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Case number 19-7068, Philip Andrew Hoffman, Appellant versus District of Columbia.

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Mr. Brown for the Appellant, Mr. Law for the Appellate.

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Mr. Brown?

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Yes.

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Yeah, I'm sorry.

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I didn't hear it time.

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May it please the court.

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My name is Gary Brown.

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I represent the appellant, Philip Haughton, in this civil action.

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Good morning, Mr. Brown.

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Good morning, Your Honor.

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In 2008, Congress amended the ADNA, including the wording of the causation standards, how much discrimination is enough to violate the law.

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Before the amendment, ADA, the ADA Americans with Disabilities Act, used because of

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which was consistent with Title VII of the 1964 Civil Rights Act and the AIDS Discrimination and Employment Act.

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However, in 2008, Congress changed that language from because of to on the basis of.

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Those are the new words for the causation standard for the ADA.

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This case requires the court to define the proper standard of causation.

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Words mean what was Congress intending with the change.

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In Burlington, northern Santa Fe, a Title VII case identifying the difference between discrimination and retaliation, because of the difference in the wording, the court said, we normally presume that where words differ as they differ here, Congress acts intentionally and purposefully.

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In 2008, Congress intentionally and purposefully changed the causation standard in the ADA.

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with sending a message.

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Currently, there were two classes, the motivating factor level or the best four level.

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If Congress believed the ADA was a tort and wanted motivating factor to be the level of causation, then it could have used what Title VII used in 1990, 42 U.S.E.

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2008-2M.

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So when Congress wanted the

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Status claims of Title VII only need the lesser standard of the motivating factor.

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It wrote specific language to accomplish that result.

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If Congress wanted a but for a level of causation, there was no need to make an amendment.

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That's what the cause of had been interpreted, and both the ADBA and Title VII retaliation provisions

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which use because of language are both now interpreted as blackboard causation levels.

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Are you arguing that the motivating factor analysis under the ADA goes further than the motivating factor provision in Title VII in particular under

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M, the impermissible consideration, because in your view, even under the ADA, you're entitled to a motivating factor, instruction, which doesn't come with the same decision, partial dissent.

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Is that your argument?

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You're distancing yourself from rather than relying on incorporation of Title VII.

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You're right.

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My real point is that I don't believe that the ADA is in its real nature a tort.

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But I do believe that motivating... But just back up.

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Go ahead.

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I wonder if you are disavowing what in many contexts is understood to be the accompanying instruction, the same decision, partial defense.

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You disavow the court.

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Are you talking about the time when I'd be able to get no back pay, but some... Right.

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A partial defense, meaning at limits.

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Under Title VII, where there's a status-based discrimination claim.

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a plaintiff that proves that that discrimination was a motivating factor, but not a but for cause, the defense is entitled to an instruction that we would have made the decision anyway.

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And if the jury says, yes, it was a motivating factor, but yes, they would have made the decision anyway, the plaintiff is still entitled to declaratory relief and fees, but is not entitled to damages.

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And my question is, is that the rubric

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that you understand would apply in your theory under the ADA or not?

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Not, Your Honor.

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I'm not sure we're looking at the ADA as a not, as not a court would take the court, but I know it would take them away from the butt for jury instruction and try to get change.

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I'm not sure how that balance might work out in various situations.

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But it requires the plaintiff, and I would ask for the court, it requires the plaintiff to admit that they would have been fired or they would have had that adverse action anyway.

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And in my case, my client absolutely refused to even consider that as a possibility.

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So.

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I'm not sure that I heard you correctly, but I thought you just said that,

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that that rubric, what I just described as the Title VII motivating factor package, which is the plaintiff proves motivating factor, defense has an opportunity to say, hey, we would have made the same decision, even not considering that factor.

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As you just re-articulated, I thought you said that the plaintiff would have to admit that they would have made the same decision, which is not, that's not what that Title VII standard requires.

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I'm sorry.

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That's the way it was proposed to me in court.

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Yes.

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But no, I understand what you're saying, Lerner.

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I'm not sure that Title VII applies.

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Title VII is a tort.

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Whether or not the company would, the employer would have the opportunity to prove that they would have fired or taken the adverse action anyway, I think has to be an open option for the employer.

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They've got to be able to,

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justify or try to justify what they have done.

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So I have no belief that the motivating factor is going to interfere with an employer's ability to demonstrate that it would have happened anyway.

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I think the key for my point is that motivating factor is discrimination.

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Title VII says it's enough to violate the law.

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So if there is a motivating factor, there should be punishment.

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What the 5G talks about is a balance.

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Okay, punish the employer, charge them some attorney fees, no back pay, and provide equitable relief if it's appropriate.

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But the back pay is out because the company would have done it anyway.

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That's the balance I think that Title VII is trying to draw.

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And that's the kind of balance that I think the ADA would need to use.

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But the idea that... Thank you, Mr. Houghton.

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One more question.

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You asserted in your brief that the lower standard, the motivating factor standard, would have caused the jury to find in Mr. Houghton's favor.

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Yes.

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What's the basis

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on which you say that, that the evidence can be understood as supporting either that everything that the employer said was a lie or something more like it was just a factor.

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And just as a factual matter, I'm not sure what you would have the jury believe happened that would map onto the motivating factor approach.

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There is a document, the exhibit 35, which was a meeting between the union, Mr. Heilman, the union rep, and the principal, with the neutral note taker, essentially neutral note taker.

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In that document, the notes reveal several different areas of conflict.

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Mine is an interesting widening

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impact, I think, especially in front of a jury, if a witness lies once, his credibility is really undermined.

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So, for example, the one that I thought was really powerful was the claim that my client had not prepared his walls in a good enough way.

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And he had testimony from other people saying that.

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But exhibit eight, I believe, is a document just

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fairly recently before the new principal came from the old principal praising Mr. Potten for the way that he kept his classroom and used different ways to help his disabled students.

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I think that- I have to say, Mr. Brown, I don't believe that this exhibit is in the appendix that you gave us.

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I read the entire appendix and I don't remember this argument being referred to by the witnesses.

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testimony you presented, and I don't remember reading this exhibit.

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Yes.

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Well, Your Honor, I'm not sure that in my opening brief that I addressed this, I know that Mr. Love, that he came back with that even if it was a different standard, he'd lose anyway because there's enough evidence in there.

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That's a pretty broad way to look at

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what was going on.

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I hope Exhibit 35 is in the appendix.

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It was definitely admitted.

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But let me just ask, we've taken a lot of your time and we want to do some time for rebuttal, but is there any other factual material that you would point to to explain how a jury could have found

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that even not totally discrediting the principal as is your primary argument, that they might nonetheless have found that disability bias was a motivating factor.

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Well, yes.

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I mean, there's the dispute about whether or not he argued, he raised his voice in a meeting.

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Both the principal said one thing and the plaintiff said a different.

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But in that particular case, I think it was Georgia Johnson who accompanied him to regular meetings and swore that he was not the kind of person who would raise his voice and clearly never did when she was with him at all the meetings.

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That was about that.

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There was a question about his lesson plan.

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Again, the principal and Mr. Houghton disagreed directly, but he had Paula

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come into the class and help him with his lesson plans.

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And she talked about it.

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The principal said they were in the car.

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Mr. Hodden and Paula said that they worked on them in the classroom during that week.

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So as to every item, Mr. Regis said that he was available to help

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and wanted to meet with Mr. Houghton several times in the emails to Mr. Houghton.

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Mr. Houghton showed up at the appointed time and he would help for him.

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So it is, if every accusation proposed by Mr. Regis was rebutted through the testimony of people, the reason that I bring up 35 is it's a compilation and,

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clear identification that they are in conflict and that the conflict was presented to the jury.

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Mr. Brown, unless Judge Pillard or Judge Santel have any further questions, I think we'll hear from Mr. Love.

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No questions.

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Thank you.

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Good morning and may it please the court, Richard Love for the District of Columbia.

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Okay.

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You know, the Mr. Houghton didn't try a mixed motive case.

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He didn't argue or present evidence of both the permissible and impermissible motives.

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I think the arguments that you just heard from council corroborate that this was a factual dispute based on whether or not principal Regis was telling the truth and their argument

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is that Principal Regis was lying that the reasons he gave for his termination were not true and that the real reasons for including him in the RIF was to discriminate or retaliate against him based on his disability.

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So the district court correctly found that even if the motivating factor was a viable theory under the ADA,

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motivating factor instruction had no basis in the record here.

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Mr. Houghton wasn't entitled to that instruction that discrimination need only be a motivating factor when his case was based exclusively on a single factor.

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I also think that- Can I ask you, Mr. Love?

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Sure.

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It's a little bit confusing because wouldn't it be

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permissible in, depending on the evidence, for a plaintiff to say, you know, I don't think that the reason that I was fired was because of my bad conduct at work.

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But even if you think that might've been part of the reason, there was definitely discrimination.

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Like those things seem like they're not

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The plaintiff doesn't have to concede that there were legitimate factors in order to have a mixed motive instruction, assuming under the law that it's available, do they?

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They don't have to concede anything.

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No, I agree they don't have to concede anything.

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But again, and we're moving into sort of, as you had said before, the Title VII rubric.

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This does involve a strategic choice.

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by the plaintiff because, you know, there is, you know, the affirmative defense an employer can put on that would limit damages.

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So, you know, there's a strategic decision as to whether they want to present the case as a single factor case or as a mixed motive case.

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And... Right.

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It's sort of... Let me just clarify, and I want you to follow up, so I gave that thought.

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If I'm a prosecutor, I'm trying a criminal case, I can go for murder one or I can go for murder one and, you know, manslaughter.

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And it's a strategic decision whether to throw the manslaughter in because maybe the jury will be tempted to go that way.

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So I'm going to say, okay, I'm not going to do that.

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I'm just going to go for the brass ring.

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So in that sense, it's a strategic decision.

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But there's no either or about it, right?

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You don't have to, you know, either.

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You can present both a mix.

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motive and single factor case.

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Yes, but that too is a strategic choice and I think that the district court correctly found based on having viewed all the evidence and listened to the testimony that this case was presented as a single factor case.

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But even if she was wrong,

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I think as your questions were designed to pass, Mr. Houghton didn't demonstrate that any error had interfered or violated his substantial rights.

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There's nothing in his brief that even addresses the effort, the issue other than a totally conclusory

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a statement that he would have prevailed or had a better chance of prevailing if a motivating factor instruction had been given.

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In addition, as our brief pointed out, every circuit court to have considered the issue has interpreted Title I's prohibition on discriminating against a qualified employee on the basis of a disability.

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to require evaluation under a but for causation standard, not a motivating factor standard.

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And while Mr. Houghton has argued that the change from because of to on the basis of has some importance here, the Supreme Court has repeatedly indicated that

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the phrase on the basis of indicates a but for causal relationship.

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Indeed, most recently a week ago in this case called Bad Vwuki.

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And a week earlier that in the case Comcast v National Association of African American owned media.

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In both cases, you know, the court indicates that on the basis of indicates

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but for causation.

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And the court said the same thing in the Gross case, which we cite in our brief, as well as in the Nassar case.

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In addition, those cases, Gross, Nassar, it also was discussed in the Comcast case, found that

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It was instructive that the language inserting the motivating factor standard into the status-based defenses in Title VII was done at the same time that the ADA was amended, but that language, that test was not included in the ADA.

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I've seen references to that, but wasn't it actually a year earlier that the ADA was amended?

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I thought it was 1990 ADA amendments, 1991 Civil Rights Act.

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The Civil Rights Act was 1991.

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Yeah, so 1990 is the ADA, and 1991 is the Civil Rights Act that amends the Title VII provision to partially codify Price Waterhouse.

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at the same time, actually at the time, I mean, I think the argument that's been made by some of the dissenters and some of the other circuit cases is that at the time that the Disability Act was amended, the because of language was actually sought in light of Price Waterhouse to invite the motivating factors approach.

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So they wouldn't have needed to address that.

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Am I wrong about the chronology?

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Well, I'm not sure that you're wrong about the chronology, but I do believe that both several of the cases, and I believe Gross and Nassar, indicated that it was instructive that they were, said the ADA's text does not include a motivating

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factor language in Congress didn't add it, even though when it amended Title VII, it contemporaneously amended the ADA in several ways.

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So that's how the court described it, I believe.

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But I think the point you made, if that were the case, I think then the change from because of to on the basis of I think

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does not signal that the motivating factor that it intended to employ a motivating factor test in the ADA.

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And what does it signal?

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Well, you know, the courts that have looked at it, including

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the Fourth Circuit in Gentry, the Second Circuit in Matofsky, or the Sixth Circuit in Lewis have described the change to address that there was, you know, undue focus had been placed on the preliminary questions, whether a particular person is a person with a disability.

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And it wasn't designed to lower the causation standard, but to emphasize that the standard for determining whether an impairment constitutes a disability.

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So it's like because of that you actually have to be disabled, whereas on the basis of is you could be treated as thought to be disabled.

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Right, I think, you know, it was to lower the emphasis on the preliminary question of whether a person, whether an impairment constituted a disability under VA rather than lowering.

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But the employer, I'm sorry, go ahead.

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Rather than lowering the causation standard.

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Right.

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Now, I guess that you're making a point that it's not going to the causation standard, but I'm just trying to get an accurate sense of what it was doing.

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And I thought that it had to do with if someone's perceived to be disabled, even if they're not.

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that would be disability discrimination that would be violated?

[00:24:05] Speaker 00:
No, I think that's part of it.

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But I think part of the amendment, if I understand it, was to broaden the scope of coverage and that there was a reaction to several cases that had made the bar to qualify as a person with a disability.

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as defined under the ADA, more rigorous to basically lower that standard to construe the definition more liberally and thus to provide broader coverage as to whether or not the impairment itself constitutes as a disability under the law, but not to lower the causation standard, whether or not that person who does have a disability was

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discriminated on the basis of that disability.

[00:25:08] Speaker 01:
Mr. Love, thank you.

[00:25:09] Speaker 01:
Mr. Brown, you are out of time, but you can have one more minute if you would like.

[00:25:18] Speaker 01:
Thank you, Your Honor.

[00:25:20] Speaker 02:
I would like to make a few brief points.

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First of all, it's a funny place to change a different thing by changing causation standard language.

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idea that the government used to do, there's three groups of disabled people.

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There's the ones who can't do the job at all.

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There's the ones who can do the job without any help at all.

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It's the middle category that the ADA was intended to help.

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The government, I mean, Congress shifted assistance for those people from the government to the employer, which makes a lot of sense in a lot of reasons.

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For a lot of reasons, the employer knows the workplace better than the person

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tell whether reasonable accommodation is appropriate for its workplace.

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But the important part is that without doing any harm to anybody, an employer is responsible for changes, making changes.

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This is different than affirmative action required a finding of liability.

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The definition of court that Justice Kennedy repeats again and again in

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in or goes through fairly thoroughly in that it talks about harm, addressing a harm caused by an employer.

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There is no harm caused by an employer here.

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It's got an obligation that used to be part of the government and still is.

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But rather than give billions of dollars to the federal government to increase their training position, they've shifted it to the employer to make the on the job definition.

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Employers have had to hire doctors.

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They've had to hire

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They've had to restructure their whole workplace in time.

[00:27:02] Speaker 01:
It's different.

[00:27:03] Speaker 01:
Mr. Bowles, finish up, please.

[00:27:05] Speaker 01:
You're well over.

[00:27:07] Speaker 02:
I'm sorry.

[00:27:08] Speaker 02:
I did not realize that.

[00:27:09] Speaker 02:
I'm sorry.

[00:27:09] Speaker 02:
I blocked out the time.

[00:27:11] Speaker 02:
So that's my point.

[00:27:13] Speaker 02:
Okay.

[00:27:15] Speaker 01:
Thank you.

[00:27:16] Speaker 01:
We have your... Dave, did you have a question?

[00:27:18] Speaker 05:
No, no question.

[00:27:20] Speaker 01:
Pardon me?

[00:27:20] Speaker 01:
Did you have a question?

[00:27:22] Speaker 05:
No question.

[00:27:23] Speaker 01:
Ah, okay.

[00:27:25] Speaker 01:
Mr. Brown and Mr. Love, thank you for your presentations this morning.

[00:27:29] Speaker 01:
The case is submitted.