[00:00:01] Speaker 03: Case number 18-3284, Cassandra M. Minokin of Esquire, appellant versus Janet Dillon. [00:00:08] Speaker 03: Ms. [00:00:08] Speaker 03: Minokin for the appellant, Mr. Walker for the appellate. [00:00:19] Speaker 02: Good morning, Your Honor. [00:00:23] Speaker 02: My name is Cassandra Minokin. [00:00:24] Speaker 02: Excuse my voice, I'm losing it at the moment. [00:00:29] Speaker 02: My name is Cassandra Minokian. [00:00:30] Speaker 02: I'm the plaintiff of parents in this case. [00:00:36] Speaker 02: It's a fairly complicated case. [00:00:39] Speaker 02: It's an employment case. [00:00:41] Speaker 02: It's complicated in large part because it's against the EEOC. [00:00:49] Speaker 02: And EEOC is essentially the administrative court of last resort when it comes to adjudicating [00:00:57] Speaker 02: claims filed by federal employees against their agencies. [00:01:04] Speaker 02: The amended complaint asserts claims under Title VII and the Rehabilitation Act. [00:01:11] Speaker 02: The claims emanate from a decision the EEOC made about 20 years ago to create what I've characterized as an abusive link between my EEOC employment [00:01:25] Speaker 02: in my Title VII protected activity against the Office of Personnel Management. [00:01:32] Speaker 02: There came a point when the link became untenable. [00:01:37] Speaker 02: It took about, well, it was untenable for a long time. [00:01:41] Speaker 02: It took about 10 years for me to speak up about it. [00:01:45] Speaker 02: And once I did, the link became inextricably [00:01:52] Speaker 02: intertwined with rights protected by the Rehabilitation Act. [00:01:57] Speaker 02: The case is on appeal because the district court dismissed the action at the pleading stage. [00:02:03] Speaker 02: I am still struggling to understand the court's reasoning and whether the ruling involved Rule 56, summary judgment, or not. [00:02:15] Speaker 02: I settled on not. [00:02:19] Speaker 02: because the last page of the first opinion says that the complaint is dismissed for failure of the state of claim. [00:02:27] Speaker 02: So I didn't focus on rule 56. [00:02:33] Speaker 00: Well, the order also makes clear that you had an opportunity to amend your complaint. [00:02:37] Speaker 00: That wouldn't be the case if the court were dismissing the case with prejudice on the summary judgment stage. [00:02:45] Speaker 02: That's true. [00:02:45] Speaker 02: Only the Title VII claim was [00:02:49] Speaker 02: dismissed without prejudice. [00:02:53] Speaker 02: But the Rehabilitation Act claim was dismissed with prejudice. [00:02:59] Speaker 02: And there was no way that I could figure out to amend the complaint, to separate out the hostile activity that violated the Rehabilitation Act. [00:03:17] Speaker 02: The district court seemed pretty convinced that there was no way to add any facts or do anything that could save the Rehabilitation Act claim. [00:03:31] Speaker 02: I made the decision not to amend it, just the Title VII claim, because I'd be back on appeal maybe a couple of years later. [00:03:44] Speaker 02: dealing with the Rehabilitation Act issues. [00:03:46] Speaker 02: And there's really no way to separate the hostile work environment claim under Title VII from the Rehabilitation Act claim. [00:03:56] Speaker 02: And it seemed more efficient to bring both claims here on appeal, because I maintain that the complaint is sufficient, alleges sufficient facts to state a plausible [00:04:14] Speaker 02: hostile work environment, retaliatory hostile work environment under Title VII, especially if you factor into the equation the activity, the hostile activity that also violated the Rehabilitation Act. [00:04:30] Speaker 02: So I'm analyzing it and presenting this appeal under the understanding that [00:04:41] Speaker 02: The action was dismissed on December 12, 1906. [00:04:43] Speaker 00: All right. [00:04:44] Speaker 00: I think it would be helpful for you to focus, hone in on where you think the district court made an error of law. [00:04:51] Speaker 02: That was the next point. [00:04:56] Speaker 02: There's no way to read the court's decision without appreciating that the district court did not draw inferences from the factual assertions in the amended complaint. [00:05:11] Speaker 02: There were no inferences drawn in favor of the claim. [00:05:14] Speaker 02: All of the inferences were drawn in favor of EEOC. [00:05:21] Speaker 02: And that's the focus I have made in my brief. [00:05:26] Speaker 02: But as I was preparing for this argument, I realized that the district court's error was really more fundamental than the inferences that it drew. [00:05:37] Speaker 02: If you look at the background section, [00:05:41] Speaker 02: in the first decision, the facts are drawn as much from EEOC's brief and cases involving OPM as they're drawn from the amended complaint. [00:06:00] Speaker 02: I didn't count. [00:06:01] Speaker 02: I should have counted. [00:06:02] Speaker 02: But it seems to me that for the proper approach to analyze [00:06:09] Speaker 02: complaint under 12B6 is to focus on the allegations of complaint. [00:06:14] Speaker 02: You'll see citations to paragraphs in the complaint. [00:06:20] Speaker 02: But then there are huge gaps in the narrative where the district court seems to fill the gap with something that comes from the motion to dismiss or something that comes from a decision that the court issued in an OPM case. [00:06:39] Speaker 02: And that's where I think the judge went off the rails, frankly, because when you look at the background that is presented in the decision, it creates a narrative that is kind of off-center from the narrative that's laid out in the complaint. [00:07:03] Speaker 02: So I really think what I'm urging this court to do, because there were errors in the [00:07:09] Speaker 02: factual errors in the court's background section, in any event. [00:07:17] Speaker 02: But the approach is to look at the complaint. [00:07:19] Speaker 03: Can I ask you, in that regard, you say that you ask for accommodations, in addition to the six-month leave, you would ask for other things like reassignment. [00:07:35] Speaker 03: So when did you first [00:07:37] Speaker 03: When and where in the record did you first request reassignment? [00:07:44] Speaker 02: In January of 2012. [00:07:46] Speaker 02: Does the record show that or your complaint alleges it? [00:07:48] Speaker 02: The complaint shows that. [00:07:50] Speaker 02: Those paragraphs that describe the efforts I made, the interaction with the Chief Operating Officer, [00:07:58] Speaker 02: The district court seemed not to find any relevance or significance to that at all. [00:08:03] Speaker 03: Well, the district court seemed to rely on this confirmation of requests for reasonable accommodation at JA-68. [00:08:12] Speaker 03: And my first question is, is that something you drafted, or is that something that they drafted after discussions with you? [00:08:21] Speaker 02: That's an interesting question, because I was looking at that last night. [00:08:27] Speaker 02: I did fill out a form, but I looked at that form and it doesn't make sense because it's dated September 11th and it makes reference to a previously submitted September 25th letter. [00:08:41] Speaker 03: Well, sometimes I think EEO personnel fill out these reforms to document a request they received from somebody, but I just wasn't sure if this was the form you had filled out or whether maybe this is something they filled out after. [00:08:54] Speaker 02: As I stand here today, when I looked at this last night, the form made no sense. [00:09:00] Speaker 02: In every other document in the record where you see a reference to my issues with ongoing litigation, it's in the context of pending OPM appeals. [00:09:17] Speaker 02: That form talks about discrimination cases. [00:09:21] Speaker 02: And that's not usually how I even [00:09:24] Speaker 02: characterize that issue. [00:09:25] Speaker 02: My issue, and in the September 25th letter that's incorporated by reference in that form, makes it very clear that what made my job harder than it ever needed to be was being required to work alongside individuals who were handling my OPM appeals. [00:09:50] Speaker 02: They were adjudicating the OPM appeals. [00:09:52] Speaker 02: So I would be in a meeting on some policy issue having a debate, a disagreement, and the person sitting across the table for me is responsible for adjudicating my OPM appeals. [00:10:06] Speaker 02: It was impossible to go on like that. [00:10:11] Speaker 02: I did go on like that for about 10 years, but then I just couldn't anymore. [00:10:14] Speaker 03: Now, you argue and you raise an interference claim. [00:10:21] Speaker 03: argue about the delay between, I guess, September and November of 2011 when they then made the offer to you, or I'm sorry, 2012, when they made what they call, I guess, a settlement offer to you? [00:10:42] Speaker 03: OK, two points. [00:10:44] Speaker 03: I'm trying to make sure I understand. [00:10:46] Speaker 03: What was the delay you suffered, and how did it prejudice you? [00:10:49] Speaker 03: Explain to me in more detail exactly what your interference, the harm from your interference claim is. [00:10:55] Speaker 02: Okay. [00:10:56] Speaker 02: The interference claim, none of the claims, as the complaint is laid out, puts every fact into a box. [00:11:08] Speaker 02: At the end of the complaint where I state the causes of action, I say I incorporate all the facts as [00:11:16] Speaker 02: as appropriate or as relevant or whatever, because there are so many facts that are implicated in different boxes. [00:11:24] Speaker 03: One of the things I understood you to allege, because I don't want to have time to go through everything in your complaint right now. [00:11:29] Speaker 03: We've all read it. [00:11:33] Speaker 03: The September, your complaint about delay that was occasioned, you put in a reasonable accommodation request, and then your argument, as I understand it, is it was delayed while they were trying to work out this [00:11:45] Speaker 03: so-called settlement thing where they would give you your leave as long as you waived liability claims against them. [00:11:51] Speaker 03: And my understanding was your interference claim was that the delay in processing your reasonable accommodation. [00:11:58] Speaker 03: Am I wrong about that? [00:11:59] Speaker 02: No, you're not wrong. [00:12:00] Speaker 02: There was a delay. [00:12:02] Speaker 02: At the time, I didn't know the reason for the delay. [00:12:06] Speaker 02: That's fine. [00:12:07] Speaker 03: But my question is, so how were you injured by that delay? [00:12:12] Speaker 02: Well, I mean, that particular fact [00:12:14] Speaker 02: is relevant to the part in the narrative that brings the chief operating officer back into the picture. [00:12:23] Speaker 02: She's the one who stopped HR from processing what I call the formal request for accommodation. [00:12:30] Speaker 02: I had already talked to her months earlier about the same thing. [00:12:36] Speaker 02: She was not forthcoming in providing any kind of accommodation, reassignments. [00:12:42] Speaker 03: Clearly, I was asking for my... My question to you, though, is not to go through all this history again, but simply to tell me how you were... Because it looked like the delay would have been between September and November. [00:12:55] Speaker 02: There was a delay. [00:12:56] Speaker 02: That's true. [00:12:56] Speaker 03: And how was that prejudicial to you? [00:13:00] Speaker 02: What's always prejudicial when you need an accommodation and you don't get it, and you're wondering why, what's going on. [00:13:08] Speaker 02: I had already spent several months with the chief operating officer trying to work something out. [00:13:12] Speaker 02: And the delay was just something that was admitted in the administrative record that the reason for the delay was that the chief operating officer wanted to work something out. [00:13:25] Speaker 02: We weren't settling anything. [00:13:27] Speaker 02: It was a reasonable accommodation request, and she wanted to treat it like it was a claim to be settled. [00:13:35] Speaker 02: She wanted me to give up something. [00:13:37] Speaker 02: in order to get the accommodation. [00:13:39] Speaker 02: And that's where things really broke down. [00:13:41] Speaker 03: OK, thank you. [00:13:42] Speaker 03: We'll hear from the other side now. [00:13:49] Speaker 02: I'm sorry, I did reserve some time. [00:13:51] Speaker 02: We'll give you some time for rebuttal. [00:13:59] Speaker 01: Good morning and may it please the Court. [00:14:00] Speaker 01: Johnny Walker on behalf of the Chair of the Equal Employment Opportunity Commission. [00:14:04] Speaker 01: Judge Wilkins, you asked Ms. [00:14:06] Speaker 01: Menokin to focus in on what were the errors of law in the District Court's opinion. [00:14:10] Speaker 01: We don't believe that she has identified any, either in her appellate briefs or in argument here today. [00:14:16] Speaker 01: In fact, particularly with respect to the reasonable accommodation claim and her contention that the EEOC failed to accommodate her, she [00:14:25] Speaker 01: forfeited those arguments by failing to rebut the government's contentions and its motions to dismiss. [00:14:31] Speaker 01: It's also worth noting that at that point in the proceedings, Ms. [00:14:34] Speaker 01: Minogum was not pro se. [00:14:35] Speaker 01: She was represented by counsel. [00:14:37] Speaker 01: She was represented by counsel from the initiation of the law. [00:14:40] Speaker 03: But she has argued consistently that the district court should not have relied on the request for a reasonable accommodation form exclusively and should have recognized [00:14:55] Speaker 03: that she had made other requests for accommodation as well. [00:15:00] Speaker 03: It's not that she hasn't contested it. [00:15:03] Speaker 03: That argument goes directly to the district court's holding that she hadn't made a reasonable accommodation request and that she wasn't a qualified individual because in the district court's view, she wanted indeterminate leave. [00:15:17] Speaker 03: Everything centers, which she has definitely argued again and again about the district court's reliance on [00:15:24] Speaker 03: this document that I don't think is even referenced in the complaint. [00:15:29] Speaker 01: Well, Your Honor is correct. [00:15:31] Speaker 01: She has asserted that she requested accommodations other than indefinite leave. [00:15:37] Speaker 03: Does your client deny that she requested? [00:15:39] Speaker 03: I mean, your own emails that you attached to this motion to dismiss evidence that she was asking for, looking into transfers as well. [00:15:47] Speaker 03: So you don't deny that she was asking for more than just [00:15:51] Speaker 01: We do, Your Honor. [00:15:52] Speaker 01: Six month leave. [00:15:53] Speaker 01: She clarified in her, it's not in her declaration, but she clarified in her motion to reconsider in the district court below that she requested the alternative processing and reassignment as part of the grievance process that she administered. [00:16:07] Speaker 03: JA128129, which were your documents attached to your motion to dismiss, talk about looking for GS15 positions. [00:16:15] Speaker 03: And her complaint specifically says she asked for other types of accommodations. [00:16:20] Speaker 01: It doesn't indicate that she raised that during the reasonable accommodation process. [00:16:25] Speaker 03: No, no. [00:16:26] Speaker 03: I'm sorry. [00:16:27] Speaker 03: The district court on a motion to dismiss started relying on extra complaint evidence that you had attached to your motion to dismiss. [00:16:39] Speaker 03: And the district court seemed to understand her as only asking for six months of leave or until her claims. [00:16:48] Speaker 03: or process, and now we're asking for other forms of accommodation. [00:16:54] Speaker 03: That's how I read the district court position. [00:16:56] Speaker 03: And I read your arguments as turning on her not being a qualified individual and the request for accommodation not being reasonable because it's sought indeterminate leave. [00:17:07] Speaker 03: Am I correct in that? [00:17:08] Speaker 01: Yes. [00:17:09] Speaker 01: That is our position, and that's supported by the record. [00:17:11] Speaker 03: First of all, we're on a motion to dismiss here. [00:17:18] Speaker 03: So is your client disputing that she never asked for other accommodations? [00:17:24] Speaker 03: Is your client disputing that she asked for other forms, including transfer? [00:17:30] Speaker 01: We don't dispute that she suggested both a transfer or reassignment [00:17:35] Speaker 01: and that her claims be processed by another department as part of the grievance process with Ms. [00:17:40] Speaker 01: Withers before she filed a reasonable accommodation. [00:17:43] Speaker 01: After she sought the reasonable accommodation, she did not request anything other than the indefinite leave until her claims were processed. [00:17:49] Speaker 03: Well, then why does the email that you all attached, J-128-129, January 2013, talk about looking for GS-15 positions? [00:18:03] Speaker 01: That's what Ms. [00:18:04] Speaker 01: Walton, Ms. [00:18:05] Speaker 01: Walton suggests looking for GS15 positions, and Ms. [00:18:08] Speaker 01: Minokin responds that she says, your email today confirms my sense that perhaps we are not on the same page. [00:18:16] Speaker 01: While I have no problem discussing a reassignment, I think it's important for me to note that I do not see that as a priority. [00:18:22] Speaker 01: My accommodation request, the accommodation request that followed the administrative grievance process in which she discussed the possibility of reassignment, the accommodation request, she says, [00:18:32] Speaker 01: was intended to convey my urgent need to recover from a debilitating trauma and ensure that I'm not traumatized again. [00:18:39] Speaker 01: That was the context for Dr. Hufford's recommendation. [00:18:42] Speaker 01: In September, the EEOC formally arranged a block of extended leave to enable me to address the cumulative effects of trying for more than 10 years to meet the expected demands of excellence while working in an environment where I'm constantly reminded. [00:18:54] Speaker 01: And what she says is IOC... So Ms. [00:18:55] Speaker 03: Walden then says the GS-15 position, can you identify an office? [00:18:59] Speaker 03: And she says, unfortunately, [00:19:01] Speaker 03: The GS-15 position in the Washington Field Office is not vacant. [00:19:05] Speaker 03: So who asked to look for a GS-15 position in the Washington Field Office? [00:19:10] Speaker 01: It may be something that was brought up during the conversation with Ms. [00:19:15] Speaker 01: Walton. [00:19:16] Speaker 01: I think Ms. [00:19:16] Speaker 01: Walton was probably aware that that had been a topic. [00:19:18] Speaker 03: So no one may have brought that up with Ms. [00:19:20] Speaker 03: Walton. [00:19:20] Speaker 01: But the accommodation request that she submitted requests nothing other than indefinite leave. [00:19:26] Speaker 03: Who wrote that? [00:19:28] Speaker 01: I believe that she did. [00:19:31] Speaker 01: It says aye. [00:19:32] Speaker 03: Where is the evidence show that she wrote it as opposed to? [00:19:34] Speaker 03: No, but it's quite common for EEO people to fill out these forms on behalf of people who file complaints. [00:19:41] Speaker 01: I mean, she alleges that she submitted an accommodation on or around September 11th in her complaint. [00:19:47] Speaker 01: That's in paragraph 92 of the amended complaint. [00:19:50] Speaker 01: That request is stated September 11th, and it refers to aye. [00:19:52] Speaker 03: But this document clearly was not filled out. [00:19:55] Speaker 03: This is not the September 11th communication. [00:19:58] Speaker 03: because it references a September 25th letter from Dr. Huffer. [00:20:03] Speaker 01: And I don't know exactly the timing of how that worked out. [00:20:06] Speaker 03: So this clearly is not the email referenced in the complaint. [00:20:10] Speaker 01: That may be true. [00:20:11] Speaker 03: So on what basis was this before the district court on a motion to dismiss? [00:20:15] Speaker 01: Because it was incorporated by her. [00:20:16] Speaker 01: I mean, she mentioned that she submitted a reasonable accommodation request. [00:20:19] Speaker 01: On September 11th. [00:20:20] Speaker 03: And that documents it. [00:20:21] Speaker 03: On September 11th? [00:20:22] Speaker 01: I'll also note that we moved in on. [00:20:23] Speaker 03: I'm sorry. [00:20:24] Speaker 03: Hang on. [00:20:26] Speaker 03: Where does the complaint reference this document? [00:20:29] Speaker 03: And maybe that will tell me when this thing was actually written. [00:20:32] Speaker 01: In paragraph 92 of the amended complaint, it says, on or about September 11, 2012, plaintiff emailed EEOC's disability program manager requesting an appointment to discuss plaintiff's need for reasonable accommodation. [00:20:43] Speaker 03: And that's not this document. [00:20:45] Speaker 01: If it's not this document, that certainly documents the conversation. [00:20:49] Speaker 01: And I don't. [00:20:50] Speaker 03: Well, we don't know if she documented it or who documented it. [00:20:53] Speaker 03: But this is not. [00:20:54] Speaker 03: I'm sorry. [00:20:54] Speaker 03: I just want to be clear. [00:20:56] Speaker 03: I understand the rule that you can sometimes consider Documents Incorporated referenced in a complaint, but this is not an email and this is not a document that was created on September 11th. [00:21:08] Speaker 03: Can we agree on that? [00:21:12] Speaker 01: That's possible. [00:21:14] Speaker 03: I'm sorry. [00:21:14] Speaker 03: It references a previously submitted letter on September 25th, so can we agree [00:21:23] Speaker 03: which would have been impossible to do on September 11th. [00:21:25] Speaker 03: So can we agree that this was written after September 25th? [00:21:30] Speaker 01: It would appear to document the conversation on September 11th. [00:21:34] Speaker 03: It can't document a conversation on September 11th when it refers to a document from September 25th. [00:21:40] Speaker 03: Can we agree on that? [00:21:42] Speaker 01: If it follows September 11th, I think it can document a conversation on September 11th. [00:21:47] Speaker 01: I would like to get this in that we did move in the alternative for summary judgment. [00:21:59] Speaker 01: We submitted a statement of undisputed material facts in which we [00:22:02] Speaker 03: But the district court didn't grant summary judgment. [00:22:04] Speaker 01: It didn't grant summary judgment, but we did move for summary judgment. [00:22:07] Speaker 01: We submitted a statement of undisputed material facts attaching this document, characterizing this as Ms. [00:22:12] Speaker 01: Minokin's reasonable accommodation request. [00:22:14] Speaker 01: And she did not dispute this. [00:22:15] Speaker 03: And that seems to be very much a disputed fact, whether this was based on the complaint. [00:22:20] Speaker 03: I mean, I get that you say that, but she very much disputes that this was all she ever requested, and this was the entire universe. [00:22:28] Speaker 03: Would you agree that's a disputed fact? [00:22:30] Speaker 01: No, I mean, we did say that this was the reasonable accommodation request. [00:22:33] Speaker 01: She did not respond to our statement of undisputed material facts with a statement of disputed facts. [00:22:38] Speaker 01: This is despite the fact that she was represented by counsel at the time. [00:22:41] Speaker 03: Fine, but the district court didn't grant summary judgment, so I don't see why we would hold that against her here now. [00:22:45] Speaker 01: But the court can affirm on that basis, because we did move for summary judgment. [00:22:49] Speaker 01: I would also note, as I said, she did clarify in her motion to reconsider that the reassignment and the alternative processing were requested as part of the administrative grievance process with Ms. [00:23:01] Speaker 01: Withers. [00:23:03] Speaker 01: What we know about the request, what we have said in our statement of undisputed material facts, which were not contested, is that her request asked only for indefinite leave. [00:23:11] Speaker 01: The letter, certainly from Dr. Huffer that she submitted and that was submitted with our brief, sought only [00:23:17] Speaker 01: indefinite leave. [00:23:18] Speaker 01: And we know from the email exchange she had with the disability program manager that she rejected any reassignment. [00:23:25] Speaker 01: She said that it's not a priority. [00:23:26] Speaker 03: And if she is not... Not a priority. [00:23:28] Speaker 03: Not a priority. [00:23:30] Speaker 03: It's not the same thing as rejection. [00:23:31] Speaker 01: But she also said that she could not work under any position with the dark cloud of her appeals hanging over her head. [00:23:39] Speaker 03: And if the... And whether the inference there is whether she couldn't work in this office, although it seems to be prime. [00:23:44] Speaker 03: That's just an inference question, right? [00:23:46] Speaker 03: Whether she meant that. [00:23:47] Speaker 03: or she couldn't work anywhere else while they were in process. [00:23:51] Speaker 01: She said it in the process of rejecting the course of discussion of a reassignment. [00:23:58] Speaker 01: She said she did not want to discuss a reassignment. [00:24:00] Speaker 01: She wanted a decision on her request for indefinite leave because she did not see how she could work in any capacity with her appeals hanging over her head. [00:24:07] Speaker 03: This is the back and forth that happens with the reasonable accommodation process. [00:24:09] Speaker 01: And the agency did as she asked and issued a decision on her request for indefinite leave. [00:24:14] Speaker 01: and denied it. [00:24:16] Speaker 03: Another part of your argument is that six months is just categorically unreasonable. [00:24:21] Speaker 01: That's not precisely our argument. [00:24:23] Speaker 01: Our argument is that she requested six months for the amount of time that her appeals remain pending, whichever was longer. [00:24:32] Speaker 03: Right. [00:24:32] Speaker 03: But at the time, do you agree that the six-month part of that would be a reasonable accommodation? [00:24:40] Speaker 03: Is the more longer part that you're concerned? [00:24:42] Speaker 01: It may be. [00:24:43] Speaker 01: The issue is that six months may be. [00:24:47] Speaker 01: depending on certain circumstances. [00:24:50] Speaker 03: Certainly, we have also demonstrated that a employer is not required to... So you agree that, I mean, these are always a fact-specific analysis. [00:25:03] Speaker 03: But so you're not asking for a categorical rule that at least the six-month part of this request was unreasonable? [00:25:09] Speaker 01: No, no, Your Honor. [00:25:09] Speaker 01: The decision that we were asking the court to make is a direct follow-on from the decision the court made in Minter. [00:25:16] Speaker 01: In Minter, the person seeking an accommodation said, [00:25:19] Speaker 01: that they were unable to work for an indefinite period of time and had been out of work for three months up until that time. [00:25:26] Speaker 01: And based on that, this court determined that they had not shown themselves to be a qualified individual. [00:25:30] Speaker 01: Similarly, with respect to Ms. [00:25:31] Speaker 01: Minokin, she had been out of work for five months at the time that her reasonable accommodation request was denied and had also claimed to be totally unable to work for an indefinite period of time, as long as those appeals remained pending. [00:25:42] Speaker 01: We know that that eventually ended up being three years. [00:25:46] Speaker 01: We also know that she requested, the other aspect of that is the leave she requested was paid leave. [00:25:52] Speaker 01: And we do know from EEOC guidance that an employer is not required to modify its paid leave policies. [00:25:57] Speaker 03: Okay, so I guess I wasn't clear. [00:25:58] Speaker 03: So do you think the paid leave for six months part of the request is categorically unreasonable? [00:26:06] Speaker 01: If that would require the employer to modify its paid leave policies, it would be unreasonable. [00:26:13] Speaker 03: Would offering her paid leave for six months have been categorically an unreasonable accommodation? [00:26:20] Speaker 01: Yes. [00:26:22] Speaker 03: Even though they then offered it as long as she was willing to waive her rights for any claims against EEOC? [00:26:29] Speaker 01: Right. [00:26:30] Speaker 01: I think the EEOC went above and beyond. [00:26:32] Speaker 03: So they can, right? [00:26:33] Speaker 01: Oh, certainly. [00:26:34] Speaker 01: Oh, certainly. [00:26:35] Speaker 01: And the EEOC was trying to reach a resolution with her. [00:26:38] Speaker 03: So it sounds like the EEOC could have given her six months paid leave. [00:26:41] Speaker 01: But it's not legally obligated to, I think, Your Honor, is the point. [00:26:44] Speaker 03: Well, the question is if they can do it, whether you're deciding, really. [00:26:46] Speaker 03: Something's a reasonable accommodation if they're willing to do it as long as she waives all her rights, whether it suddenly becomes, as you've asked for, an emotion dismissed unreasonable as a matter of law when she's not willing to waive her rights. [00:27:00] Speaker 01: I mean, if an agency is willing to go above and beyond its legal obligations, I don't think that changes its legal obligations to whatever the agency is willing to do. [00:27:12] Speaker 01: unreasonableness of the indefinite paid leave. [00:27:14] Speaker 01: And this is indefinite paid leave. [00:27:15] Speaker 01: It's not just six months. [00:27:16] Speaker 01: It's at least six months, but indefinite. [00:27:19] Speaker 01: That's alternative to the fact that because Ms. [00:27:21] Speaker 01: Minokin had been out of work for five months, unable to perform work in any capacity, and claimed, both in her reasonable accommodation request and in the letter from Dr. Hufford, that she was unable to perform work in any capacity for an indefinite period of time, that renders her not a qualified individual. [00:27:35] Speaker 01: So that's a separate basis. [00:27:36] Speaker 03: Thank you very much. [00:27:40] Speaker 03: All right. [00:27:40] Speaker 03: Ms. [00:27:40] Speaker 03: Minokin will give you two minutes. [00:27:43] Speaker 03: Two minutes. [00:27:48] Speaker 02: Excuse me. [00:27:49] Speaker 02: Your Honor, on the grievance, the grievance discussions, number one, the grievance is not a claim or a complaint. [00:28:01] Speaker 02: There are no entitlements to a grievance. [00:28:03] Speaker 02: It's just something that gets you a meeting with a superior to change or alter your work. [00:28:09] Speaker 02: The grievance discussions were over [00:28:14] Speaker 02: August of 2012, because in April of 2012, the chief operating officer had offered me, she was the first person to bring up paid leave, not me. [00:28:28] Speaker 02: She offered me paid leave for four months in April of 2012. [00:28:35] Speaker 02: I accepted it because I was desperate. [00:28:40] Speaker 02: She never got back to me. [00:28:42] Speaker 02: She was going to implement it. [00:28:44] Speaker 02: I waited three months. [00:28:45] Speaker 02: I waited until August, heard nothing. [00:28:49] Speaker 02: So the grievance discussions were over. [00:28:50] Speaker 02: I sent an email saying the grievance settlement or resolution is over as of now, as of August. [00:29:01] Speaker 02: In September, I invoked the formal process. [00:29:05] Speaker 02: And it was held up, like I said. [00:29:08] Speaker 02: And several months later, the chief operating officer. [00:29:12] Speaker 02: What did you ask for in that formal process? [00:29:16] Speaker 02: I asked for, I sent an email, not that document, I sent an email in September to the disability program manager asking to set up a meeting or appointment to talk about the fact that I was working in an environment that was untenable and detrimental to my health because EEOC would not put into place a neutral process [00:29:45] Speaker 02: or at least send me somewhere else so I don't have to work and debate the people who are processing it. [00:29:54] Speaker 02: I had already done it for 10 years. [00:29:56] Speaker 02: It was like enough. [00:29:59] Speaker 02: So all the things that I had asked for from Claudia, the chief operating officer, I was still interested in when I invoked the formal process. [00:30:07] Speaker 02: I thought the formal process was a more structured way [00:30:12] Speaker 02: to lay the groundwork for any claim that I needed to file. [00:30:16] Speaker 02: So this notion that the grievance means anything, it means nothing. [00:30:23] Speaker 02: It was over. [00:30:25] Speaker 02: Indefinite leave. [00:30:28] Speaker 02: EEOC was adjudicating the OPM appeals. [00:30:32] Speaker 02: They had full control. [00:30:34] Speaker 02: over how long it would take. [00:30:37] Speaker 02: And certainly the Chief Operating Officer could arrange to do it sooner. [00:30:40] Speaker 03: Okay. [00:30:41] Speaker 03: Thank you very much. [00:30:42] Speaker 03: I think we've got your arguments. [00:30:44] Speaker 02: Thank you. [00:30:45] Speaker 03: The case is submitted.