[00:00:01] Speaker 02: Face number 20-5043, Henry Getter of Balance versus United States Government Publishing Office. [00:00:07] Speaker 06: Mr. Hurst, appointed amicus curiae for the balance. [00:00:11] Speaker 06: Mr. Dreier for the appellate. [00:00:18] Speaker 00: Thank you, Your Honor. [00:00:18] Speaker 00: May I please the court? [00:00:19] Speaker 00: My name is Scott Ballinger. [00:00:20] Speaker 00: I'm the Director of the Appellate Litigation Clinic at the University of Virginia School of Law. [00:00:25] Speaker 00: And it's my pleasure to introduce Mr. Ian Hurst, a third year law student [00:00:29] Speaker 00: who will be presenting argument as a court-appointed amicus curiae in support of Mr. Jeter. [00:00:34] Speaker 05: Thank you, Mr. Ballinger. [00:00:36] Speaker 05: Thank you for your service in this case. [00:00:40] Speaker 05: And we'll hear from you now, Mr. Hirsch. [00:00:46] Speaker 02: May it please the court. [00:00:48] Speaker 02: Congress passed the ADA to integrate individuals with disabilities into the mainstream of American life. [00:00:54] Speaker 02: So if an employee gets injured or disabled, the employer can't just fire them. [00:01:00] Speaker 02: So long as it doesn't cause an undue hardship and so long as the employee is qualified, the employer is required to consider reassignment to a vacant position. [00:01:09] Speaker 02: Now the district court held that the employer's reassignment obligations only include formal vacancies. [00:01:16] Speaker 02: And that reading is wrong for two reasons. [00:01:19] Speaker 02: There's nothing in the text of the ADA [00:01:23] Speaker 02: that justifies that limitation. [00:01:25] Speaker 02: The Supreme Court held in Barnett that vacant has no specialized meaning under the ADA. [00:01:34] Speaker 02: And this court held in McFadden that vacant means not held, filled, or occupied. [00:01:39] Speaker 02: So an employer is obligated to consider all vacancies. [00:01:43] Speaker 02: This reading also categorically excludes light duty vacancies. [00:01:48] Speaker 02: to the district court's credit, sometimes those vacancies will be posted on a job listing, but not always. [00:01:56] Speaker 02: Sometimes positions are filled internally. [00:02:00] Speaker 02: And that's this case. [00:02:02] Speaker 02: And there are light duty programs across the country. [00:02:05] Speaker 02: And I'll give you a few examples. [00:02:07] Speaker 02: In Johnson versus Brown, for example, a medical center reassigned injured employees to temporary light duty positions [00:02:14] Speaker 02: Um, in the operating room and then admission Michelin versus a tire company, the company reassigned injured employees to a light duty position in the deconplexing unit. [00:02:24] Speaker 05: I'd like to back up for a moment council to kind of a more basic and fundamental issue. [00:02:30] Speaker 05: I see what this case, um, the, the medical documentation that, that [00:02:41] Speaker 05: Mr. Geter relied on below was a letter from 2012 from Dr. Doren. [00:02:50] Speaker 05: And that said that his disability had ceased in 2012 as of the date of the examination. [00:02:59] Speaker 05: And so it's now the end of 2013. [00:03:02] Speaker 05: And Geter was asked for more documentation [00:03:11] Speaker 05: He didn't provide any documentation and didn't respond to the December 2013 letter. [00:03:21] Speaker 05: Why isn't that essentially abandoning the interactive process and sufficient grounds in and of itself to affirm? [00:03:33] Speaker 02: Two responses, Your Honor. [00:03:34] Speaker 02: In Dr. Dorn's letter, [00:03:36] Speaker 02: He explained that Jeter's disability was permanent and a permanent disability does not expire. [00:03:45] Speaker 02: And the second point is that Jeter started the interactive process on November 25th, 2013. [00:03:53] Speaker 02: And the GPOs policies require that Robinson respond in 10 days. [00:03:59] Speaker 02: It took him 20 days to respond. [00:04:01] Speaker 02: And when he did respond, he asked for further medical documentation. [00:04:05] Speaker 02: The GPO's policy is outline that the interactive process is a flexible give and take. [00:04:12] Speaker 02: And it doesn't require that Jeter use any special words to start that process. [00:04:18] Speaker 02: The request for a medical documentation is near the end of that process if they wanted to dispute that Jeter no longer had a medical condition. [00:04:28] Speaker 05: But the door and leather said that he can return to his work as a truck driver. [00:04:37] Speaker 05: except that the truck drivers were supposed to be able to lift up to 50 pounds, and Jeter could only lift up to 30 pounds, but to the extent that he ever had to, there was ever something over 30 pounds needed to be lifted, he would have a helper who could do that, and thus he could perform his job. [00:05:03] Speaker 05: I mean, that's what the letter that Mr. Jeter is relying upon says that he could return to his job. [00:05:12] Speaker 02: Well, Dr. Dorn's letter said that his disability was permanent. [00:05:16] Speaker 02: So Jeter was understandably confused when Robinson asked for additional information in the 2013 letter. [00:05:26] Speaker 03: Just out of curiosity, I'm not sure in the record, did he ever pay the $4,000 tickets? [00:05:36] Speaker 02: Jeter got his CDL reinstated. [00:05:40] Speaker 02: He didn't get his CDL reinstated. [00:05:42] Speaker 02: He got the medical conditions cleared, so he was able to re-obtain his CDL in 2014, but then afterwards the GPO fired him. [00:05:52] Speaker 03: Yeah, the record doesn't show whether he ever paid the tickets or not. [00:05:57] Speaker 02: I apologize, Your Honor. [00:05:58] Speaker 02: I don't think anywhere in the record it shows whether or not he [00:06:00] Speaker 02: He paid the tickets, but he was medically cleared to re-obtain his CDL in 2014 before he was fired. [00:06:08] Speaker 05: Just so that I'm clear, are you saying that the record shows that he did obtain his CDL before he was fired? [00:06:16] Speaker 02: No, he obtained his CDL after he was fired. [00:06:18] Speaker 02: But before he was fired, he was cleared to re-obtain his CDL. [00:06:25] Speaker 02: But he did not, in fact, in the early period. [00:06:27] Speaker 05: What's the evidence on the record of that? [00:06:30] Speaker 02: that he was medically cleared to re-obtain the CDL? [00:06:33] Speaker 02: Yes. [00:06:35] Speaker 02: I think that's on Joint Appendix 108, Your Honor. [00:06:46] Speaker 02: Yeah, on Joint Appendix 108, they asked Jeter, did that medical exam clear you to get a CDL in March of 2014? [00:07:00] Speaker 02: Yes, sir. [00:07:04] Speaker 06: All right, thank you. [00:07:06] Speaker 02: You're welcome, Your Honor. [00:07:09] Speaker 02: So temporary late duty positions are never posted on a job listing. [00:07:13] Speaker 02: That's because they're not meant for non-disabled employees or outsiders. [00:07:17] Speaker 02: They're for employees who get injured on the job, and they can be left unfilled just like a formal position. [00:07:23] Speaker 02: The better approach is to ask what is reasonably available under the employer's existing policies. [00:07:29] Speaker 02: And the Arlene standard accounts for all vacancies. [00:07:33] Speaker 02: has been applied by numerous circuit courts to determine the scope of an employer's reassignment obligations. [00:07:39] Speaker 02: In this case, the GPO had a policy, had a policy to assign, sorry, Judge Cassidy. [00:07:47] Speaker 02: Your honor, did you have a question? [00:07:51] Speaker 04: No, did I click a button by mistake or something? [00:07:55] Speaker 04: Can you hear me? [00:07:56] Speaker 02: Yep, my apologies, your honor. [00:07:58] Speaker 02: No, go ahead. [00:07:58] Speaker 02: So the GPO had a policy to fill the, [00:08:01] Speaker 02: a vacant, or they had a policy to fill the desk position in their delivery section with injured workers. [00:08:08] Speaker 02: And the district court said that there was undeniably strong evidence for that practice. [00:08:13] Speaker 02: We can walk through a rough timeline. [00:08:15] Speaker 02: Monique Jones had the position between 2010 and 2012. [00:08:20] Speaker 02: Bobby Graham had the position in 2013, and it was vacant in 2014 when Jeter was fired. [00:08:26] Speaker 02: In 2015, the GPO gave that position [00:08:29] Speaker 05: I have a couple of questions here. [00:08:32] Speaker 05: One is that the language that you are relying upon on Arlene was from a footnote that was clearly dictum. [00:08:43] Speaker 05: So it doesn't seem like it really has any mean that the Supreme Court considered the issue at all. [00:08:53] Speaker 05: And it wasn't dispositive in the case. [00:08:57] Speaker 05: So why, why should we hang our hat on that statement? [00:09:02] Speaker 02: So the Supreme Court was discussing reasonable accommodations in that case. [00:09:06] Speaker 02: And in footnote, they were talking about the scope of reasonable accommodations. [00:09:11] Speaker 02: That standard has been applied by a number of circuit courts. [00:09:16] Speaker 02: And the question was always, what are the employer's actual practices? [00:09:19] Speaker 02: It's discussing whether tuberculosis was a disability. [00:09:25] Speaker 02: You're correct, Your Honor. [00:09:26] Speaker 02: That was what the court was discussing in that Supreme Court case. [00:09:29] Speaker 02: But in the footnote, they were discussing what the scope of these implications were. [00:09:36] Speaker 04: It's also an ambiguous footnote, right? [00:09:39] Speaker 04: It's not just that it's [00:09:41] Speaker 04: clearly dicta, it's even on its own terms, it's ambiguous on whether reasonably available means if you have to reassign to an available for vacancy, which is what the statute says, or whether it means you might have to create a vacancy, which is inconsistent with scores of ADA decisions. [00:10:07] Speaker 02: Your honor, we're not arguing that [00:10:10] Speaker 02: This means that they have to create a vacancy that would be inconsistent with this court's decision. [00:10:15] Speaker 02: But if you ask what's reasonably available under the employer's existing policies, then you can determine what positions are available. [00:10:23] Speaker 02: The reason that's important is because positions aren't always posted on a job listing, and we have to determine. [00:10:30] Speaker 02: Sorry, Your Honor. [00:10:30] Speaker 02: So is your, no, I'm sorry. [00:10:32] Speaker 04: I interrupted you, I'm sorry. [00:10:34] Speaker 04: But is your theory, your theory is not that [00:10:39] Speaker 04: there's some duty to create a new position if reasonable, which would be a very aggressive reading of that footnote. [00:10:50] Speaker 04: Your position is a little bit more modest as I understand it, which is you still need a vacancy, but the vacancy can be informally created or available. [00:11:09] Speaker 02: Right? [00:11:09] Speaker 02: Is that fair? [00:11:11] Speaker 02: Yes, your honor. [00:11:11] Speaker 02: And that's what the evidence shows in this case. [00:11:14] Speaker 04: I encourage the court. [00:11:18] Speaker 04: The supervisor. [00:11:21] Speaker 04: The supervisor told either there are no positions and either reported that is that that's what he heard from the supervisor. [00:11:31] Speaker 04: So what is the evidence that would tend to undermine that? [00:11:37] Speaker 02: Your Honor, I would encourage you to look at Joint Appendix 152. [00:11:40] Speaker 02: That's Robinson's declaration. [00:11:42] Speaker 02: In that declaration, he swears two things. [00:11:46] Speaker 02: He swore that he accommodated Mr. Graham with a position in 2015 after Jeter was fired. [00:11:53] Speaker 02: And he also swore that he didn't create a new position in order to accommodate Mr. Graham. [00:11:59] Speaker 02: So if he didn't have to create a new position and he put someone else in that position, then that position was vacant at the time that Jeter was fired. [00:12:07] Speaker 03: So your position is you can get to the jury anytime an employer provided someone with light duty. [00:12:17] Speaker 03: That's enough to get to the jury with the argument that you're entitled to be, your client's entitled to be accommodated. [00:12:27] Speaker 02: No, Your Honor, just because an employer reasonably accommodates an employee once, [00:12:33] Speaker 02: That is on me. [00:12:34] Speaker 03: No, no. [00:12:35] Speaker 03: The question whether it is a reasonable accommodation. [00:12:38] Speaker 03: Your position is that if the employer did one time give somebody light duty, then that created a vacancy or not created a vacancy, but created a policy whereby you're entitled to get to the jury. [00:12:59] Speaker 02: No, no, Your Honor. [00:13:01] Speaker 02: Robinson said that he did not create any new positions. [00:13:06] Speaker 03: No, I'm just asking, isn't your position that there was light duty was reasonably available because it had been provided before? [00:13:15] Speaker 03: That was your position, right? [00:13:17] Speaker 02: My position in this case is that there was a vacant light duty position because the GP gave that position to another employee. [00:13:26] Speaker 03: Okay, so anytime an employer provides one person [00:13:31] Speaker 03: a light duty position, then that employer has created a vacancy, which anybody else is entitled to get, right? [00:13:41] Speaker 03: And you can get to the jury on that question. [00:13:44] Speaker 02: No, Your Honor. [00:13:45] Speaker 02: In this case, this employer had accommodated two employees with light duty. [00:13:51] Speaker 03: And then after that- You're telling me there's a distinction between one and two? [00:13:54] Speaker 02: No, Your Honor. [00:13:58] Speaker 02: And in this case, [00:14:01] Speaker 02: I'm arguing that there was a vacancy because they had a practice over eight years of assigning injured employees to a desk position in the delivery office. [00:14:13] Speaker 02: And that position was vacant in 2014 when Jeter was fired. [00:14:18] Speaker 02: I can't say whether one, two, or four is sufficient, but the case law has found that one is sufficient. [00:14:28] Speaker 02: I would direct you to the Woodman case. [00:14:31] Speaker 02: one was sufficient to create a past practice, but there's much more evidence in this case. [00:14:37] Speaker 05: So is the evidence in this case that any supervisor besides Robinson did this, or was it just with respect to Robinson, the evidence that we have here? [00:14:52] Speaker 02: The evidence is just with respect to Mr. Robinson, he personally accommodated four employees to a desk position in the delivery section of the GPO. [00:15:03] Speaker 05: So what would we do if there were evidence that there was another supervisor, Ms. [00:15:10] Speaker 05: Smith, and when she was confronted with someone who had a temporary injury, [00:15:18] Speaker 05: She never put them on life duty. [00:15:23] Speaker 05: They just simply had to wait until they could come back and be truck drivers. [00:15:31] Speaker 02: So if Ms. [00:15:31] Speaker 02: Smith had a different practice and Ms. [00:15:34] Speaker 02: Smith had never accommodated any employees, then that would suggest that a position wasn't reasonably available under the employer's existing practices. [00:15:43] Speaker 02: However, I will note. [00:15:45] Speaker 05: So it seems like then your argument [00:15:48] Speaker 05: is contention upon what a particular supervisor does, not based on what the GPOs policies are. [00:15:58] Speaker 05: And why is that problematic? [00:16:02] Speaker 02: The courts that have evaluated the Arlene standard, which is that employers, we have to look at what is reasonably available under the employer's existing policies. [00:16:12] Speaker 02: In order to do that, they look at the employer's policy and practice. [00:16:16] Speaker 02: So in some respect, we're always going to look at what the employer's actual practices are. [00:16:26] Speaker 05: But do we have any evidence here about what GPO's policies are with respect to this type of accommodation? [00:16:38] Speaker 02: So Robinson in his, in the deposition testimony, he references what appears to be some sort of formal policy. [00:16:46] Speaker 02: But to be candid, your honor, we tried to find that policy online and we couldn't find anything formally written down. [00:16:53] Speaker 02: But even in the absence of that policy, the district court characterized the evidence as unbelievably strong that the GPO had a practice of filling a date, filling a desk position with injured employees. [00:17:07] Speaker 02: And we think that [00:17:08] Speaker 02: four different parties being assigned over eight years is sufficient. [00:17:18] Speaker 05: I guess what I'm having trouble understanding here is that if your case [00:17:33] Speaker 05: is dependent upon one particular supervisor having a past practice of accommodating others. [00:17:45] Speaker 05: And then, in this case, he chooses, for whatever reason, to not accommodate Mr. Jeter. [00:17:59] Speaker 05: I think- How do we get to the point that this was disability discrimination or failure to provide? [00:18:11] Speaker 05: I guess your argument is that if he could provide the accommodation to others, it's reasonable here. [00:18:18] Speaker 05: Is that your argument? [00:18:20] Speaker 02: No, Your Honor. [00:18:22] Speaker 02: So the ADA requires that employers reassign injured employees if there is a vacant position. [00:18:32] Speaker 02: So Mr. Robinson's practice shows that there was a vacancy in the GPO's delivery section. [00:18:42] Speaker 02: A specific desk, there was a specific vacancy in the delivery section. [00:18:47] Speaker 04: Why is that? [00:18:49] Speaker 04: If the ultimate question is whether or not there was a vacancy, why would it follow that existence of a vacancy at one time implies the existence of a vacancy at all times or at other times? [00:19:10] Speaker 02: Your Honor, I'm not arguing for an implied vacancy rule. [00:19:14] Speaker 02: In this case, a position was vacant and then [00:19:19] Speaker 02: Robinson filled that position with another employee. [00:19:22] Speaker 02: So I don't think any inference is necessary there. [00:19:27] Speaker 04: And we get that just from the time sequence of when the tightness in time between when Jeter did not get the accommodation and when the next driver Graham did. [00:19:43] Speaker 02: You get this from two facts on Joint Appendix 152, Your Honor. [00:19:48] Speaker 02: The first fact is that Robinson swore that he did not create any new positions for the employees that he accommodated. [00:19:57] Speaker 02: And he accommodated Bobby Graham in 2015 with a position. [00:20:02] Speaker 02: So if he didn't create any new positions and he was able to reassign an employee to a position, that means that the position was vacant. [00:20:13] Speaker 02: because he didn't have to create a new position to reassign them. [00:20:17] Speaker 04: It might mean that someone else was doing the light work when Graham's, I'm sorry, when Jeter's situation came to a head and no one else was doing the position, doing that work when Graham's situation came. [00:20:37] Speaker 02: In Robinson's declaration, he swears that he only accommodated four employees total between 2010 and 2018. [00:20:45] Speaker 02: So given that there was only four total employees that did this work between 2010 and 2018, and no one was doing it in 2014, the fact that he was able to then accommodate Mr. Graham with the position in 2015 shows that the vacancy was available when Jeter was fired. [00:21:06] Speaker 02: and he has a right to that position under the ADA. [00:21:11] Speaker 04: What do we know about the size of relevant universes here? [00:21:19] Speaker 04: You say four accommodations in 10 years, which sounds pretty good, maybe good for you, but how many drivers are we talking about and how frequently are they injured? [00:21:32] Speaker 04: Do we have any idea what those numbers look like [00:21:36] Speaker 04: try to scope out a plausible denominator. [00:21:41] Speaker 02: So in this case, we know that four drivers were accommodated between 2010 and 2018, so about eight years in the delivery section. [00:21:51] Speaker 02: However, in this case, we also argue that the GPO failed to engage in the interactive process. [00:21:59] Speaker 02: The reason that the interactive process is so important [00:22:03] Speaker 02: is because the interactive process can then reveal other vacancies, other accommodations that the GPO could have then given to Mr. Jeter. [00:22:12] Speaker 02: But because the interactive process broke down, we couldn't identify other potential vacancies. [00:22:19] Speaker 02: We only know about this one because Jeter knew about it and we were able to ask Mr. Robinson about it. [00:22:26] Speaker 02: But the GPO is a printing company with around 1,700 employees. [00:22:30] Speaker 02: Presumably there would have been other vacancies, but we don't know that in this case. [00:22:34] Speaker 03: Council, whose fault is it that the process broke down? [00:22:42] Speaker 02: Viewed in the light most favorable to Mr. Jeter, the GPO failed to engage in the interactive process. [00:22:49] Speaker 03: What about the letter that went to his lawyer? [00:22:53] Speaker 02: So Jeter asked for a reasonable accommodation in three instances. [00:22:58] Speaker 02: And the interactive process started in November of 2013. [00:23:02] Speaker 02: And the GPO recognized that he asked for a reasonable accommodation. [00:23:09] Speaker 02: The GPO recognized this in Boyd's memo on Joint Appendix 187. [00:23:15] Speaker 02: That started the interactive process. [00:23:18] Speaker 02: And Robinson was required by the GPO's own policies to respond within 10 days. [00:23:24] Speaker 02: And he did it. [00:23:25] Speaker 02: He didn't respond until 20 days later. [00:23:28] Speaker 02: and he did so in writing, and he didn't bring up Jeter's reasonable accommodation. [00:23:33] Speaker 02: And the district court, when they looked at this question, they said that every request that Jeter made for reasonable accommodation was met with delay, obfuscation, or a request for further documentation. [00:23:46] Speaker 05: The district court was quoting Jeter's argument. [00:23:49] Speaker 05: That wasn't the district court's finding, was it? [00:23:52] Speaker 02: That's correct. [00:23:57] Speaker 06: Boom. [00:23:57] Speaker 02: I see my time has expired if there are no further questions. [00:24:01] Speaker 04: Let me just take you back to my numbers question. [00:24:04] Speaker 04: There's 1,700 employees BPO wide. [00:24:10] Speaker 02: Yes, Your Honor. [00:24:11] Speaker 02: That was information we got from a Google search. [00:24:14] Speaker 02: So approximately 1,700. [00:24:15] Speaker 04: And you said four accommodations in the delivery area. [00:24:26] Speaker 04: In the delivery. [00:24:28] Speaker 04: The delivery is the part of CPO in which Jeter worked? [00:24:35] Speaker 02: That's correct. [00:24:36] Speaker 02: And all the other employees that run it. [00:24:40] Speaker 02: Do we know how many CPO employees are in delivery? [00:24:46] Speaker 02: No, Your Honor. [00:24:47] Speaker 02: I apologize. [00:24:48] Speaker 02: I don't think that's in the record. [00:24:50] Speaker 04: Or how many CPO drivers there are in delivery? [00:24:57] Speaker 04: We just said we don't know any of those numbers. [00:25:01] Speaker 02: No, Your Honor, I apologize. [00:25:02] Speaker 02: I don't think. [00:25:04] Speaker 04: Or do we know, like what universe of people might, other than drivers, might be doing this light duty work that Graham got to do, but Jeter did not? [00:25:22] Speaker 02: Your honor, that is information that would come through the interactive process. [00:25:28] Speaker 02: The reason the ADA requires interactive process. [00:25:31] Speaker 04: Or through discovery after you file your lawsuit and try to satisfy your burden of proof. [00:25:40] Speaker 02: Yeah, that's correct, your honor. [00:25:42] Speaker 02: But we still believe that there is a trialable case here with the evidence that Jeter has. [00:25:51] Speaker 02: I see my time is expired on if there are no further questions so so. [00:25:58] Speaker 05: The concern that is raised by. [00:26:02] Speaker 05: The GPO is that. [00:26:05] Speaker 05: Essentially, if we rule for you and send this back for trial. [00:26:11] Speaker 05: we're going to create a situation here. [00:26:15] Speaker 05: even if that's a plausible kind of reading of the statute and precedent, we shouldn't go down that road because we are going to create a disincentive for people, supervisors to try to accommodate people when they can because [00:26:44] Speaker 05: someone will come along and sue when the supervisor makes a decision that it's not really either appropriate or possible to accommodate someone in this circumstance, but they're stuck. [00:27:03] Speaker 05: Even though they had no duty to accommodate [00:27:14] Speaker 05: anyone in the way that they had been doing so by assigning them the temporary light duty. [00:27:24] Speaker 05: What's your response to that policy concern? [00:27:29] Speaker 02: So I think our case is slightly different than the fact pattern that you discussed. [00:27:35] Speaker 02: In this case, they had had a light duty program and then the position became vacant. [00:27:41] Speaker 02: And then they assigned a new employee to that position. [00:27:45] Speaker 02: So just because an employer makes an accommodation one time does not mean that they're bound to do so forever. [00:27:52] Speaker 02: If Jeter or if Robinson had assigned Mr. Graham to light duty, and then he was in light duty when Jeter was fired, then the position would have been held by Mr. Graham. [00:28:06] Speaker 02: So Jeter wouldn't have had a right to it. [00:28:14] Speaker 02: The facts of this case demonstrate that there was a specific vacancy, there's a vacant desk position in the GPO's delivery section. [00:28:22] Speaker 02: So if an employer made an accommodation one time and then stopped making that accommodation, then there'd be no vacancy. [00:28:30] Speaker 02: What creates a vacancy in this case is, or the reason we know there's a vacancy in this case is because then Mr. Robinson assigned someone else to the position. [00:28:41] Speaker 05: So if we were to send the case back for a trial, what would there be for the jury to decide whether there really was a vacancy? [00:28:55] Speaker 02: Yes, your honor. [00:29:02] Speaker 05: Any other questions, Judge Katz, Judge Silverman? [00:29:05] Speaker 03: No, no questions. [00:29:08] Speaker 05: Great. [00:29:08] Speaker 05: We'll give you some time. [00:29:09] Speaker 03: Well, I know I do have one question. [00:29:12] Speaker 03: You haven't mentioned your retaliation argument. [00:29:15] Speaker 03: Is it your view the accommodation argument is stronger for you than the retaliation? [00:29:24] Speaker 02: It's hard to say, but I think they're both strong arguments for Mr. Jeter. [00:29:28] Speaker 02: I think it has to be strong. [00:29:36] Speaker 04: It has to be stronger because he didn't have the CDL. [00:29:41] Speaker 04: He couldn't have driven the truck at that point. [00:29:47] Speaker 04: So, I mean, the only thing they could have done was try to find something else for him to do. [00:29:55] Speaker 02: So there are a number of ways to conceptualize this issue. [00:29:59] Speaker 02: The ADA says that [00:30:03] Speaker 02: ADA provides a non-exhaustive list of accommodations. [00:30:08] Speaker 02: And another way to look at this is that Jeter just needed a temporary accommodation. [00:30:15] Speaker 02: In jobs, people can't do one aspect of their job for a period of time. [00:30:22] Speaker 02: And then they can focus on another aspect of their job. [00:30:27] Speaker 03: Thank you. [00:30:29] Speaker 05: In the retaliation claim, [00:30:34] Speaker 05: One of the principal arguments of the GPO and of course one of the principal findings of the district court was that there wasn't sufficient evidence to send this to the jury because temporal proximity alone wasn't sufficient in the other [00:30:59] Speaker 05: evidence that you proffered wasn't probative, namely the comparator evidence, because there wasn't enough information that any of those comparators had filed, had similar EEO or other kind of protected activity than Mr. Jeter. [00:31:22] Speaker 05: In looking at the record, why shouldn't we affirm that finding? [00:31:30] Speaker 02: Your Honor, the GPO had every reason to come forward with evidence that these other employees had filed lawsuits. [00:31:42] Speaker 02: If Robinson could provide information that these employees had filed lawsuits and then they accommodated them, that would help their position. [00:31:49] Speaker 02: So we think that because the record is silent on this point actually helps us. [00:31:54] Speaker 02: And a reasonable jury can still infer pretext, even though the GPO doesn't [00:31:58] Speaker 02: invariably fire everyone who complaints. [00:32:03] Speaker 02: So we still think that there is sufficient evidence that a reasonable jury can infer pretext. [00:32:09] Speaker 05: Well, we've held that in order for you to really be able to successfully rely on comparators, you've got to show that they compare. [00:32:20] Speaker 05: If you got nothing in the record about their EEO activity, nothing specific, [00:32:28] Speaker 05: then it seems that under our case law, they're not adequate comparators. [00:32:36] Speaker 02: First point, Your Honor, is that the comparator, there is information in the record about their protected activity. [00:32:44] Speaker 02: That's on Joint Appendix page 153. [00:32:46] Speaker 02: The comparators did file EEO complaints. [00:32:50] Speaker 02: And the Jeter and his comparators engaged in different types of protected activity. [00:32:57] Speaker 02: Jeter filed a federal lawsuit, multiple administrative complaints, and challenged the GPO at the Mary System Protection Board. [00:33:06] Speaker 02: It is self-evident that different types of protected activity are annoying to, some types of protected activity are more annoying than other types of protected activity, and a reasonable jury can look at the long contentious history between the GPO and Jeter and infer that their reason for firing him was pretextual. [00:33:27] Speaker 05: And was this argument made for? [00:33:31] Speaker 02: Yes, your honor, it's it's in it's in our opening brief. [00:33:35] Speaker 02: And then we've. [00:33:38] Speaker 02: And in our five brief, yes, that's correct. [00:33:45] Speaker 02: It's section one evaluation section, no further questions. [00:33:49] Speaker 05: Thank you. [00:33:50] Speaker 05: Thank you. [00:33:50] Speaker 05: We'll give you some time on rebuttal. [00:33:53] Speaker 05: We'll hear from Douglas Dreier for the government. [00:33:59] Speaker 01: Thank you, Your Honor. [00:34:00] Speaker 01: May it please the court. [00:34:01] Speaker 01: My name is Douglas Dreier on behalf of the US Government Publishing Office. [00:34:05] Speaker 01: The heart of this case is that Mr. Jeter failed to request reassignment to a vacant position or to proffer medical evidence to support a request for accommodation. [00:34:16] Speaker 01: Because of Mr Jeter's failure to maintain a commercial driver's license, he could not perform the essential function of his job as a motor vehicle operator. [00:34:25] Speaker 01: and he was ultimately terminated by the GPO. [00:34:28] Speaker 01: Where I'd like to start is with the formal policy GPO has, which is in the joint appendix at page 122. [00:34:35] Speaker 01: This was an attachment to the December 2013 letter that GPO provided to Mr. Jeter when it was seeking clarification to determine whether he was indeed requesting an accommodation. [00:34:49] Speaker 01: In that letter, [00:34:51] Speaker 01: The attachment shows that GPO's official policy is that reasonable accommodation does not include creating a new job. [00:34:59] Speaker 01: Now, what we've heard a lot here from my friend is talk about whether GPO could have created a new job for Mr. Jeter because GPO shuffled some job responsibilities around for other individuals when they were temporarily injured. [00:35:20] Speaker 01: there is no evidence of any vacancy. [00:35:23] Speaker 01: And what was argued before the district court was that there was an implied vacancy and that GPO needed to put Mr. Jeter in that position because it had accommodated other people in the past. [00:35:38] Speaker 01: That type of argument leads to serious policy concerns with the ADA. [00:35:44] Speaker 01: because it would make employers think twice before going above and beyond their obligations under the ADA when accommodating other individuals. [00:35:55] Speaker 05: How is it really going to create any problem for the GPO when, according to your friend on the other side, the GPO has a policy, I guess, per the OPM, which they are part of, that reasonable accommodations can include temporary-like duty assignments? [00:36:23] Speaker 05: So OPM already says temporary light duty assignments is a reasonable accommodation and that's all he was asking for. [00:36:36] Speaker 01: So GPO does permit, does have temporary light duty program and Mr. Jeter received light duty seven to eight times. [00:36:46] Speaker 01: That's noted in Mr. Robinson's deposition transcript. [00:36:50] Speaker 01: What we're dealing with here though wasn't a request for temporary light duty. [00:36:56] Speaker 01: What Mr. Jeter has testified during the course of this litigation is that he wanted transfer to a desk job permanently because he believed his disability was permanent even though Dr. Dorn's September 2012 report had noted that his disability had ceased as of the time of that examination. [00:37:15] Speaker 05: Is that fact undisputed counsel because isn't [00:37:18] Speaker 05: their evidence in the summary judgment record that he wanted temporary light duty until he could get his CDL. [00:37:28] Speaker 01: It's undisputed in the form of Mr. Jeter's testimony in his deposition transcript in which he said three times that he wanted transfer to a desk job. [00:37:40] Speaker 05: Permanently. [00:37:42] Speaker 01: Yes. [00:37:43] Speaker 01: Now one thing we've heard from my friend is a discussion about when Mr. Jeter regained his CDL. [00:37:50] Speaker 01: That occurred in November 2017. [00:37:54] Speaker 01: What we were looking at with Mr. Jeter's deposition transcript there was his regaining of his learner's permit. [00:38:05] Speaker 01: And what's [00:38:06] Speaker 01: Interesting about that, and that's on page 108 of the joint appendix, is the very next sentence after the question that was read in the first half of this argument was a question saying, and that meaning Mr. Jeter regaining his learner's permit for a CDL, that was based on you having said that you had no chronic low back pain and no narcotic or habit forming drug use to correct. [00:38:35] Speaker 01: His answer is I don't remember, but the application is in the record at ECF number 55-21 and shows that Mr. Jeter wrote on his learner's permit application that he had no chronic low back pain. [00:38:52] Speaker 01: And so he's submitted an application [00:38:58] Speaker 01: calling into doubt the permanency of his injury. [00:39:03] Speaker 01: But what we saw in the reply brief is that, again, they go back to the language in Dr. Doran's September 2012 letter regarding whether the back injury was permanent. [00:39:12] Speaker 01: And so they're really emphasizing that they're viewing this as a permanent injury. [00:39:16] Speaker 01: And there's a tension there between viewing this as a permanent injury [00:39:22] Speaker 01: and claiming that Mr. Jeter was just requesting temporary light duty. [00:39:27] Speaker 01: Now at this point in late 2013, Mr. Jeter had effectively been not working in his job since approximately March 2009 with a couple of days in between where he would go in and then not do his job. [00:39:45] Speaker 01: And so he was on paid administrative leave during that time. [00:39:50] Speaker 01: Now that's a lengthy time period that he's now saying he wants to extend even further with a transfer to a desk job. [00:39:58] Speaker 01: And that's really the part of what I think is critical is just the timeline of how much GPO had accommodated this individual over the history. [00:40:08] Speaker 01: And so when they then ask him, when it seems like perhaps he is trying to make a request for accommodation, they ask him for clarity. [00:40:16] Speaker 01: They ask him, what is it you want? [00:40:18] Speaker 01: They ask him to provide medical documentation to support it if that is what he wants. [00:40:23] Speaker 01: And he doesn't do that. [00:40:26] Speaker 01: What he does instead is he, in this litigation, disputes ever receiving the December 16, 2013 letter. [00:40:35] Speaker 05: But he also says that he had conversations with Robinson where he said, I want an accommodation. [00:40:43] Speaker 05: I want temporary light duty. [00:40:45] Speaker 05: That's what he says in affidavits that are attached to the summary judgment. [00:40:55] Speaker 05: So that is supposed to do with that. [00:40:58] Speaker 01: Well, that's correct. [00:40:59] Speaker 01: And so he says that in early January 2014, he had that conversation with Mr. Robinson, that Mr. Robinson said, OK, if that's what you want, put in for it. [00:41:11] Speaker 01: Give us medical documentation to support it. [00:41:14] Speaker 01: And still he doesn't. [00:41:15] Speaker 01: And so even when you go to March 2014. [00:41:18] Speaker 05: I thought his testimony was that he was never told by Mr. Robinson that the documentation that he already had [00:41:28] Speaker 05: meaning the Doran letter from September 2012, he was never told that that letter was insufficient, that that documentation was insufficient. [00:41:39] Speaker 01: Well, I would say that that would be contradicted by the December 16, 2013 letter, which explicitly requested more medical documentation. [00:41:48] Speaker 05: So there is the- It doesn't say more medical documentation. [00:41:51] Speaker 05: It says documentation of your disability. [00:41:55] Speaker 05: So somebody reading that, [00:41:57] Speaker 05: Why wouldn't they think, okay, well, I've given that to you because I gave you the Doran letter from September 2013? [00:42:10] Speaker 01: Well, I think that's the natural reading, but putting that aside, if you go to the March 2014 oral reply, there Mr. Jeter explicitly says that he should have had more medical documentation, that he should have brought medical documentation with him, and he didn't do it. [00:42:28] Speaker 01: And so even months later, even when giving his oral reply there, he still had not provided that. [00:42:37] Speaker 01: And after that, okay, perhaps the natural inclination would have been, well, I'll go get the medical documentation and I'll go provide it. [00:42:46] Speaker 01: Mr. Jeter did submit an untimely written reply and still he did not provide medical documentation when there was no doubt at that point, certainly on March 10, 2014 when he gave his oral reply, that he needed to provide additional medical documentation. [00:43:03] Speaker 05: So what about the policy for accommodation that was attached [00:43:10] Speaker 05: to that December, 2013 letter. [00:43:14] Speaker 05: And I'm looking at page JA 126. [00:43:18] Speaker 05: And it says that when the employee initiates the accommodation process, then the supervisor has to respond within 10 days. [00:43:34] Speaker 05: And then the supervisor [00:43:37] Speaker 05: is supposed to prepare a memo that the employee signs and sends to personnel or the EEO office. [00:43:54] Speaker 05: I guess what I'm getting at is the appellant says that [00:43:59] Speaker 05: What he did was sufficient to require Robinson to have done more and that Robinson didn't comply with the policy. [00:44:09] Speaker 05: So if you're going to fault a pallet for not doing everything he should have, you should similarly fault Robinson or GPO for not doing everything they were supposed to. [00:44:23] Speaker 01: And your honor in response to that I'd refer to the paragraph at the top of the page there, which says, if it is unclear whether an individual is requesting an accommodation clarification should be sought. [00:44:35] Speaker 01: That's the antecedent question here was whether he was indeed requesting an accommodation, and so that is exactly what happened. [00:44:43] Speaker 01: is GPO sent the December 16, 2013 letter requesting clarification whether he was requesting an accommodation. [00:44:52] Speaker 01: We didn't get to this, the paragraph two below, because we hadn't crossed that hurdle yet. [00:45:00] Speaker 05: So suppose we agree with you and we believe that the process broke down and it was the appellant's fault before it breaking down. [00:45:14] Speaker 05: Does that dispose of, is that sufficient in and of itself to dispose of both the ADA claim and the retaliation claim? [00:45:29] Speaker 01: I think this was briefed more in the context of the failure to accommodate claim. [00:45:33] Speaker 01: It would certainly dispose of the accommodation claim. [00:45:36] Speaker 01: I think the retaliation claim fails separately and I noticed that the opening brief from my friend across the aisle tried to make the issue applied to both claims, which wasn't really the way it was briefed. [00:45:53] Speaker 01: but below at the district court level. [00:45:56] Speaker 01: Certainly it makes it more sense. [00:46:01] Speaker 01: It makes it even more understandable why GPO did what it did because there wasn't, because there was this breakdown from Mr. Jeter in the process. [00:46:12] Speaker 03: The post council GPO had told Mr. Jeter that we would normally [00:46:24] Speaker 03: We have in the past provided drivers who were injured with light duty jobs, but we don't like you. [00:46:36] Speaker 03: So we're not going to provide it for you. [00:46:42] Speaker 03: So what response? [00:46:47] Speaker 01: So if the reason had nothing to do with any protected activity, I don't think that would give rise to liability. [00:47:01] Speaker 01: I do think what we have here is so a big difference between the accommodations that were provided to the four individuals mentioned in the Robinson Declaration on page 152 of the Joint Appendix. [00:47:14] Speaker 01: and what it is that Mr. Jeter was requesting here. [00:47:18] Speaker 01: And sometimes it seems like this is being a little collapsed in this discussion, but there were these four individuals, Monique Jones, Marvin Jones, Bobby Graham, and Robert Corbyn. [00:47:31] Speaker 03: First, I'm talking about retaliation now, right? [00:47:34] Speaker 01: Right. [00:47:34] Speaker 03: I'm giving you a hypothetical. [00:47:37] Speaker 03: And your answer is that would not be that would not be retaliation unless it was linked squarely [00:47:43] Speaker 03: to protected activity, not because you're a no good SOB. [00:47:49] Speaker 01: Right. [00:47:51] Speaker 01: That is correct, Your Honor. [00:47:56] Speaker 01: And where I was going separately was just the Robinson Declaration shows that these four individuals were not assigned to a clerical desk job type position. [00:48:09] Speaker 01: They just had their duty shuffled. [00:48:11] Speaker 01: so that they were on light duty, taking care of light duty tasks. [00:48:15] Speaker 01: They weren't slotted into a desk job position. [00:48:18] Speaker 01: What it says on page 153 of the Joint Appendix is that there was a clerical position at this time, and it was held by Phyllis McKelvin. [00:48:28] Speaker 01: And so Phyllis McKelvin was holding that job up till 2015 when the job was eliminated. [00:48:35] Speaker 01: Now there was another individual who had held a similar position that had been eliminated in 2012. [00:48:42] Speaker 01: GPO had not filled that. [00:48:45] Speaker 01: But there isn't a vacancy in a clerical position at this time. [00:48:51] Speaker 01: That's not what Robinson's declaration is saying. [00:48:56] Speaker 01: So it's not the case that [00:48:59] Speaker 01: They could that GPO had a position to fill here and something just helpful in the background is that this is at a time when GPOs workforce has been shrinking at GPOs height. [00:49:12] Speaker 01: It had about 8,500 employees, as my friend correctly said. [00:49:18] Speaker 01: Nowadays, its workforce is much smaller than that. [00:49:20] Speaker 01: It's in the 1,300 to 1,750 range. [00:49:25] Speaker 01: And it has been contracted. [00:49:27] Speaker 01: And so that's why positions of like when Sammy Arthur's position was eliminated in 2012, it wasn't filled again. [00:49:34] Speaker 01: There's no evidence of a vacant position that Mr. Jeter could have been assigned to. [00:49:41] Speaker 05: I guess I'm trying to understand your argument about what happened with others who had some sort of temporary disability or injury. [00:49:54] Speaker 05: You're saying that they didn't necessarily get a desk job. [00:49:58] Speaker 05: They got some sort of light duty where maybe their duties were kind of shuffled around so that they would be able to [00:50:09] Speaker 05: you know, avoid having to do anything that would implicate their disability or their injury. [00:50:20] Speaker 05: I'm trying to understand what difference that makes here. [00:50:26] Speaker 05: I mean, isn't Jeter's argument, then fine. [00:50:29] Speaker 05: If that's what you want to call it, then call it that. [00:50:33] Speaker 05: Just give me that. [00:50:34] Speaker 05: That's all I wanted. [00:50:35] Speaker 05: I wanted some sort of an accommodation. [00:50:39] Speaker 01: So in response to that, Your Honor, I'd point to paragraph five of the Robinson Declaration on page 152 of the Joint Appendix. [00:50:47] Speaker 01: He says there were no vacant positions that were filled and no temporary positions created for these employees. [00:50:54] Speaker 01: So the evidence in the record is that these individuals were not reassigned to other positions. [00:50:59] Speaker 01: They had their duties shuffled. [00:51:00] Speaker 01: Now, the why that matters is that it is Mr. Jeter's burden in litigation. [00:51:08] Speaker 01: to demonstrate that there is a vacancy to which he could have been reassigned. [00:51:13] Speaker 01: And the Acca case makes that point. [00:51:18] Speaker 01: This is really, in Acca, there's an entire dispute. [00:51:21] Speaker 01: This was an antecedent question to Acca too. [00:51:23] Speaker 01: Everyone recognized that there needed to be [00:51:26] Speaker 01: a vacancy in order for an employee to be reassigned to it. [00:51:33] Speaker 01: And so this matters because this shows that these positions weren't vacancies and these aren't examples of Mr. Robinson creating a new job for someone as an accommodation. [00:51:54] Speaker 03: I don't have any further questions. [00:51:57] Speaker 05: All right, Judge Katz, any further questions? [00:52:01] Speaker 05: Nor do I. Thank you. [00:52:03] Speaker 05: All right. [00:52:04] Speaker 05: Thank you. [00:52:04] Speaker 05: Mr. Hearst, we'll give you two minutes for rebuttal. [00:52:11] Speaker 02: Thank you, Your Honor. [00:52:12] Speaker 02: The first point I want to make is that it is disputed whether Geter was requesting a permanent reassignment. [00:52:19] Speaker 02: I would point you to joint appendix page 110. [00:52:23] Speaker 02: That is Geter's [00:52:25] Speaker 02: declaration and it shows that he was requesting temporary desk work. [00:52:31] Speaker 02: My second point is about the interactive process. [00:52:35] Speaker 02: I want to talk about November of 2013. [00:52:39] Speaker 02: GPO knew that he was requesting a reasonable accommodation. [00:52:43] Speaker 02: Their own memo demonstrates that. [00:52:45] Speaker 02: I would encourage your honor to look at page 187. [00:52:50] Speaker 02: After the meeting, they said, we know he wanted to transfer to a desk position. [00:52:54] Speaker 02: And that's in Boyd's memo. [00:52:56] Speaker 02: So the fact that they never responded to his request for reasonable accommodation within 10 days shows that they broke their own policies. [00:53:05] Speaker 02: And as a district court noted, there is no evidence that they ever talked about a reasonable accommodation despite three requests. [00:53:17] Speaker 02: And the formal policy makes clear that if they wanted additional medical information, [00:53:22] Speaker 02: It should come from the occupational health division after the supervisor had responded in writing. [00:53:28] Speaker 02: And that is when a form 38, form 838 has been prepared and the chief medical officer had made an evaluation. [00:53:36] Speaker 02: That point is on joint appendix 126 to 127. [00:53:40] Speaker 02: We never got anywhere near that because there is no evidence they ever talked about a reasonable accommodation. [00:53:45] Speaker 02: And that is a breakdown of the interactive process. [00:53:49] Speaker 03: Thank you, your honors. [00:53:52] Speaker 03: comment, it seemed to me the University of Virginia group, without regard to the merits of the case, did an excellent job in the brief. [00:54:03] Speaker 00: Oh, thank you very much, Your Honor. [00:54:05] Speaker 06: We appreciate the opportunity. [00:54:07] Speaker 05: Yes, I would wholeheartedly confirm that the court appointed you, and you acquitted yourselves very well. [00:54:14] Speaker 05: Thank you. [00:54:16] Speaker 02: Thank you, Your Honors. [00:54:17] Speaker 05: We'll take the case under advice.