[00:00:51] Speaker 05:
We will hear argument next in number 146001, Katsouros against Office of the Architect of the Capitol.

[00:01:34] Speaker 05:
Mr. Lee, please come up.

[00:01:39] Speaker 04:
Good morning, Your Honor.

[00:01:40] Speaker 05:
Good morning.

[00:01:41] Speaker 04:
May it please the Court, on behalf of Appellant Mr. Katsouris, we move the Court for a reversal of the decision in Katsouris 2 and of the, made by the Board, reversing the hearing officer's decision to finding discrimination in Katsouris 2.

[00:02:05] Speaker 04:
If your honor, please, uh, the foundation document for the appellant's brief is the decision of the, uh, hearing officer in, uh, Katsoris one and Katsoris two is joined by the order of the board, uh, a previous order of the board, uh, pursuant to the interrelationship, uh, of the two cases and pursuant to the fact that Mr. Katsoris was the plaintiff complainant in both cases.

[00:02:33] Speaker 04:
In reading the foundation document, as we refer to it, it can be noted that with respect to Consoros 1, which was affirmed by the board and which was now exceeded to by respondent AOC by virtue of its withdrawing its 14-6002 appeal, a companion case in this matter, as conceded,

[00:03:00] Speaker 04:
A close reading of it will show that the hearing officer kind of developed or looked at the facts in the matter and developed or established somewhat of a paradigm for both cases, in which he said that what was important was notification that the complainant had an ADA-qualified disability.

[00:03:23] Speaker 04:
that there was notification that there was suffering from a new episode of the bipolar disability and the mental impairment that was associated with the bipolar disability, that there was a nexus between the bipolar disorder and impairment of thinking resulting from, and that there was a triggering effect to implement 42 U.S.

[00:03:49] Speaker 04:
Code 12.1.12.B.5.

[00:03:52] Speaker 04:
of the ADA.

[00:03:54] Speaker 04:
That was what the hearing officer based his finding in Katsouris 1 on, which was affirmed again and was exceeded to by the respondent AOC.

[00:04:09] Speaker 04:
In Katsouris 2, the hearing officer somewhat replicated the same paradigm that he used in Katsouris 1, in effect saying that they had knowledge of the fact that he had a bipolar disorder with a mental impairment of thinking.

[00:04:24] Speaker 04:
that the AOC was aware of the new episode by virtue of the late testimony of Wally Reed, which was accepted by Respondent AOC and by the Respondent Board in affirming Katsouris won the late person testimony that Mr. Katsouris was in a breakdown and was dysfunctional, mentally dysfunctional.

[00:04:46] Speaker 04:
That there was a nexus between them, which is

[00:04:50] Speaker 04:
Again, identified by the hearing officer within this foundation document of his decision, showing that the AOC was aware that there was a correlation between his disorder, his mental impairment, and his absences, which were the cause of his problems in terms of attendance.

[00:05:14] Speaker 04:
And that there was this, again, triggering event, which was the request

[00:05:19] Speaker 04:
for accommodation at the time of the termination hearing, the chapter 72 termination hearing, whereby his personal representative at that time requested a postponement because he was impaired in terms of thinking and mentally dysfunctional.

[00:05:37] Speaker 06:
Mr. Lee?

[00:05:38] Speaker 04:
Yes, sir.

[00:05:39] Speaker 06:
Did you have your brief that you wrote, the blue brief?

[00:05:43] Speaker 06:
Yes, sir.

[00:05:47] Speaker 06:
And your bullet there is 21.

[00:05:50] Speaker 01:
Yes, sir.

[00:05:52] Speaker 06:
You say to us that your client hadn't been released to return to duty as of January 28.

[00:06:02] Speaker 04:
I was incorrect in writing that, Your Honor.

[00:06:06] Speaker 06:
Well, I understand that.

[00:06:07] Speaker 06:
And at several other places in your brief, you suggest that there had been no release to return to duty.

[00:06:16] Speaker 04:
I was incorrect at all times.

[00:06:18] Speaker 04:
There was a release to return to duty.

[00:06:20] Speaker 06:
I'm trying to draw your attention to that.

[00:06:21] Speaker 06:
That's an A298 in the record, which is Dr. Pope's letter dated January 9.

[00:06:31] Speaker 06:
Said that he's able to return to employment.

[00:06:36] Speaker 06:
And I didn't see that you came to grips at all with that statement by Dr. Pope in your brief.

[00:06:46] Speaker 04:
I was incorrect in not addressing that.

[00:06:50] Speaker 06:
Isn't that the sort of elephant in the room here?

[00:06:54] Speaker 04:
That would be considered the elephant in the room, because of the fact that, according to the case law... Why don't we take it one step at a time?

[00:07:07] Speaker 06:
If you look at the decision by the full board,

[00:07:11] Speaker 06:
the one that you complained to.

[00:07:15] Speaker 06:
The board is saying, this is on page six of the board's decision, there's no evidence in the record.

[00:07:21] Speaker 06:
This is with regard to Katzeros II.

[00:07:25] Speaker 06:
There's no document of any medical disability that would have prevented him from complying with leave procedures.

[00:07:32] Speaker 06:
It seemed to me that that statement, no medical disability, would have prevented him as relying on Dr. Pope's January 9 order.

[00:07:44] Speaker 04:
If I might address both of your issues and this issue of the attendance.

[00:07:49] Speaker 04:
I find it difficult to correlate, to rectify the absence of FMLA issues with the discussions in both respondents' briefs with FMLA issues and FMLA regulations brought up about what can and cannot

[00:08:13] Speaker 04:
be done and what must be done in terms of complying by an employee with FMLA regulations.

[00:08:23] Speaker 06:
But aren't we talking about an ADA problem with regard to the May termination hearing?

[00:08:28] Speaker 04:
Yes, sir.

[00:08:29] Speaker 06:
But isn't that really what's at stake in this appeal?

[00:08:32] Speaker 04:
If I may talk to these issues, the issue is whether or not, I think the paramount issue is whether or not

[00:08:41] Speaker 04:
irrespective of the attendance issue and irrespective of the medical issue is when the respondent AOC having a history of knowledge of the disorder, having a history of knowledge of the serious medical condition, must stop the hearing and then engage in the interactive process.

[00:08:59] Speaker 04:
Now that interactive process is determined by the fact that he is told by the layperson witness

[00:09:07] Speaker 04:
that Mr. Katsouris is mentally dysfunctional at this time.

[00:09:12] Speaker 04:
The courts have said that even if a plaintiff was not complying with the requirements of attendance, the court, meaning the hearing officer and or the board, must still determine whether it is uncontested that plaintiff's absences could not be reasonably accommodated.

[00:09:27] Speaker 04:
Those absences could have been reasonably accommodated had there been a postponement and had they engaged in an interactive process.

[00:09:36] Speaker 04:
And I would cite there the Williams Hospitality Group 8.

[00:09:40] Speaker 06:
Can I point to one other thing that troubled me on the record that I don't think you addressed in your brief?

[00:09:46] Speaker 06:
If you look at page 34 of the joint appendix,

[00:09:57] Speaker 06:
This is the hearing officer's decision.

[00:10:01] Speaker 01:
Yes, sir.

[00:10:02] Speaker 06:
And in the second full paragraph on that page, there's a finding of fact by the hearing officer that your client didn't offer through testimony or medical evidence an accommodation that would have allowed him to overcome the problem.

[00:10:20] Speaker 06:
That seemed to me to sort of be the second elephant in the room.

[00:10:24] Speaker 06:
But that absence that you're showing, it seems to me that you can't even get an ADA claim going.

[00:10:31] Speaker 04:
I would respectively disagree with the court by saying that when the request... With the court or with his fact finding?

[00:10:39] Speaker 04:
With his fact finding necessarily and with your interpretation of the fact finding.

[00:10:44] Speaker 04:
The investigative and interactive process starts

[00:10:51] Speaker 04:
when under 42 USC 12.1.12 when the request is made.

[00:10:58] Speaker 04:
Now if he makes a request to say postpone the hearing and that request is necessarily rejected, not outright, but rejected by default because they proceed with the hearing, then something must be done and there has to be some kind of interactive process to necessarily discuss what other type of

[00:11:19] Speaker 04:
an accommodation can be made.

[00:11:21] Speaker 04:
It's just simply not disregarded and not continue with the hearing and then everything that flows from the hearing.

[00:11:30] Speaker 04:
That is why the attendance issues is necessarily irrelevant when it comes to the factor of whether or not something, there was a, I can't think of the word, apologize.

[00:11:46] Speaker 04:
whether or not there was an interactive process ended into.

[00:11:50] Speaker 04:
That's what the hearing officer found.

[00:11:52] Speaker 04:
The board relies on, does not dispute necessarily what the hearing officer finds.

[00:11:59] Speaker 04:
The board adds these other two factors saying that he never complied with the attendance policies and never provided a medical record and never requested reasonable accommodation or modification of it.

[00:12:15] Speaker 04:
But he's not given that opportunity because the door is shut by the fact that, yes, we're going to go on with the hearing.

[00:12:22] Speaker 04:
They had the knowledge of it going right up to the termination date and did not get involved in the interactive process.

[00:12:32] Speaker 04:
And then they had the knowledge by the WH380, the last one of June 2008, which was consistent with the first one of September 2006.

[00:12:43] Speaker 04:
The fact that

[00:12:45] Speaker 04:
At the hearing, something is not necessarily put on the table that at that moment is reasonable or unreasonable in terms of a postponing of the hearing is not necessarily the issue.

[00:12:58] Speaker 04:
The issue is what do you do when somebody makes that claim having knowledge of the prior history?

[00:13:04] Speaker 04:
This is not a tabula rosa in terms of mysticasaurus.

[00:13:14] Speaker 04:
There's a history.

[00:13:18] Speaker 05:
Mr. Leib, you're well into your rebuttal time.

[00:13:21] Speaker 05:
I understand.

[00:13:22] Speaker 05:
If you want to save the half minutes, we'll hear from the other side.

[00:13:29] Speaker 05:
Mr. Zeddy.

[00:13:42] Speaker 05:
And you're representing which one?

[00:13:45] Speaker 05:
The Office of the Architect of the Capitol, Your Honor.

[00:13:48] Speaker 00:
Good morning, Your Honors, and may it please the court, Imran Zedi for the co-respondent, the Office of the Architect of the Capitol, the employer in this matter.

[00:13:55] Speaker 00:
And Your Honor, just to be clear at the outset, we'll be splitting our time.

[00:13:58] Speaker 00:
We've taken eight minutes, and we're splitting the remaining seven minutes will be for the Office of Compliance.

[00:14:03] Speaker 05:
Can you address the question of the non-postponement of the May 2008 hearing, which I'm

[00:14:12] Speaker 05:
I don't recall there being much, if anything, said in your brief about it.

[00:14:18] Speaker 00:
Well, yes, Your Honor.

[00:14:19] Speaker 00:
There's actually not much, if anything, in the record either to suggest that that request was made and what the nature of that request was.

[00:14:26] Speaker 00:
It's unclear from petitioners' arguments whether they were lodging an ADA claim with respect to the termination based on a postponement of the hearing or based on the actual termination itself.

[00:14:37] Speaker 00:
It's entirely unclear.

[00:14:38] Speaker 00:
Well, let's assume both.

[00:14:40] Speaker 00:
If there was a request, then that would have engaged in some duty on the part of the Office of the Architect to figure out whether he could be accommodated, as with the first ADA claim with the suspension in November, December of 2007.

[00:14:58] Speaker 00:
But he would still need to, at some point, have identified a reasonable accommodation that would have enabled him to participate or to work

[00:15:07] Speaker 05:
At any point, that is a reasonable accommodation that would have allowed him to do his job or a reasonable accommodation that would have allowed him to participate in the hearing?

[00:15:20] Speaker 05:
Well, it depends, of course, on which one of the violations were.

[00:15:22] Speaker 05:
But just talk about the hearing.

[00:15:23] Speaker 00:
Asked to the hearing itself, and that's similar to the hearing in December of 2007, it would be a reasonable accommodation that could allow him to participate in the hearing.

[00:15:33] Speaker 05:
But in order to say you are accepting the proposition that the ADA requirements apply to the hearing holding, which I think there's at least some discussion in some judicial opinions about whether that is the case.

[00:15:54] Speaker 00:
That's true, Your Honor.

[00:15:54] Speaker 00:
And that was, of course, the basis of the ADA violation found by the Office of Compliance with respect to the suspension in December of 2007.

[00:16:03] Speaker 00:
that he was not accommodated in that capacity, allowing him to participate in the hearing.

[00:16:09] Speaker 00:
But that request was supported by evidence.

[00:16:13] Speaker 00:
In this case, the relevant period for the termination is effective in May of 2007, all the way up until June of 2008, at which point his termination was finalized.

[00:16:25] Speaker 00:
And the last six months of that period, which is when he would have returned from his 10-day suspension, all the way until June of 2008,

[00:16:31] Speaker 00:
there is no evidence to suggest, no medical evidence or otherwise to suggest that he was in any way incapacitated or unable to work.

[00:16:40] Speaker 02:
So the last doctor's note that we have is the one on January 9, 2008, saying that he's ready to return to work?

[00:16:49] Speaker 00:
No, Your Honor, there is also a doctor's note from June of 2008, but that note simply says that in June of 2007, his condition started

[00:16:58] Speaker 00:
and that specific time he is able to work in January 2008.

[00:17:01] Speaker 06:
Do you rely at all on the January 9 letter?

[00:17:04] Speaker 06:
Pardon me, Your Honor?

[00:17:05] Speaker 06:
Do you rely at all, put any reliance on the January 9 letter from Dr. Pope?

[00:17:11] Speaker 00:
We absolutely do, Your Honor.

[00:17:12] Speaker 00:
We rely on that for the proposition that when he was supposed to attend work starting in January of 2008,

[00:17:19] Speaker 00:
He was able to, medically, and that's the last evidence that the architect had.

[00:17:23] Speaker 06:
Do you treat this as sort of, in essence, resetting the ADA clock?

[00:17:27] Speaker 00:
We certainly do, Your Honor.

[00:17:28] Speaker 00:
We do.

[00:17:30] Speaker 06:
So you would say that after you treat the January 9 letter as a clean bill of health, meaning he can come back to work, he no longer has an ADA compliant disability.

[00:17:40] Speaker 06:
He has to come in and show he has one, and then make a request for accommodation.

[00:17:44] Speaker 00:
That's correct.

[00:17:45] Speaker 00:
And that's because the actual duty to accommodate must be triggered by a request.

[00:17:50] Speaker 00:
And now this isn't a sort of formalistic requirement.

[00:17:53] Speaker 00:
It doesn't require any certain incantation of magic words.

[00:17:56] Speaker 00:
But it does, at bare bones, require that an employee identify that he has a disability and that he desires an accommodation.

[00:18:03] Speaker 06:
And pending request for accommodation from December 12, right?

[00:18:07] Speaker 06:
Mr. Wallace reads.

[00:18:09] Speaker 00:
I believe you mean December 12th.

[00:18:12] Speaker 06:
December 12th, right.

[00:18:14] Speaker 06:
But your view would be that that too is sort of wiped clean by the January 9th letter from Dr. Poe.

[00:18:23] Speaker 00:
That's exactly right, Your Honor.

[00:18:25] Speaker 06:
Our position is that even if there had been a prior indication of disability, which we do not... Let me come back and let's turn to the letter of January 9th, 1898, the record.

[00:18:37] Speaker 06:
It says that now we know that about a month earlier the same doctor had sent in a medical declaration saying this person has bipolar disorder.

[00:18:47] Speaker 06:
He's really not in very good condition at all.

[00:18:49] Speaker 06:
His medication isn't working effectively.

[00:18:52] Speaker 06:
We need to work on the medication.

[00:18:54] Speaker 06:
He couldn't possibly return to work, right?

[00:18:58] Speaker 06:
And then we have less than a month later this letter from Dr. Pope, right?

[00:19:04] Speaker 00:
Correct.

[00:19:05] Speaker 06:
Now, this letter wasn't at all discussed in the board decision, nor was it even recognized by the hearing examiner, right?

[00:19:14] Speaker 00:
Your Honor, it was referenced in the board decision.

[00:19:16] Speaker 00:
And I can pull that up if you want.

[00:19:20] Speaker 00:
What was referenced is that he showed up to work on January 14, 2008, apparently able to work.

[00:19:26] Speaker 00:
I do not recall if he explicitly mentioned the actual medical clearance.

[00:19:29] Speaker 00:
I don't think he mentioned the letter.

[00:19:35] Speaker 00:
6 of the Joint Appendix.

[00:19:38] Speaker 00:
It reads, under the ADA violation, there's the second full paragraph under the ADA violation.

[00:19:43] Speaker 00:
There's no record evidence that Katsouris made a request for leave or followed the AOC's leave procedure during his absence.

[00:19:48] Speaker 00:
The evidence shows that Katsouris returned to the office on January 14th, presumably ready to work after having been out on leave since November.

[00:19:55] Speaker 06:
He doesn't even refer to the doctor.

[00:19:57] Speaker 06:
So it doesn't explicitly refer to the doctor.

[00:19:58] Speaker 06:
Let me go back to the doctor's list.

[00:20:00] Speaker 00:
Yes.

[00:20:00] Speaker 00:
The January 9th.

[00:20:02] Speaker 06:
January 9th says he is

[00:20:03] Speaker 06:
Able to return a customary employment.

[00:20:07] Speaker 06:
Customary employment, could it not be interpreted to mean the employment that he was enjoying before he left and to which he's going to return?

[00:20:19] Speaker 00:
It could, Your Honor, but what would that be in this case?

[00:20:21] Speaker 06:
And that would have been ADA disabled employment, subject to a pending request for accommodation.

[00:20:27] Speaker 00:
Well, no, Your Honor, this is where it's important to clarify that his ADA request

[00:20:32] Speaker 00:
as to his suspension hearing in December 2007.

[00:20:36] Speaker 00:
The request for an accommodation was not to enable him to return to work.

[00:20:41] Speaker 00:
It was for the sole purpose of allowing him to participate in that hearing.

[00:20:46] Speaker 06:
And this is why we are trying to very clearly... What I'm wondering is why that particular request for accommodation doesn't apply to May.

[00:20:54] Speaker 06:
If what the doctor was saying is you can go back to work in your customer employment, that is to say you can go back as a person who has bipolar disorder that may be managed OK now under medication, but you are still disabled.

[00:21:10] Speaker 00:
Correct.

[00:21:11] Speaker 00:
Well, to be clear, he had been disabled, Your Honor, and the office is aware of that, from even a year earlier.

[00:21:15] Speaker 00:
But at no point during that period had he submitted that he was actually incapacitated based on it.

[00:21:20] Speaker 00:
But to your point,

[00:21:21] Speaker 00:
In December of 2007, the Office of the Architect receives the first request saying that for three months, he'll be incapacitated.

[00:21:28] Speaker 00:
And then in January, he's medically cleared.

[00:21:30] Speaker 00:
And I believe your point, Your Honor, is that it says customary employment at that point.

[00:21:34] Speaker 00:
And so you're sort of reading the two medical certifications together to say customary employment might be whatever was requested in that first medical certification in December.

[00:21:45] Speaker 00:
And our point is simply that that certification was solely to allow him to participate in a disciplinary hearing.

[00:21:51] Speaker 00:
And the reason we make not to return to work.

[00:21:54] Speaker 00:
What certification date?

[00:21:55] Speaker 00:
This is the December 9.

[00:21:57] Speaker 00:
The date of the certification, I believe, is November 28, 2007.

[00:22:02] Speaker 00:
And this is on page's page.

[00:22:05] Speaker 06:
I'm missing something on the certification.

[00:22:07] Speaker 00:
This is on page 58 to 61 of the Joint Appendix, the medical certification that is dated November 28, 2007.

[00:22:14] Speaker 00:
Yeah.

[00:22:16] Speaker 00:
It says, and this is on page 61,

[00:22:22] Speaker 00:
currently not capable, maybe capable in, say, three months.

[00:22:26] Speaker 05:
Of what?

[00:22:29] Speaker 00:
Capable of?

[00:22:29] Speaker 00:
It literally says currently not capable.

[00:22:31] Speaker 00:
There's nothing more.

[00:22:33] Speaker 00:
So at that point, this had been submitted in December of 2007, but it was dated November 28, 2007.

[00:22:40] Speaker 00:
Our contention is that once the medical clearance in January, saying that he was fully able to return to work, was submitted, at that point,

[00:22:48] Speaker 00:
he would have needed to submit a new request for accommodation, that they cannot be read together to suggest that the new medical clearance still incorporates this by reference, so the office has an ongoing duty to accommodate him.

[00:23:01] Speaker 00:
He still must, under the law, request a separate accommodation.

[00:23:05] Speaker 00:
Again, not a formalistic request, but at least indicate the desire for an accommodation, not

[00:23:12] Speaker 00:
to not even make contact with him.

[00:23:14] Speaker 06:
From the time that he returned to work and was told to go home because he'd been suspended and then he did not show up for work at the end of the suspension period and was essentially radio silence until a representative at the hearing complained and in essence said he should be here.

[00:23:33] Speaker 00:
Correct.

[00:23:34] Speaker 06:
There's nothing in that ensuing time period that asked for any kind of accommodation.

[00:23:39] Speaker 00:
From him, Your Honor?

[00:23:40] Speaker 00:
Is that what you're suggesting?

[00:23:41] Speaker 06:
There's nothing in that time period from when he could have returned to work till the event at the hearing where his representatives looked to me like complained that he wasn't there.

[00:23:53] Speaker 06:
There was no request for any kind of accommodation.

[00:23:56] Speaker 06:
That's exactly right, Your Honor.

[00:23:58] Speaker 02:
So whatever customary employment could mean, it couldn't possibly mean

[00:24:02] Speaker 02:
not showing up to work at all for several months.

[00:24:05] Speaker 00:
Well, no, Your Honor, for a year at that point.

[00:24:09] Speaker 02:
But we're talking from January to June.

[00:24:11] Speaker 00:
Correct, but the basis of the termination in 2008 was actually leave and the failure to follow leave policies and quite frankly the absence from work for a year at that point.

[00:24:22] Speaker 00:
Because starting in May of 2007, all the way up until June of 2008, he simply did not show up for work.

[00:24:29] Speaker 00:
And if nothing else, this case stands for the proposition that you cannot not show up for work for a year and have any kind of rights claimed unless you have some medical evidence to suggest that there was a reason for that.

[00:24:40] Speaker 00:
And I would just point you, Your Honor, to page 287 to 97 of the Joint Appendix, which details on a daily basis considered as implied belief policies during that stretch.

[00:24:51] Speaker 06:
I asked Mr. Lee what I should make of that page 834 in the record of the finding by the hearing officer.

[00:25:03] Speaker 06:
Page 834 in the record, page 18 of the hearing officer decision.

[00:25:09] Speaker 06:
I asked what I should make of the second full paragraph, complainant did not offer the hearing.

[00:25:19] Speaker 05:
On the left side?

[00:25:20] Speaker 06:
Yeah, on the fact finding.

[00:25:22] Speaker 06:
It's on page 34 on the record.

[00:25:24] Speaker 06:
The second full paragraph.

[00:25:25] Speaker 06:
Complaining did not offer us a hearing.

[00:25:28] Speaker 06:
Correct, Your Honor.

[00:25:29] Speaker 06:
What am I?

[00:25:30] Speaker 00:
What you're supposed to make of this, Your Honor, and this is why we have two separate arguments as to the ADA claim, which is that even if the Office of the Architect had a duty to engage in the interactive process,

[00:25:40] Speaker 00:
This establishes, and we submit that there is no evidence of a reasonable accommodation that would have allowed him to work.

[00:25:46] Speaker 00:
And that is a standalone requirement to establish an ADA violation.

[00:25:51] Speaker 06:
But what about to appear at the hearing?

[00:25:57] Speaker 03:
For the complaint.

[00:25:57] Speaker 06:
It looked to me like the rubber that hit the road on the ADA claim was basically his argument that he should have been given an extension to appear at the hearing.

[00:26:08] Speaker 00:
Correct, Your Honor.

[00:26:10] Speaker 06:
And just two sentences, what's wrong with that?

[00:26:13] Speaker 06:
I mean, his argument is that the agency knew all along that he's impaired under the act with a disease that is continuing to impair.

[00:26:22] Speaker 06:
And so he's saying to himself, even though I was not there, you're trying to terminate me, I'm entitled to be at my hearing.

[00:26:31] Speaker 06:
Right.

[00:26:31] Speaker 06:
He said, knowing what you knew about my condition and knowing what you knew about my, at least, previous requests for accommodation, you should have accommodated me and given me an extended hearing date.

[00:26:44] Speaker 00:
What's wrong with that?

[00:26:46] Speaker 00:
Your Honor, what's wrong with that?

[00:26:47] Speaker 00:
And the very clear distinction between this termination hearing and the prior suspension hearing is that there is absolutely no medical evidence that covers that period and suggests that he was not, in fact, able to attend that hearing.

[00:27:01] Speaker 00:
And that's not only through these agency proceedings that we're looking at right now, but through the actual claim filed with the Office of Compliance, that at any point since then, there has been nothing turned up through discovery to suggest that he was unable to attend that hearing.

[00:27:15] Speaker 00:
And courts have made very clear the case that we cite in reference to the ADA claims, Wills v. Canopy said.

[00:27:21] Speaker 06:
Nothing to be gained from the fact that the agency knew that he was incapable or unable to come back to work?

[00:27:28] Speaker 00:
Seven months prior, Your Honor.

[00:27:30] Speaker 06:
Well, he was unable to come back to work after the end of the 10-day suspension.

[00:27:34] Speaker 06:
You would think somebody who showed up once his doctor said, it's OK if you come to work, even though you're still impaired and you're medicated, OK.

[00:27:44] Speaker 06:
He comes, I'm already willing to work, and said, no, no, no, you're suspended.

[00:27:47] Speaker 06:
Go home.

[00:27:48] Speaker 06:
Now, he doesn't come back in 10 days.

[00:27:50] Speaker 06:
Isn't there an inference that there's something wrong with him?

[00:27:55] Speaker 06:
He indicated his willingness to come to work by coming and being told to go home.

[00:28:00] Speaker 00:
No, he certainly did.

[00:28:01] Speaker 00:
And in fact, we would submit that it's hard to impute that failure to come back to afterwards.

[00:28:06] Speaker 00:
If the agency told him he had been suspended for 10 days, he was able to come back at that point.

[00:28:11] Speaker 00:
It would seem even more likely that he should be able to come back after that, or if not, to submit a request to the agency.

[00:28:17] Speaker 00:
And no, we don't believe that there is an inference that can be made at that point.

[00:28:20] Speaker 00:
There does need to be a request to trigger the duty from your active process.

[00:28:24] Speaker 00:
If there are no further questions, we ask the court to deny this petition.

[00:28:27] Speaker 00:
Thank you, Mr. Ullman.

[00:28:32] Speaker 03:
Ullman.

[00:28:37] Speaker 03:
That's it.

[00:28:38] Speaker 03:
May it please the court that I am John Ullman.

[00:28:40] Speaker 03:
I'm representing the Respondent Office of Compliance.

[00:28:42] Speaker 03:
I wanted to address one of the questions that seems to be troubling the court, and that is about the termination hearing.

[00:28:52] Speaker 03:
And we struggled to figure out if there's any information at all in the record about that postponement request.

[00:28:58] Speaker 03:
And Mr. Lee didn't cite anything.

[00:29:00] Speaker 03:
And so we looked at the record.

[00:29:01] Speaker 03:
And it's at 434.

[00:29:03] Speaker 03:
It's the joint appendix.

[00:29:04] Speaker 03:
It's at page 434 and 435.

[00:29:07] Speaker 03:
And there isn't very much in there.

[00:29:10] Speaker 03:
There's a suggestion.

[00:29:11] Speaker 03:
I think the question, the leading question was asked.

[00:29:13] Speaker 05:
This is on the day of the year.

[00:29:15] Speaker 05:
It appears to be.

[00:29:16] Speaker 05:
Not in advance.

[00:29:18] Speaker 03:
Well, again, we actually don't know.

[00:29:20] Speaker 03:
This is a transcript from the OOC hearing.

[00:29:24] Speaker 06:
Who's the person who said yes in the answer to the question on 434?

[00:29:29] Speaker 03:
She was a human resource person from the AOC.

[00:29:32] Speaker 06:
OK, so speech for the Office of Compliance.

[00:29:36] Speaker 06:
Somebody, Mr. Lieber, somebody saying, did it come to your attention that a request for an extension had been made?

[00:29:41] Speaker 06:
Yep.

[00:29:44] Speaker 06:
So a letter would have been delivered to the office, and I would have given it to employee rights.

[00:29:47] Speaker 06:
And so the suggestion that there was actually a written request for an extension.

[00:29:51] Speaker 03:
Right.

[00:29:51] Speaker 03:
But there is nothing in the record about a written request.

[00:29:53] Speaker 03:
And there's nothing in the record saying this.

[00:29:56] Speaker 03:
Well, there is that.

[00:29:57] Speaker 03:
But there's nothing saying why the request was made, when it was made, why it was made.

[00:30:01] Speaker 03:
I mean, there's a basis for the request.

[00:30:06] Speaker 03:
or the basis of the request.

[00:30:07] Speaker 03:
I mean, the record is just devoid of sufficient information to say that it was a denial of a reasonable request for accommodation with respect to the post-mortem.

[00:30:16] Speaker 03:
They're just, the only thing there is, that's information.

[00:30:20] Speaker 06:
Your argument here that the burden would have been on Mr. Katsouros to come forward with a letter saying, yes, I requested an extension of the hearing date, because as you all know, I have an ADA disability.

[00:30:33] Speaker 06:
And I'm not able to get to this one.

[00:30:35] Speaker 03:
That's correct.

[00:30:36] Speaker 03:
I mean, he has the burden of production and persuasion in an ADA claim.

[00:30:39] Speaker 03:
So he would have to come forth with the evidence to demonstrate that.

[00:30:42] Speaker 03:
And unlike the suspension claim where that evidence is very clear, there is no evidence here.

[00:30:48] Speaker 03:
So the board really had no choice but to ignore that claim.

[00:30:51] Speaker 03:
I mean, there just wasn't enough evidence there to even entertain it.

[00:30:57] Speaker 03:
For the board, I think this is simply a choice between, is this a reasonable accommodation claim?

[00:31:03] Speaker 03:
or absenteeism.

[00:31:05] Speaker 03:
And the accommodation that was, I think that Mr. Lee was talking about is not really a request for medical leave.

[00:31:13] Speaker 03:
It's a request that the employee be allowed to not show up at work without notifying employer for extended periods of time, without indicating how long you're going to be gone, or if or when you're going to return.

[00:31:26] Speaker 03:
I mean, if you're going to characterize what this

[00:31:29] Speaker 06:
Request one.

[00:31:30] Speaker 06:
Let me ask the Office of Compliance a question on relief here.

[00:31:34] Speaker 06:
Let's assume for purposes of argument we disagreed with you and we thought there was an ADA violation with respect to the termination hearing, namely the failure to grant an accommodation for a delayed hearing date.

[00:31:47] Speaker 06:
The relief that would have been imposed here by the hearing officer for that violation was a reinstatement with a back pay going back to a June date.

[00:31:58] Speaker 06:
not just the opportunity for an actual hearing.

[00:32:03] Speaker 06:
Yet, with regard to the remedy on the suspension hearing issue on the ADA violation, the recommendation by the hearing officer was either granting him a hearing or reinstating.

[00:32:19] Speaker 06:
Now, if we were to decide here that there was an ADA violation, would you be arguing that there should be a remand for the board to consider?

[00:32:27] Speaker 06:
what the proper remedy is?

[00:32:29] Speaker 03:
Well, I think, ultimately, there should not be.

[00:32:32] Speaker 03:
Because I think, ultimately, Mr. Katzhorst has to show that there would have been a difference.

[00:32:36] Speaker 03:
That if there had been a postponement, that the he would not have heard it.

[00:32:41] Speaker 06:
Well, but I mean, if there's an ADA violation, at the least he gets a hearing, right?

[00:32:47] Speaker 06:
I mean, for us to say it's harmless error to have denied him the hearing because he would have lost anyhow seems a little silly.

[00:32:52] Speaker 06:
I mean, that's like taking away a due process for him.

[00:32:55] Speaker 03:
Well, I mean,

[00:32:57] Speaker 06:
What I'm trying to say is I didn't see anything in your brief saying, for example, whoops, if we disagree, there's an ongoing penalty issue that has to be here.

[00:33:06] Speaker 06:
The board didn't address the penalty on the termination hearing issue, right?

[00:33:13] Speaker 03:
Correct.

[00:33:13] Speaker 06:
Is it your view that the board should have an opportunity to address that?

[00:33:18] Speaker 03:
Well, certainly.

[00:33:19] Speaker 03:
If you were going to remand it, I mean, I think that you would remand it to the board to determine what would be the proper course of action.

[00:33:25] Speaker 03:
There is the question whether it's worthwhile to have a hearing in which there isn't really another possible result here.

[00:33:34] Speaker 03:
I mean, the question is not whether the employee was properly terminated.

[00:33:39] Speaker 03:
The question was whether he was discriminated against because of his disability with respect to his termination.

[00:33:47] Speaker 03:
And if the result of the termination, an administrative hearing is going to be

[00:33:53] Speaker 06:
So does he get to raise reprisal in that hearing?

[00:33:59] Speaker 06:
I mean, if his argument is, well, you terminated me, but the reason why you terminated me is because I'm disabled.

[00:34:06] Speaker 06:
If he can establish that, he's going to win, right?

[00:34:09] Speaker 06:
Even though he was absent for a long period of time.

[00:34:12] Speaker 03:
Well, I don't believe he's going to win unless he can show he could perform the essential functions of the job.

[00:34:17] Speaker 03:
If he was fired because he didn't show up at work and didn't contact his employer,

[00:34:22] Speaker 03:
and didn't use the leave procedure, which is what the 88... I mean, there is no 88 case that says that an employer has to grant a leave if an employee doesn't use the leave procedures and tell them that they're going to be absent, tell them how long they're going to be absent, tell them, provide medical certification that he will be able to eventually return to the job.

[00:34:47] Speaker 03:
So I think that the basis really, that was the basis for the termination.

[00:34:51] Speaker 03:
That was really what the basis of the board's decision was, is that this was not an ADA accommodation claim or case.

[00:34:59] Speaker 03:
This is a case really where somebody simply did not comply with the attendance and leave procedures, and there was no evidence indicating that he could not.

[00:35:06] Speaker 03:
There was no medical evidence indicating that he could not comply with the procedures.

[00:35:12] Speaker 03:
The case law, I think, is very clear that an employer doesn't have to continue an employee's employment when he cannot follow the belief procedures that are available to him.

[00:35:29] Speaker 05:
Thank you.

[00:35:31] Speaker 05:
Mr. Lieb, five minutes, please, to restore the full rebuttal.

[00:35:36] Speaker 05:
Thank you.

[00:35:43] Speaker 04:
If it please the court, at all times with the four WH380s that are submitted, the FMLA WH380s dealing with the medical certifications, at all times it's shown that he has a chronic episodic disorder.

[00:36:00] Speaker 04:
So to say that there's a cutoff date and a stop date and then a new date for an ADA reasonable accommodation is necessarily in conflict

[00:36:13] Speaker 04:
with the medical evidence in terms of the fact.

[00:36:16] Speaker 05:
I'm sorry, but why should that be so?

[00:36:17] Speaker 05:
If it's a chronic disorder, particularly of that sort, can flare up and die down.

[00:36:26] Speaker 05:
And on January 9th, the most reasonable reading of the letter is, OK, he's ready to go to work.

[00:36:33] Speaker 05:
And then May 15th,

[00:36:36] Speaker 05:
comes and whenever the letter was requesting a postponement sometime before that, I guess the record doesn't say when before that.

[00:36:44] Speaker 05:
Isn't it reasonable for them to insist that some reason be given that this is a period of flare up?

[00:36:54] Speaker 04:
That is provided necessarily by the lay witness testimony of Wally Reed from having conversation with him and saying, I can't understand him.

[00:37:04] Speaker 04:
He's dysfunctional, for lack of a better word.

[00:37:08] Speaker 04:
But if that was accepted for the first hearing, the lay witness testimony, then that should be acceptable for the respondent AOC and the board for the second hearing.

[00:37:20] Speaker 06:
When Mr. Reed gave that testimony into which he referred, he was obviously referring to a point in time

[00:37:28] Speaker 06:
I mean, he was referring to a point in time at which he thought Mr. Katsouros was impaired in the way he was saying, like it was past.

[00:37:37] Speaker 06:
Well, no, that point in time... He wasn't testifying that I'm swearing under oath that Mr. Katsouros will, in six months, be exactly like I saw him yesterday.

[00:37:48] Speaker 04:
No, no.

[00:37:49] Speaker 04:
He was not talking about the future at all.

[00:37:51] Speaker 04:
He was talking about from the suspension, the end of the suspension, to May the 15th, the date of the hearing.

[00:37:59] Speaker 04:
He was not talking about anything post that.

[00:38:01] Speaker 04:
And then the WH-380 is provided of June 28th, I believe it is, and submitted, which shows that he's okay now and he's over his flare-up, so to speak.

[00:38:17] Speaker 04:
That type of medical documentation.

[00:38:28] Speaker 04:
By the way, the individual whose testimony is in that we've been referring to is the former director of the HRMD, the Human Resources Management Division.

[00:38:42] Speaker 04:
She's the one who gave that testimony.

[00:38:44] Speaker 04:
Rebecca Toshoni is her name.

[00:38:47] Speaker 04:
Again, based on the facts that were in front of the hearing officer, the hearing officer saw

[00:38:58] Speaker 04:
a replication of the facts that were in Consoros 1, and he submitted his decision based on that.

[00:39:08] Speaker 04:
The board, even if the facts are undisputed, provides these facts about noncompliance with attendance.

[00:39:16] Speaker 04:
However, he was in compliance with attendance in terms of the chronic severe

[00:39:22] Speaker 04:
serious medical condition that is in the Architects Chapter 630, that one can present a time frame when you're capable of coming back to work, one, and when you, although it was unforeseeable, his flare-up, he can provide the information covering that period of time.

[00:39:44] Speaker 04:
So he was consistent with the

[00:39:48] Speaker 04:
requirements for people who are under FMLA and by extension ADA as opposed to somebody who had the flu or had a broken leg or in that type of situation.

[00:40:00] Speaker 04:
So to say he was in non-compliance is an incorrect interpretation of what he did when he was in compliance and provided the WH380 of June 28th.

[00:40:10] Speaker 04:
Now, again, the stopping and starting of the clock

[00:40:17] Speaker 04:
does not inhibit or does not preclude the AOC from participating in the interactive process when it knows something.

[00:40:30] Speaker 04:
The case law says that sometimes the employer has to come forward and offer an accommodation as opposed to the employee when he's incapable of.

[00:40:41] Speaker 04:
And again,

[00:40:45] Speaker 04:
Were he to be given another hearing on the termination, were you to rule in that manner and given another hearing on the termination, he would then be able, as the court has said, bring up a due process argument to try and mitigate the terms of the proposal to terminate, which only consists of 12 workdays, not the entire

[00:41:12] Speaker 04:
The proposal is based on, is not coming back to work for two weeks and a few days after the expiration of the suspension.

[00:41:26] Speaker 04:
It's not for that entire period.

[00:41:32] Speaker 05:
Mr. Court, any other questions?

[00:41:33] Speaker 05:
No, thank you very much for leaving and the case is submitted.