: They can set aside or take 15 minutes here or 30 minutes there and another hour here to devote one to two hours to it. [00:08:25] Speaker 03: But what she's asking to do is something materially different from that, which is I want to work, you know, whatever it is, it'll be 10 to 12 this day or two to four the other day in any meetings that would have to take place that you would participate in would have to be during that window, right? [00:08:45] Speaker 04: Well, I see what you're saying. [00:08:49] Speaker 04: The thing is, is that a supervisor of that non-disabled colleague testified in his deposition on page 400, 401 of the record that the one to two hours a day was on top of Ms. [00:09:03] Speaker 04: Stoddard's other duties. [00:09:05] Speaker 04: So the non-disabled colleague was working full-time and had other duties where she would not have been available for impromptu meetings during the time. [00:09:15] Speaker 00: This is quite a leap to say she would not have been available for impromptu meetings. [00:09:18] Speaker 04: Well, I think it's a fact issue that a jury could infer that if this person was awarded for working above and beyond, is what the testimony was, that the one to two hours a day was above and beyond. [00:09:29] Speaker 04: A jury could decide that... You have to infer from something. [00:09:33] Speaker 04: Inferring from the fact that the other colleague had other duties, full-time other duties, and the one to two hours a day that she was doing where she was performing Ms. [00:09:45] Speaker 04: Reagan Diaz's projects was on top of her full-time work. [00:09:54] Speaker 04: that she wouldn't be available during the time that she was in meetings on her other projects, and that she was working full-time on other work. [00:10:03] Speaker 00: Well, remember, that happens to all employees. [00:10:04] Speaker 00: You're doing something else sometimes when you're needed for an impromptu meeting. [00:10:08] Speaker 00: Right. [00:10:09] Speaker 00: That doesn't require compensation. [00:10:11] Speaker 00: You figure that out. [00:10:11] Speaker 04: is that the FBI on October 5th identified a project, and in this email on 1622 to 23 of the record, specifically saying that they found other work that Ms. [00:10:24] Speaker 04: Regan-Diaz could do that did not require meetings. [00:10:26] Speaker 04: It says in that email. [00:10:28] Speaker 04: So under OCA, the employer has a duty to communicate with the employee about other options if the employer indeed found at the time. [00:10:38] Speaker 04: Now, there's no evidence in the record that... Well, under OCA and... [00:10:41] Speaker 00: similar to Casey's we're applying the bursting bubble presumption kind of theory and at the end of the analysis you have to come forward with evidence of discrimination discriminatory animus I'm talking about their reassignment here is that another full-time employee could work in the time frame brought to you meetings but she was two hours [00:11:06] Speaker 00: It's being terminated again. [00:11:07] Speaker 00: If it's recognized in two hours, it makes it very difficult. [00:11:10] Speaker 00: It's not impossible. [00:11:10] Speaker 00: That being brought to me. [00:11:13] Speaker 04: Is that your best? [00:11:17] Speaker 04: This is the failure to accommodate claim. [00:11:19] Speaker 04: It's not a disparate treatment claim. [00:11:21] Speaker 04: This is provided as an ACA. [00:11:23] Speaker 00: I understand that, but the same analysis would seem applicable, would it not? [00:11:27] Speaker 00: You have to come forward with some kind of animus that the causative factor contemplated by the statute is, in fact, the causative factor here. [00:11:36] Speaker 04: I'm sorry, Your Honor, I did not hear you. [00:11:38] Speaker 00: I understand that this is a different statute than the one leveled in ACCA. [00:11:44] Speaker 00: It's not the same facts, rather, as the ones leveled in ACCA, but would it not be the same analysis? [00:11:51] Speaker 04: Well, there was a dis-retreatment part of ACCA, but there was also a failure to reassign section of ACCA. [00:11:58] Speaker 04: And in that section, that was a failure to reassign in a failure to accommodate claim. [00:12:04] Speaker 04: And the court specifically said that the employer has a duty to communicate the options to the employee for reassignment if the employer thinks that the employee cannot do the essential functions of the job. [00:12:16] Speaker 04: I'd like to add that at the time, nobody's here for impromptu meetings. [00:12:20] Speaker 04: These are reasons that were brought up in litigation. [00:12:24] Speaker 04: There is also a responsibility for the employer to communicate with the employer if it thinks that there is a problem with the employee's request. [00:12:34] Speaker 04: to communicate that problem at the time. [00:12:36] Speaker 03: Where in the record is this email where a supervisor says that there's meaningful work that she can do that doesn't require meetings? [00:12:46] Speaker 04: Okay, so there's the record page 127 is where the supervisor responded to her saying that she could do two hours work a day and that he said that she could do meaningful work which in his deposition [00:13:01] Speaker 04: he explained meant work at her level, capacity, and experience that was equally significant to what she had done before. [00:13:10] Speaker 04: That's Schlendorf in May. [00:13:13] Speaker 04: Yes. [00:13:14] Speaker 04: And then in October, on October 5th, on page 1622, you see a description of the [00:13:25] Speaker 04: the job that was available for Ms. [00:13:27] Speaker 04: Reagan-Diaz in the corporate policy office, and it says that at the top, as most of the preference management unit work is collaborative and meeting intensive, [00:13:37] Speaker 04: They're not going to assign her to that part of the RPO, the Resource Planning Office, but they identified reassignment to the Corporate Policy Office where she could work, do policy manager functions, work on Sentinel, and this was on two hours a day, which you'll see on page 1623 is where it's specifically in writing that she was going to be coming back two hours a day at that point when they identified the CPO assignment. [00:14:05] Speaker 04: This is what was communicated to her at the time. [00:14:07] Speaker 04: Nobody said, oh, we need you here for impromptu meetings. [00:14:11] Speaker 04: That was something that came up in litigation, and it comes from Miss Reagan Diaz's testimony when she was describing what she had done at a particular stage of the Sentinel Project before she was injured. [00:14:21] Speaker 04: Yes, that stage required impromptu meetings, but in the time period that's relevant under Minter, [00:14:27] Speaker 04: The FBI had projects at Ms. [00:14:31] Speaker 04: Reagan DS level that the supervisor said she could do on a two-hour day schedule. [00:14:36] Speaker 04: Nobody said there was a problem about impromptu meetings. [00:14:39] Speaker 04: And there's extensive evidence that this sentinel project, and in fact, [00:14:44] Speaker 04: 1622, the same email, explains that the work that Ms. [00:14:49] Speaker 04: Regan Diaz had been doing before is no longer necessary because central appointment has been completed. [00:14:54] Speaker 04: So at that point, the project she had done before, which she testified about in her deposition as requiring impromptu meetings, were no longer happening. [00:15:05] Speaker 04: and the jury could infer that, in fact, impromptu meetings were no longer necessary, that the judge got confused and thought that what Ms. [00:15:13] Speaker 04: Reagan-Diaz had been doing before, her projects were the nature of her position, but they weren't the nature of her actual position. [00:15:20] Speaker 04: Her position is a project-based position, as described by Schlendorf, where the projects were changing all the time. [00:15:26] Speaker 03: Can I just make sure I understand your theory of injury here? [00:15:35] Speaker 03: theory of injury, let's suppose we were to agree with you. [00:15:39] Speaker 04: Oh, how was Ms. [00:15:41] Speaker 04: Reagan Diaz harmed by being kept out of the workplace for over a year? [00:15:45] Speaker 04: That was she was harmed professionally, economically, and emotionally. [00:15:51] Speaker 04: She's a very outstanding employee. [00:15:55] Speaker 04: She loves her job. [00:15:56] Speaker 04: She wanted to work. [00:15:58] Speaker 04: She wanted to get back on the team, as Shalindorf said in 127. [00:16:01] Speaker 04: We're excited to get you back on the team. [00:16:04] Speaker 04: In other documents, he said, we can't wait to have you back in any capacity. [00:16:08] Speaker 04: She was a great employee that he knew was a great employee. [00:16:11] Speaker 04: He wanted her back on the team. [00:16:13] Speaker 04: She wanted to be back on the team. [00:16:15] Speaker 04: There was an emotional harm to being excluded during that time. [00:16:18] Speaker 04: She's also a professional. [00:16:20] Speaker 04: highly accomplished person. [00:16:22] Speaker 04: She did not want to be sitting at home taking workers' compensation payments for that year. [00:16:27] Speaker 04: She wanted to be back in the workplace. [00:16:29] Speaker 04: And there's an economic loss as well. [00:16:30] Speaker 04: It also affected her step increase to this day. [00:16:32] Speaker 04: She's still affected by that because it was delayed by several months while she was out. [00:16:42] Speaker 02: Did she ever seek reassignment? [00:16:47] Speaker 04: She did not, she was not told about that October email, the available assignment and the CPO, and nobody told her that she was not able to do her essential functions. [00:17:00] Speaker 04: So under the regulations for the Rehab Back, the way it works in the federal government, is if you can't do your essential functions, then the accommodation of last resort is a reassignment. [00:17:09] Speaker 04: But nobody said to her, we think you can't do your essential functions. [00:17:12] Speaker 04: What they said was, we would love to have you back in any capacity. [00:17:15] Speaker 04: It was just that management in HR, workers' comp, and the reasonable accommodations office, they were getting confused, as they've now admitted, basically, that they got the law wrong, thought that workers' comp didn't allow a return when actually the FECA did allow the very return. [00:17:36] Speaker 04: Ms. [00:17:36] Speaker 04: Reagan Diaz was only being asked to, she was only asking to be paid for the work that she was going to do two hours a day. [00:17:45] Speaker 04: and the FICA allows that, but that statute was miscited by the FBI, confused the judge, and the judge ended up using the very provision of the FICA that would allow what Ms. [00:17:57] Speaker 04: Reagan-Diaz was asking to do was held, in this opinion, as a bar to her coming back to work on page of the record. [00:18:09] Speaker 02: It just seems that most of the exchanges [00:18:14] Speaker 02: over the course of 2012 from early in the year until October are about whether she can come back to her existing job at two hours per day. [00:18:25] Speaker 02: And she explicitly says, I can't commit to that because I can't meet all these deadlines. [00:18:32] Speaker 04: Well, okay, so I see what you're asking. [00:18:36] Speaker 04: She didn't explicitly say I'm seeking a reassignment, but again, the employer, if the employer thinks that you can't do your central functions, the employer is supposed to move to the next step, give you accommodation of last resort, but she didn't. [00:18:52] Speaker 02: She has to prove that she's qualified with an accommodation to do the essential functions of a job. [00:19:00] Speaker 02: So it seems like they're pretty different theories. [00:19:02] Speaker 02: One is she could come back to her existing job and perform at two hours per day. [00:19:09] Speaker 02: And a very different one, it's a very different one to say, well, maybe I can't do that job, but you have to find me a different job. [00:19:17] Speaker 04: Well, this very issue was addressed in the ACA opinion, on-block opinion of the D.C. [00:19:23] Speaker 04: Circuit. [00:19:25] Speaker 04: The D.C. [00:19:25] Speaker 04: Circuit explicitly ruled that when you are not qualified to do your current job, that the employer has a responsibility to consider a reassignment in another job. [00:19:38] Speaker 02: I understand, but I'm focused on preservation, right? [00:19:42] Speaker 02: She can only raise here the claims she pressed below. [00:19:46] Speaker 04: Well, what the D.C. [00:19:47] Speaker 04: Circuit said was the employee, and this is in a footnote 27 of ACA, the employee is not required to be a detective to find the alternate, to find a vacancy if there is such a vacancy. [00:20:02] Speaker 04: So here, Ms. [00:20:04] Speaker 04: Reagan-Diaz didn't, first of all, couldn't read the minds of [00:20:09] Speaker 04: the FBI in terms of what it was going to say in litigation four years later, she couldn't, she had no, nobody said to her you can't do the essential functions, so she wouldn't have known to ask for a reassignment. [00:20:21] Speaker 04: But in addition to that, she didn't know that the corporate policy office assignment, which actually is technically not a reassignment, that would have been just assigning her something different within her own resource planning office. [00:20:35] Speaker 04: The corporate policy office assignments on 1622 are not technically a reassignment. [00:20:42] Speaker 04: But she did not know about them, so she wouldn't have known to request it. [00:20:48] Speaker 04: And ACA specifically ruled that the employer, if it identifies an assignment or a reassignment, that it's supposed to offer that to the employee. [00:20:59] Speaker 04: The employee is not expected to be a detective to find out if there's a vacancy [00:21:05] Speaker 04: or another assignment that they could do. [00:21:11] Speaker 04: And so the importance of communication is emphasized in the interactive process. [00:21:18] Speaker 04: If the FBI had participated in the interactive process, we would not be here today. [00:21:24] Speaker 04: Schlendorf thought that there was meaningful work that could be done at her level. [00:21:29] Speaker 04: And if the projects had changed, what he testified to in his deposition was that they would have found equally important work that she could do because it was the nature of the department. [00:21:40] Speaker 04: There were projects changing all the time. [00:21:43] Speaker 04: So if there had been an interactive process, Mr. Schlendorf would have [00:21:49] Speaker 04: assigned Ms. [00:21:50] Speaker 04: Reagan-Diaz to the corporate policy office jobs or equally important work. [00:21:56] Speaker 04: If there had been an interactive process, the division would have offered Ms. [00:22:03] Speaker 04: Reagan-Diaz the corporate policy assignment and she could have taken that. [00:22:07] Speaker 03: Let me make sure I understand your position with respect to one of the things that the district court ruled on. [00:22:14] Speaker 03: And that is, with respect to the disability discrimination claim, it ruled that because the plaintiff was receiving FECA workers comp benefits, there needed to be an approved alternative work assignment by the Department of Labor. [00:22:35] Speaker 03: So, ruled that that was a procedure that had to be followed. [00:22:42] Speaker 03: Are you disputing that that is the procedure that had to be followed? [00:22:47] Speaker 04: Yes, I dispute that. [00:22:49] Speaker 04: And Miki has submitted a brief on that issue, that there is nothing in the FECA that would bar an employee from her rights under the Rehabilitation Act, that the district court got the FECA wrong and ignored the 5 USC Section 8116A1. [00:23:12] Speaker 04: which says that an employee can work while receiving FICA benefits, an employee can go back to her agency on a partial schedule and receive compensation from her agency. [00:23:25] Speaker 03: But that doesn't contradict saying that it has to be coordinated with the Department of Labor who's paying the benefits. [00:23:34] Speaker 04: I agree. [00:23:35] Speaker 04: I understand why you're saying that. [00:23:38] Speaker 04: If you look at the district court's decision, [00:23:41] Speaker 04: This is how the district court explained its view on the AWA. [00:23:47] Speaker 04: It said on the record page, [00:23:55] Speaker 04: 1997, the district court miscited that provision, overlooked one, so just cited to A, and thought that said right here in the decision, this is misleading federal agencies right now, it says federal employees may not receive compensation while receiving FECA benefits, saying that it's impossible for a federal employee to work part-time while on FECA, which is the opposite of what FECA actually says. [00:24:22] Speaker 04: Oh 1997 of the record. [00:24:26] Speaker 03: What page of the decision is it? [00:24:30] Speaker 03: There should be a page number at the bottom there. [00:24:35] Speaker 00: Page 25. [00:24:37] Speaker 00: Say again please. [00:24:39] Speaker 04: 25. [00:24:48] Speaker 03: I mean, the language that you just cited about the benefits would have to stop, it's immediately followed by the FBI concluded that they had to coordinate with the Labor Department and get an alternative work assignment. [00:25:03] Speaker 04: So the court assumed that you couldn't go back to work if you're on FECA benefits, but that's contradicted by the next part of the provision. [00:25:14] Speaker 04: And in one, A1, it says, but you can actually go back to work and work and get paid in return for services actually performed for the agency. [00:25:26] Speaker 04: But what the court did was overlooked A1 and just looked at A and then cites here that federal employees may not receive compensation while receiving FECA benefits and then says, [00:25:39] Speaker 04: Thus, FBI concluded that the only option available to the plaintiff was obtaining an AWA. [00:25:44] Speaker 04: So saying that, inferring from its misunderstanding of the statute that the only option was the worker's comp process. [00:25:56] Speaker 04: The Rehabilitation Act does not exclude employees who get disabilities from their work. [00:26:03] Speaker 04: So if you end up in a wheelchair because something fell on you at work, you still have rights to accommodations. [00:26:09] Speaker 03: The employer still has to build a ramp for you to get into the... I understand that, but I don't think that the district court was saying that she had no rights under the Rehabilitation Act because she was getting workers' comp. [00:26:23] Speaker 03: The district court was merely saying that [00:26:26] Speaker 03: there's a process, and the process is that the accommodation is provided through an alternative work assignment. [00:26:35] Speaker 04: Well, so if the alternative work assignment process at that agency allowed for accommodations, then it would work together as the statutes, I think, are designed to work together. [00:26:47] Speaker 04: But what happened here was the reasonable accommodations office in August of 2012 [00:26:54] Speaker 04: Deferred to the workers comp office refused to process the requests for reasonable accommodations So the workers comp manager said I don't do workers. [00:27:05] Speaker 04: I don't do reasonable accommodations That's what he said to her when she said what I really want fair enough, but there is back and forth [00:27:14] Speaker 02: throughout this time, right? [00:27:15] Speaker 02: She initially says, I want to work at home. [00:27:19] Speaker 02: The FBI comes back and says, we'll take you back at four hours a day. [00:27:24] Speaker 02: She comes back and says, no, I'll come back at two hours a day. [00:27:27] Speaker 02: There's back and forth between your client and Huff. [00:27:36] Speaker 02: Why isn't it just trying to work things out? [00:27:39] Speaker 02: Whatever label you put on it, they're engaged. [00:27:43] Speaker 02: they're trying to work something out, and ultimately the negotiation, as it were, comes to impasse when the FBI says we can't go all the way down to two hours per day. [00:27:56] Speaker 02: And that just tees up a legal question of whether she can go to trial on those [00:28:04] Speaker 02: on those facts. [00:28:06] Speaker 04: Right. [00:28:06] Speaker 04: And I see why you're asking that question. [00:28:08] Speaker 04: On its face, it might look like, oh, there was a back and forth. [00:28:11] Speaker 04: There's an interactive process. [00:28:12] Speaker 04: The problem here is that it wasn't an interactive process, a flexible interactive process under the Rehabilitation Act. [00:28:21] Speaker 04: It was workers' comp manager of the FBI, manager of the FBI, following what he thought, now he turned out to be wrong, what he thought is contrary to Lund, which is the DOL decision, he turned out to be wrong. [00:28:34] Speaker 04: But at the time, he thought, [00:28:37] Speaker 04: is what his testimony is, that he was following the workers' comp procedure. [00:28:41] Speaker 04: What that meant was the flexible interactive process of the Rehabilitation Act, which would take into consideration the division head's views that [00:28:52] Speaker 04: she could return two hours a day and help advance the mission of the FBI, those procedures, the flexible interactive process was ignored because the manager from another part of the FBI said, well, I know I'm here to do reasonable accommodations, but I won't do it because the worker's comp guy won't. [00:29:15] Speaker 02: Right, but you also have Bitco, the direct supervisor, [00:29:20] Speaker 02: and Small, who's the head of her PMU organization, and Huff, who's at least in this general business, though admittedly on the labor side, all saying that with regard to this [00:29:35] Speaker 02: job and its requirements of being at meetings and such, two hours a day just won't work. [00:29:43] Speaker 04: Okay, so nobody said two hours a day wouldn't work to Ms. [00:29:47] Speaker 04: Regan Diaz. [00:29:48] Speaker 04: The only thing she was told was two hours a day will work. [00:29:51] Speaker 02: I'm sorry, she was told it will work? [00:29:55] Speaker 04: It will work. [00:29:56] Speaker 04: That's what Schlundorf, the head of division, told her. [00:29:59] Speaker 04: That email on record 127 was to Ms. [00:30:03] Speaker 04: Reagan Diaz and said, this will work. [00:30:05] Speaker 04: She was ecstatic. [00:30:06] Speaker 04: She thought, oh my gosh, I'm going back to work. [00:30:09] Speaker 04: I'm so excited. [00:30:11] Speaker 04: Two days later, workers' comp comes back and says, no, tell me when you're ready to do four hours, four hours of nothing. [00:30:17] Speaker 04: I won't consider anything less than four hours. [00:30:19] Speaker 04: She said, I really want an accommodation. [00:30:22] Speaker 04: He said, go talk to the reasonable accommodations office. [00:30:25] Speaker 04: You want an accommodation? [00:30:26] Speaker 04: Go talk to them. [00:30:27] Speaker 04: Two months later, reasonable accommodations office says, I won't talk to you because worker's comp guy won't let you in. [00:30:33] Speaker 04: So this is a barrier. [00:30:36] Speaker 04: This is a barrier. [00:30:37] Speaker 04: They're not removing the barrier. [00:30:39] Speaker 04: But it's not related to... Now, I just want to emphasize that Huff doesn't know anything about resource planning office projects. [00:30:49] Speaker 04: None of what he said is based on the nature of the work, the nature of the position as the district court. [00:30:57] Speaker 04: described. [00:30:58] Speaker 04: So Huff's four hours a day was what he testified to believing the DOL required. [00:31:06] Speaker 04: Small, I'm glad you mentioned Supervisor Small because she's the one who wrote the October... She's the one who says in October that PMU is collaborative [00:31:17] Speaker 02: And meeting intensive, so two hours a day, is just not going to work in PMU, which takes off the table everything but your claim for a reassignment. [00:31:30] Speaker 04: Well, right, so the PMU actually, Ms. [00:31:33] Speaker 04: Reagan-Diaz was on paper she was assigned to PMU, but most of her work was not even in the PMU. [00:31:38] Speaker 04: So she was in the Resource Planning Office is much higher than that. [00:31:42] Speaker 04: So yes, Ms. [00:31:45] Speaker 04: Small on October 5th says the PMU has too many meetings, but because of that, they found other work in the same Resource Planning Office that Ms. [00:31:54] Speaker 04: Reagan-Diaz could do. [00:31:55] Speaker 04: So this is not an accommodation of last resort. [00:31:59] Speaker 04: At this point, it's in the same office. [00:32:03] Speaker 04: This is showing that she can do policy manager work. [00:32:06] Speaker 04: She'd be doing work, it says, generally handled by highly graded employees such as Sharon. [00:32:11] Speaker 04: So she would be doing the exact same work as her management program analyst position. [00:32:17] Speaker 04: It just would be in the corporate policy office, which was another office in the same division. [00:32:24] Speaker 03: If you have any concluding thoughts, we'll give you a little bit of time on rebuttal, but if you could make any concluding arguments. [00:32:43] Speaker 04: In ignoring the fact that a non-disabled employee was able to do sentinel work one to two hours a day and instead inferring that sentinel work would always require a full-time schedule, the district court ignored critical evidence in the non-moving party's favor [00:33:03] Speaker 04: in ignoring the corporate policy office assignment where Ms. [00:33:08] Speaker 04: Reagan-Diaz could work. [00:33:10] Speaker 04: The district court ignored evidence in non-moving parties' favor. [00:33:13] Speaker 04: The district court also ignored extensive testimony of Schlendorf saying that Ms. [00:33:20] Speaker 04: Reagan-Diaz could do the essential functions of her job and that it would help the department [00:33:25] Speaker 04: and ignored what the contemporaneous statements of the department were at the time, which a jury could infer that an employer would mention some of these issues at the time if these really were essential functions. [00:33:44] Speaker 04: and ignoring that inference that the jury could draw and instead relying on its own inference, the district court inferred from pre-disability projects that that's the nature of her position, in ignoring the contrary evidence to its [00:34:00] Speaker 04: own inference the district court aired under well-celled law and Toland Supreme Court recently reminded the Fifth Circuit that summary judgment, there's been no trial in this case, summary judgment was inappropriate on this basis. [00:34:17] Speaker 03: Thank you. [00:34:23] Speaker 01: All right, Mr. Kolsky. [00:34:25] Speaker 01: Thank you, Your Honor. [00:34:27] Speaker 01: Good morning. [00:34:28] Speaker 01: May it please the Court. [00:34:29] Speaker 01: I'm Joshua Kolsky. [00:34:33] Speaker 01: Good morning. [00:34:33] Speaker 01: May it please the Court. [00:34:34] Speaker 01: Joshua Kolsky on behalf of the appellee. [00:34:37] Speaker 01: I'd like to start by addressing one of the arguments Ms. [00:34:40] Speaker 01: Carlton made that another colleague was able to do, allegedly able to do, Ms. [00:34:46] Speaker 01: Reagan-Diaz's work in one to two hours per day after she went on medical leave. [00:34:50] Speaker 01: And she's referring to [00:34:52] Speaker 01: work that was done by Elizabeth Stoddard. [00:34:54] Speaker 01: Now it's true that Ms. [00:34:55] Speaker 01: Stoddard took over some of Ms. [00:34:58] Speaker 01: Reagan-Diaz's sentinel duties, but so did a number of other employees. [00:35:02] Speaker 01: So it's not that Ms. [00:35:03] Speaker 01: Stoddard was doing all of Ms. [00:35:07] Speaker 01: Reagan-Diaz's job responsibilities in one to two hours a day. [00:35:10] Speaker 01: And we address this on page 28 of our brief [00:35:13] Speaker 01: Gordon Bitco took over some Sentinel responsibilities. [00:35:16] Speaker 01: Jonathan Russell did. [00:35:18] Speaker 01: Some contractors took over responsibilities. [00:35:20] Speaker 01: And in fact, in plaintiff's opening brief, she acknowledges, while Ms. [00:35:26] Speaker 01: Reagan-Diaz was on medical leave, her projects were divided among more than four employees. [00:35:31] Speaker 01: That's page 32 of her brief. [00:35:33] Speaker 01: So it's not correct that Ms. [00:35:36] Speaker 01: Stoddard was able to do Ms. [00:35:37] Speaker 01: Reagan-Diaz's job in one to two hours a day. [00:35:41] Speaker 01: There was also a lot of discussion about whether reassignment was necessary here and whether this corporate policy office assignment was a required reassignment for the plaintiff. [00:35:58] Speaker 01: It was a project. [00:35:59] Speaker 01: It was not a position. [00:36:01] Speaker 01: Reassignment is maybe a reasonable accommodation when there is a vacant position. [00:36:10] Speaker 01: There was no vacant position here. [00:36:11] Speaker 01: This was a project that they were looking at to try to find [00:36:18] Speaker 01: see if there was something she could do on two hours per day. [00:36:20] Speaker 01: There was never any suggestion that she'd be fulfilling her essential job functions. [00:36:27] Speaker 01: That was not a position that was available. [00:36:34] Speaker 03: So what's the import of that argument that you're making that if they believe that [00:36:43] Speaker 03: that there is some meaningful project that she can do and work on even if that project is going to, you know, have some sort of finite duration that [00:37:01] Speaker 03: they don't have to offer that to her as a reasonable accommodation if that can be done in the two hour per day window that she can work? [00:37:11] Speaker 01: That's correct. [00:37:12] Speaker 01: Where the essential functions of her job require eight, nine, ten hours a day of work, it's not a reasonable accommodation to have her work two hours per day on a particular project. [00:37:29] Speaker 01: That's not what her job required. [00:37:30] Speaker 01: And I think [00:37:31] Speaker 01: there's a disconnect in some plaintiff's arguments between the idea of fulfilling essential job functions and performing meaningful work. [00:37:42] Speaker 03: So let me make sure I understand your argument and the implications of it. [00:37:46] Speaker 03: So let's suppose, just to make this easy, that there were five different things that she worked on before she was hurt. [00:37:56] Speaker 03: And they are able to find four people to take four of those things. [00:38:03] Speaker 03: So they divvy those up to four people. [00:38:06] Speaker 03: But there's nobody with any availability to do the fifth thing. [00:38:10] Speaker 03: And so she comes and she says, I can do item number five. [00:38:17] Speaker 03: And I can do that in the two hour window. [00:38:22] Speaker 03: then you're saying that there's no obligation to allow her to do that because [00:38:36] Speaker 03: she's still not demonstrating that she can perform the essential functions of her job. [00:38:42] Speaker 01: That's correct, Your Honor. [00:38:43] Speaker 01: To be qualified, an employee has to be able to perform all of the essential functions of their job, not merely some of the essential functions or one of the essential functions. [00:38:54] Speaker 03: So the law is supposed to make some sense. [00:39:01] Speaker 03: How does that resolution make any sense? [00:39:07] Speaker 01: I think that in these sorts of situations, an employer certainly has the option to waive essential functions. [00:39:22] Speaker 01: They can allow somebody to come back to work two hours per day, but that doesn't mean that the person is fulfilling the essential functions of their job. [00:39:34] Speaker 01: That could have been something that the FBI could have done here if they'd wanted to. [00:39:40] Speaker 01: If her job required full-time work, collaboration with employees throughout the day, then not performing those functions means she's not doing her job. [00:39:55] Speaker 01: An employer doesn't have to fundamentally reconceive a position. [00:40:00] Speaker 03: So your argument is that if those five tasks were the essential functions of her job, [00:40:08] Speaker 03: then allowing her to come back and do one of the five [00:40:12] Speaker 03: She's essentially asking for an accommodation that changes the essential functions of her job. [00:40:18] Speaker 03: It doesn't matter. [00:40:20] Speaker 03: It's immaterial for Rehabilitation Act purposes that they could find, you know, for other people to cover those other essential functions. [00:40:31] Speaker 03: The question as to whether she's a qualified individual is whether she could do all five. [00:40:36] Speaker 01: That's correct, Your Honor. [00:40:38] Speaker 03: So legally, you've got an argument, but it might not make common sense. [00:40:43] Speaker 01: In some situations, it may be to the benefit of the employer to have someone come back part time, even if they're not fulfilling all of their essential job functions. [00:40:57] Speaker 01: But there are also reasons why that might not [00:41:03] Speaker 01: In fact, there is evidence in the record about the significant management challenges that would result from having to supervise someone on a two-hour-per-day schedule. [00:41:15] Speaker 01: Finding work that can be done on that very short amount of time, that presents a significant burden to management. [00:41:27] Speaker 01: It's a judgment call for an employer to decide is it worth bringing in one person for two hours a day to get that amount of work from them if it means having managers have to spend a significant amount of time looking around finding what work can we give this person. [00:41:46] Speaker 01: That's a judgment call for the employer. [00:41:48] Speaker 01: And in some cases, the employer may decide, why don't we bring this person in for a couple hours? [00:41:53] Speaker 01: But it's not required by the Rehabilitation Act. [00:41:55] Speaker 00: And in the ACA case, which was cited by your opposing counsel, we've said we're not a super employment board or personnel board. [00:42:04] Speaker 01: That's correct, Your Honor. [00:42:06] Speaker 02: You make a pretty powerful case on the facts that this job really required someone to be there all or most of the time. [00:42:19] Speaker 02: But why shouldn't we look a little bit skeptically on that? [00:42:24] Speaker 02: because the FBI did, in fact, offer to take her back at four hours a day, which seems a little bit hard to reconcile with this idea that she has to be on call at any given time for any huge classified meeting that might pop up on a moment's notice. [00:42:44] Speaker 01: Well, the FBI was looking for ways to accommodate the plaintiff throughout this process. [00:42:53] Speaker 01: And it did consider, and there is evidence that it was considering projects that she could perform on a two hour a day basis. [00:43:03] Speaker 01: And as your honor points out, they did ultimately bring her back four hours a day. [00:43:08] Speaker 01: They were trying to keep this employee happy and they were trying to accommodate her. [00:43:12] Speaker 01: But by doing that, they weren't conceding that she would be performing the essential functions of her job on a part-time schedule. [00:43:21] Speaker 01: We're not saying it's impossible for her to accomplish something in four hours or two hours. [00:43:29] Speaker 01: Certainly, she could do something during that timeframe, but that doesn't mean that's not what performing one's essential job functions requires. [00:43:42] Speaker 01: The evidence is that it's necessary to work 8, 9, 10 hours a day in order to be as effective as the FBI has a right to expect of its employee in that position. [00:43:55] Speaker 01: So I think there's a difference between performing essential job functions and being there making a contribution. [00:44:04] Speaker 01: What's required by the Rehabilitation Act is the performance of essential job functions. [00:44:10] Speaker 01: Turning to the claims based on the denial of the 2012 Director's Award, those claims in my view are similar to a lot of non-selection or non-promotion claims that we see a lot of in this circuit. [00:44:26] Speaker 01: And typically in those claims, the plaintiff will try to show a disparity in qualifications. [00:44:32] Speaker 01: They'll say, you know, my qualifications [00:44:35] Speaker 01: We're so far above the qualifications of the selectee that you can infer discrimination or retaliation. [00:44:42] Speaker 01: And there's nothing like that here. [00:44:43] Speaker 01: There's no comparison between Mr. Reagan-Diaz's contributions to Sentinel and the contributions of those selected for the Director's Award. [00:44:54] Speaker 01: You can say that she's arguing that her contributions were roughly equivalent to some of the recipients, but that's not sufficient to show any pretext or an inference of discrimination or retaliation. [00:45:08] Speaker 01: In fact, she agrees that each of the recipients that she knows, which is 12 of the 15, they worked hard and they made a significant contribution to Sentinel. [00:45:18] Speaker 03: She, doesn't she argue though that one of the grounds, or that the explanation that's given, the legitimate non-discriminatory reason that's given, was in part that she was, mostly her role was as a conduit. [00:45:38] Speaker 03: in the Sentinel Project, and doesn't she identify other people who were also described as conduits? [00:45:46] Speaker 03: There were. [00:45:47] Speaker 03: Who got the award, including, I guess it's McDougall and Martin. [00:45:59] Speaker 03: If that's the case, then one could arguably infer falsity from that, and then there'd be a question as to whether it would rise to the level [00:46:14] Speaker 03: the circumstances would rise to the level to determine whether there's a jury question. [00:46:22] Speaker 01: So her role as a liaison was, I believe that was one of the reasons given for why her contributions were not as significant as some of the other people, but there were [00:46:37] Speaker 01: The reality is there are a number of factors that go into these sorts of decisions. [00:46:42] Speaker 01: And yes, it's true that I think one or two other recipients also worked as liaisons, but everyone had different contributions. [00:46:51] Speaker 01: And so you have to look at the totality of factors. [00:46:55] Speaker 01: It's also true that Ms. [00:46:58] Speaker 01: Reagan-Diaz did not participate in the project during one of the most critical phases, which was the deployment phase. [00:47:05] Speaker 01: And she testified at her deposition that the deployment phase is an important part of the project. [00:47:12] Speaker 01: There's also deposition testimony from another witness that it's the most critical phase. [00:47:18] Speaker 01: taking into account the various contributions of all of these different people, the managers reasonably concluded that the 15 who were selected made the most significant contributions. [00:47:33] Speaker 03: At the time that there was like some sort of a preliminary list of people who would be nominated, I think that was in a March time period, and she was on that list, right? [00:47:45] Speaker 01: She was on a list in, I believe it was created in January, February 2012 time frame. [00:47:51] Speaker 01: It was created for a different award. [00:47:53] Speaker 01: It was a 2012 Attorney General's Award. [00:47:57] Speaker 03: And she was on that list, you're correct. [00:48:01] Speaker 03: Not the Director's Award. [00:48:03] Speaker 01: Correct. [00:48:03] Speaker 01: So the Director's Award, the list or the nominees for that award was based on that earlier list for the Attorney General's Award. [00:48:15] Speaker 01: They took that list. [00:48:16] Speaker 01: It was months later. [00:48:18] Speaker 01: It was, I think, May to June timeframe. [00:48:21] Speaker 01: And they looked at the project, including the fact that a lot of significant work had occurred in those intervening months. [00:48:28] Speaker 01: And they made adjustments. [00:48:30] Speaker 01: She was not the only person who was removed from the earlier list. [00:48:34] Speaker 01: Timothy Bell was also removed. [00:48:36] Speaker 01: He is non-disabled. [00:48:38] Speaker 01: does not have prior protective activity. [00:48:41] Speaker 01: So they made adjustments based on the additional time period of work, including this significant work towards the deployment and made adjustments on that basis. [00:48:53] Speaker 02: For the Attorney General Award. [00:48:55] Speaker 01: For the 2012 Director's Award. [00:48:58] Speaker 01: So there's sort of three awards at issue. [00:49:03] Speaker 02: So she was on the Director's preliminary list. [00:49:07] Speaker 02: She was removed. [00:49:09] Speaker 01: I just want to be precise about this. [00:49:12] Speaker 01: The first list was for the 2012 Attorneys General Award, which there's no claim based on that award. [00:49:18] Speaker 01: They took that list when they developed the list for the 2012 Directors Award. [00:49:23] Speaker 01: They first took that list and they made modifications. [00:49:26] Speaker 02: And made cuts. [00:49:27] Speaker 02: Correct. [00:49:28] Speaker 02: But you still have, as to the director's award, you have the testimony from the decision makers that when they made their recommendation, they didn't know that she had engaged in protected activity. [00:49:42] Speaker 01: That's correct. [00:49:43] Speaker 02: With regard to that award. [00:49:44] Speaker 01: Correct. [00:49:45] Speaker 01: And yeah, we made that argument in the district court. [00:49:48] Speaker 01: District court didn't rule on that issue, but the evidence does reflect that they did not know about her prior protected activity at that point. [00:49:57] Speaker 03: All right. [00:49:57] Speaker 01: Thank you. [00:49:58] Speaker 01: Okay. [00:49:58] Speaker 01: We would just ask the court to affirm the decision below. [00:50:01] Speaker 01: Thank you. [00:50:02] Speaker 03: All right. [00:50:04] Speaker 03: So, Ms. [00:50:06] Speaker 03: Carlton, you've expired all your time. [00:50:09] Speaker 03: We'll give you two minutes for rebuttal. [00:50:16] Speaker 04: I think the critical question is that this is a jury question at this juncture. [00:50:22] Speaker 04: The corporate policy office assignment that was specifically identified as something that Ms. [00:50:29] Speaker 04: Reagan-Diaz could do, a jury could look at that and see that Ms. [00:50:33] Speaker 04: Reagan-Diaz was able to do her actual functions. [00:50:36] Speaker 04: Schedule is not a function unless there's something functional about the schedule. [00:50:41] Speaker 04: And so, for example, an airline pilot would have to be in the air for the full eight hours. [00:50:46] Speaker 04: But here, Ms. [00:50:47] Speaker 04: Reagan-Diaz could do all of her functions during the time that she was working, as this document on record 1622 reflects. [00:50:56] Speaker 04: And a jury could, because a jury could find that, this case needs to go to trial. [00:51:01] Speaker 04: It's true that courts have said that judges are not to act as a super personnel department. [00:51:07] Speaker 04: Well, here, [00:51:09] Speaker 04: there is significance a jury could find to the fact that the highest level of division management wanted this employee back, thought that this employee could do her central functions as a jury could find his testimony to mean when he said that she could work at her level two hours a day. [00:51:27] Speaker 04: That's what management thought at the time and it put in writing at the time and so a jury could find [00:51:35] Speaker 04: that what management thought here reflects that Ms. [00:51:38] Speaker 04: Reagan-Diaz was able to do her essential functions. [00:51:41] Speaker 00: What is the page reference for the highest level? [00:51:46] Speaker 04: Again, it's been too hard to know. [00:51:51] Speaker 04: 127. [00:51:52] Speaker 04: And what is very important, which is the part that the district court left out of the decision, is that Mr. Schlendorf testified [00:52:01] Speaker 04: and explained what he meant by meaningful work on a two-hour day schedule on page 1114 of the record and to 1115, 1115, [00:52:16] Speaker 04: Mr. Schlendorf explained what he meant by meaningful work and that was work that was commensurate with a great experience and abilities and that would be equally impactful and important work. [00:52:29] Speaker 04: She could do that on a two-hour day schedule. [00:52:30] Speaker 04: A jury could find that she was capable of doing her essential functions as the management [00:52:35] Speaker 04: Instead, grant a summary judgment based on somebody who wasn't in supervising that very department who just was confused, honestly or not, but who was confused about the DOL's requirements. [00:52:51] Speaker 04: Granting central re-judgment on that actually is getting in the way of what management thought would be good for the agency if what they put in writing would advance the admission of the FBI. [00:53:01] Speaker 04: I think a jury would look at that and find that Ms. [00:53:04] Speaker 04: Reagan Diaz could do her essential functions and that the FBI had an obligation to accommodate her and provide access to the federal workplace and be a model employer as the Rehab Act instructs it to be. [00:53:17] Speaker 03: Thank you. [00:53:19] Speaker 03: We'll take the case under advisement.