[00:00:05] Speaker 04:
We have four cases scheduled before us today.

[00:00:09] Speaker 04:
One of the cases, 17-2015, will be resolved on the briefs.

[00:00:16] Speaker 04:
So we have three oral arguments.

[00:00:18] Speaker 04:
The first argument is Howell versus OOC, number 17-1755.

[00:00:23] Speaker 04:
Mr. Lee, I understand you're going to reserve five minutes of your time for rebuttal.

[00:00:31] Speaker 04:
Is that correct?

[00:00:32] Speaker 04:
OK.

[00:00:33] Speaker 04:
You may proceed.

[00:00:35] Speaker 03:
Thank you.

[00:00:36] Speaker 03:
Good morning.

[00:00:36] Speaker 03:
May you please report.

[00:00:39] Speaker 03:
I'd like to address some of the issues raised by the respondent OOC in terms of its brief.

[00:00:46] Speaker 03:
And I would like to correlate that with the timing of the leave restriction and the proposal to terminate and the firing in the instant matter.

[00:00:59] Speaker 03:
With regard to the respondent's brief on pages 18, 30, and 35,

[00:01:04] Speaker 03:
They respectively say that.

[00:01:06] Speaker 05:
Mr. Lee, I have a couple of questions for you.

[00:01:08] Speaker 05:
Certainly, Ron.

[00:01:09] Speaker 05:
You raised several arguments that may not have been raised before the board.

[00:01:13] Speaker 05:
And I want to clarify whether they were.

[00:01:16] Speaker 05:
You challenged the AOC's de facto no-fault leave policy at page 42 of the blue brief.

[00:01:25] Speaker 05:
Did you raise that below?

[00:01:27] Speaker 03:
I did raise it below.

[00:01:29] Speaker 05:
Give me a site, OK?

[00:01:30] Speaker 03:
I'm sorry?

[00:01:31] Speaker 05:
Give me a site.

[00:01:32] Speaker 03:
I can't do that right now, Your Honor, perhaps in the rebuttal I'd be able to.

[00:01:37] Speaker 03:
But in response to that, I would say that it's raised by the factor that approved leave to be used for excessive absences and FMLA leave, approved FMLA leave and all the other leave that was used for purposes of the excessive absences, it was approved and then it was used later on to bring an action against him.

[00:02:02] Speaker 03:
Therefore, no fault.

[00:02:05] Speaker 03:
You had a certain number of hours, unspecified number of hours, to approach excessive absences, which is purely subjective.

[00:02:12] Speaker 03:
And an employee has absolutely no idea.

[00:02:15] Speaker 03:
When did it become excessive?

[00:02:18] Speaker 05:
Did you raise entrapment by estoppel?

[00:02:21] Speaker 03:
Yes.

[00:02:21] Speaker 03:
If Your Honor, please, if I didn't raise it by the words, I raised it by the accent.

[00:02:32] Speaker 03:
and what it was.

[00:02:33] Speaker 03:
Once again, he's being penalized for something that had been approved earlier, and now he's being sanctioned for it in terms of the excessive absences.

[00:02:47] Speaker 05:
I would also- Wait, wait, wait, wait, wait, wait, wait.

[00:02:51] Speaker 05:
You have a whole section.

[00:02:52] Speaker 05:
And Kradman by a stop all in the instant matters, starting at 43.

[00:02:57] Speaker 05:
You cite authorities.

[00:02:59] Speaker 05:
Yes, sir.

[00:03:01] Speaker 05:
raise that below.

[00:03:02] Speaker 03:
I did not raise it in the manner that it's raised in the brief.

[00:03:06] Speaker 03:
I raised it in a manner by arguing, so to speak, that you cannot penalize someone subsequent post hoc after he's been given approved leave.

[00:03:17] Speaker 05:
You allege at 55 to 57 that Mr. Howell was retaliated against for opposing the notice of his proposed termination.

[00:03:26] Speaker 05:
Did you raise that?

[00:03:27] Speaker 03:
Yes, I did.

[00:03:28] Speaker 05:
Where was that?

[00:03:28] Speaker 03:
If Your Honor, please, that's raised by the factor that there was no temporal proximity.

[00:03:43] Speaker 03:
The hearing officer said there was no temporal proximity between the 2007-8 and the suspension of Supervisor Croupe with regard to the 2014-15 proposal to terminate.

[00:03:59] Speaker 05:
Well, those are factual statements.

[00:04:01] Speaker 05:
Did you raise the doctrine?

[00:04:06] Speaker 03:
If not raised by characterization, I raised it by the factual circumstances.

[00:04:12] Speaker 05:
OK.

[00:04:13] Speaker 05:
You assert a cat's paw theory of retaliation.

[00:04:16] Speaker 03:
Again, the factual narrative supports the fact that all these other people certify.

[00:04:22] Speaker 05:
Your answers are doing you no good, Mr. Lee, because you know perfectly well

[00:04:28] Speaker 05:
that if you didn't raise it below as a legal argument, then it's not right for us to hear it.

[00:04:36] Speaker 03:
If Your Honor, please, when it's raised by factual narrative as opposed to putting a categorization on it, or a characterization, or a quote, quote, legal theory on it, it's still raised by the factual narrative.

[00:04:50] Speaker 03:
It's raised in the complaint as a factual narrative, with the allegations pursued there too.

[00:04:58] Speaker 03:
whether or not catch fall.

[00:05:01] Speaker 05:
What's your authority for that?

[00:05:04] Speaker 03:
I can't necessarily provide you an authority for that, but I would say if the factual narrative fits that pattern, then the legal argument can be raised.

[00:05:15] Speaker 05:
All right.

[00:05:16] Speaker 05:
OK.

[00:05:16] Speaker 05:
Well, we've done the house cleaning.

[00:05:19] Speaker 05:
I don't think we've cleaned up the mess, but OK.

[00:05:21] Speaker 05:
That answers my question.

[00:05:23] Speaker 03:
Once again, on page 18,

[00:05:27] Speaker 03:
The respondent says the petitioner was provided more FML leave than the statute provides.

[00:05:36] Speaker 04:
Let's focus a little bit more on your arguments as opposed to the arguments of your opponent.

[00:05:42] Speaker 04:
So the AOC offered to repeat the pre-termination hearing, the 752 hearing, and that repeat of that

[00:05:53] Speaker 04:
termination here would be unconditional.

[00:05:55] Speaker 04:
You say that it was not unconditional, that there were conditions attached.

[00:05:59] Speaker 04:
What conditions were attached?

[00:06:02] Speaker 03:
There were no conditions attached.

[00:06:04] Speaker 03:
It was simply another hearing.

[00:06:06] Speaker 03:
But if you have another hearing... It was an unconditional... But if you have another hearing, which is no more than a kabuki dance in the Office of Compliance, if you have another hearing and you're not permitted to raise issues... So you argue in your brief that

[00:06:21] Speaker 03:
Conditions were attached and now you're saying that there were no conditions at that there were no conditions But if I'm not given specifics in terms of the fact that yes, I can raise constitutional issues void for vagueness.

[00:06:33] Speaker 03:
I can raise discrimination and retaliation issues based on not for under the CAA but based for impeachment evidence and for exculpatory evidence if none of those things and it's strictly the same kind of a hearing he got the first time then There's no

[00:06:52] Speaker 03:
There's no way he's going to be successful on another hearing.

[00:06:56] Speaker 04:
So that's why you denied it?

[00:06:58] Speaker 03:
Yes.

[00:06:59] Speaker 03:
If you look at the factor of Quibono, who does it benefit?

[00:07:03] Speaker 03:
It doesn't benefit the petitioner.

[00:07:06] Speaker 03:
All it is is a rerun.

[00:07:08] Speaker 03:
I'm giving no specifics in terms of it.

[00:07:11] Speaker 01:
Matter of fact, there are no specifics for such a hearing to take... Mr. Lee, at the argument, you're arguing that

[00:07:18] Speaker 01:
Well, it wouldn't have made any sense for me to go to the hearing because some things I would have raised they wouldn't pay any attention to.

[00:07:24] Speaker 02:
That is correct.

[00:07:25] Speaker 01:
That's what I understand you to say.

[00:07:27] Speaker 02:
That is correct, Your Honor.

[00:07:28] Speaker 01:
Let me tell you what I'd do if I'd been in your shoes, because I would have realized that the argument being made against me if I didn't go to the hearing, right?

[00:07:36] Speaker 01:
I would have gone to the hearing, and I would have said, I'm at the hearing, and I'm going to raise five arguments, and I know you're going to reject them, but I'm going to raise them, because I'm going to preserve them for appeal, because you know what?

[00:07:47] Speaker 01:
When I lose, I'm going to go up on appeal and I'm going to argue that the very points that you rejected me on were legally incorrect.

[00:07:53] Speaker 01:
I'm going to preserve them.

[00:07:55] Speaker 01:
Lots of times you go to hearings knowing that there are issues that may be resolved against you, but you go in order to state your grant, take out your term, preserve the issue for appeal.

[00:08:08] Speaker 01:
Because the truth of whether or not those arguments you wanted to make were properly excluded for you remains to be seen once you test them on appellate review.

[00:08:19] Speaker 01:
See what I mean?

[00:08:20] Speaker 03:
I understand what you're saying, Your Honor, but I would say there was no procedure available to hold such a hearing.

[00:08:28] Speaker 03:
He would have to have the termination vacated.

[00:08:31] Speaker 01:
Well, you're arguing you couldn't have made some constitutional arguments.

[00:08:34] Speaker 01:
Well, maybe it's so that the hearing examiner doesn't have the authority to hear those arguments.

[00:08:40] Speaker 01:
We will not know that until you frame the issue at a hearing someday, get ruled on flatly, and then come up and argue the ruling is wrong, right?

[00:08:51] Speaker 03:
In response to you, I would also say that by our operation of law, it should not have been raised at the Office of Compliance hearing, because the mediation, any type of mediation, is confidential.

[00:09:03] Speaker 01:
Well, you see my point.

[00:09:04] Speaker 03:
I certainly see your point.

[00:09:07] Speaker 01:
I'm not trying to tell you how you should argue on behalf of your client, but it seems to me that when you say, well, I didn't want to go to a hearing because some arguments I might have made would have been rejected,

[00:09:19] Speaker 01:
doesn't seem to me to be a very good argument for not going to the hearing.

[00:09:22] Speaker 01:
But that's my take on it.

[00:09:24] Speaker 03:
And my take is it would not have been beneficial, number one.

[00:09:27] Speaker 03:
Number two, there was no procedure to enable it.

[00:09:30] Speaker 03:
The hearing officer, the first decision at the AOC would have had to have been vacated.

[00:09:35] Speaker 03:
He would have to have been reinstated.

[00:09:38] Speaker 03:
And then he could hold a hearing, which means he would have to have been paid for approximately 13 or 14 months since termination.

[00:09:46] Speaker 03:
There was absolutely no realism to the offer when it was made.

[00:09:56] Speaker 04:
Are you finished?

[00:09:57] Speaker 04:
You want to reserve the rest of your time?

[00:09:58] Speaker 04:
Yes, I would.

[00:09:58] Speaker 04:
Okay.

[00:09:59] Speaker 04:
Thank you.

[00:10:13] Speaker 04:
Mr. Wolfman?

[00:10:15] Speaker 04:
Did I pronounce your name correctly?

[00:10:16] Speaker 04:
Correct.

[00:10:17] Speaker 00:
All right.

[00:10:17] Speaker 00:
One of those German names.

[00:10:18] Speaker 00:
It's difficult.

[00:10:21] Speaker 00:
May it please the court this morning?

[00:10:23] Speaker 00:
I think there's really only one issue here, and that's whether there is substantial evidence to support the board's decision and the hearing officer's decision.

[00:10:33] Speaker 00:
I think even a cursory review of this record reveals that there was more than ample evidence to support the conclusions reached by the hearing officer and the board.

[00:10:43] Speaker 00:
I think the most telling evidence that the hearing officer found was the testimony of the two supervisors.

[00:10:49] Speaker 00:
One of the supervisors had kept a log of the reasons why he had been absent for 40 occasions in the fall.

[00:10:57] Speaker 00:
22 of those had nothing to do with any type of alleged disability.

[00:11:02] Speaker 04:
Was the accuracy of those logs in dispute?

[00:11:07] Speaker 00:
I'm not sure they were.

[00:11:10] Speaker 00:
Certainly the hearing officer found the testimony to be very believable.

[00:11:13] Speaker 00:
He said they were contemporaneous records that he made at the time.

[00:11:17] Speaker 00:
It's understandable why he started making those records after you have an employee who is a constant no call, no show.

[00:11:24] Speaker 00:
And many of the incidents were not in dispute.

[00:11:28] Speaker 00:
For instance, there was a period of five days where he didn't call in at all and then came in on the sixth day and came in late.

[00:11:35] Speaker 00:
And the excuse was that he was helping his family in New Jersey and didn't call it all.

[00:11:40] Speaker 00:
So I mean, that loan would be, under the AOC's policy, would be enough to discharge him.

[00:11:46] Speaker 04:
How did the MS of the appellant affect him?

[00:11:51] Speaker 04:
Was it his motor facilities, his cognitive facilities?

[00:11:56] Speaker 00:
Well, again, the medical evidence was not.

[00:11:59] Speaker 00:
The AOC had asked him to update the medical form, so it was a little unclear in terms of what restrictions he had.

[00:12:05] Speaker 00:
There was a forum that suggested he had some lifting restrictions.

[00:12:08] Speaker 00:
And they did try to accommodate him.

[00:12:10] Speaker 00:
They basically wouldn't have him do any of the heavier work.

[00:12:14] Speaker 00:
They usually worked in teams.

[00:12:15] Speaker 00:
He worked as a high voltage electrician working on heavy equipment.

[00:12:19] Speaker 00:
And so he would be given the lighter tasks.

[00:12:21] Speaker 00:
So they tried to, even though there wasn't.

[00:12:24] Speaker 00:
The evidence was really in dispute in terms of what it was his restrictions were.

[00:12:28] Speaker 00:
And they kept working with him, asking him to give us something more.

[00:12:32] Speaker 05:
But the evidence doesn't seem to be about whether he could fulfill his work or not.

[00:12:38] Speaker 05:
It was whether he was at his work.

[00:12:40] Speaker 00:
Exactly.

[00:12:41] Speaker 00:
I mean, when you have, like I said, 40 occasions, most of them no calls, no shows.

[00:12:46] Speaker 00:
I mean, not showing up at all.

[00:12:47] Speaker 00:
I mean, if anything, the supervision seemed to have exercised an extraordinary amount of patience.

[00:12:54] Speaker 00:
They worked with him.

[00:12:55] Speaker 00:
They tried to convince him of the necessity of coming into work and of calling into work and letting us know what's going on.

[00:13:00] Speaker 00:
And really, that went on for a period of two years before they finally started taking some action.

[00:13:05] Speaker 00:
So I think there was, if you look at this record and you look at why the hearing officer made the decisions that he made, it's really hard to see how you could make any other decision based on this record.

[00:13:23] Speaker 00:
Unless there's any other questions.

[00:13:24] Speaker 01:
You said that of the unexcused absences, 22 of them were circumstances in which there was no connection to his disability.

[00:13:36] Speaker 01:
And the ones that was a connection to the disability had he clearly made a good case for needing leave.

[00:13:45] Speaker 01:
for those events?

[00:13:47] Speaker 00:
I don't think he had.

[00:13:48] Speaker 00:
I mean, the issue with the leave restriction was that if he was going to be gone for some type of illness, he had to come back with some type of medical, excuse me, showing that there was some type of illness there.

[00:14:00] Speaker 01:
What I'm trying to get at is to analyze the exact absences for which he was taxed.

[00:14:08] Speaker 01:
I mean, a large number of them.

[00:14:10] Speaker 01:
And I was just

[00:14:12] Speaker 01:
querying about the ones in which he might have said, well, you should have excused that because of my disability.

[00:14:17] Speaker 00:
Right.

[00:14:18] Speaker 00:
And again, and I think they weren't excused.

[00:14:20] Speaker 00:
I mean, they were either.

[00:14:22] Speaker 05:
Well, the record seems to show that they asked him for those medical records.

[00:14:25] Speaker 00:
Exactly.

[00:14:26] Speaker 00:
Right.

[00:14:26] Speaker 00:
And then he just would refuse to or fail to provide them to him.

[00:14:30] Speaker 00:
So they said, well, if you went to the doctor, we'd like to see the doctor, excuse them, and that would never come up.

[00:14:36] Speaker 00:
So those remain coded as a way without, you know,

[00:14:42] Speaker 00:
absent without official leave, AWOL.

[00:14:44] Speaker 00:
And I mean, he would have the opportunity to recode those as leave without pay if he could bring in the medical.

[00:14:53] Speaker ?:
Thank you.

[00:14:55] Speaker 04:
OK.

[00:14:56] Speaker 04:
Thank you very much.

[00:15:00] Speaker 04:
Thank you.

[00:15:00] Speaker 04:
Mr. Lee, we have a little bit over five minutes.

[00:15:03] Speaker 03:
Yes, sir.

[00:15:06] Speaker 03:
With regard to the law with these absences, 40 absences, 22 of which were allegedly non-MS related or non-disability related, and the other is 16 or whatever, which were MS related or related to his disability regarding sleeping, which is one of the resulting disabilities, ADA disabilities from the MS, which was

[00:15:32] Speaker 03:
acknowledged and verified in three separate WH380s in 2012.

[00:15:38] Speaker 03:
Now, with regard to the further medical information that's asked for in 2013, that comes at the end of the FMLA period of time.

[00:15:48] Speaker 03:
The leave restriction comes on January 23rd.

[00:15:52] Speaker 03:
His last FMLA was December 28th.

[00:15:55] Speaker 03:
It comes within one month of his FMLA expiring in 2012.

[00:16:01] Speaker 03:
with regard to the update that they wanted in February 15, which comes within that long period of time.

[00:16:07] Speaker 03:
He was out of work.

[00:16:10] Speaker 03:
It was all related to the MS.

[00:16:12] Speaker 03:
With regard to the light of task, his initial WH3A... Why didn't he provide notes from the doctor when asked for them?

[00:16:21] Speaker 03:
Because he was sick.

[00:16:22] Speaker 03:
He provided them subsequent.

[00:16:25] Speaker 05:
Where are they in the record?

[00:16:27] Speaker 03:
They are not in the record, but they were accepted.

[00:16:30] Speaker 03:
The 2013

[00:16:31] Speaker 03:
hours that he was out that he was charged quote-quote AWOL.

[00:16:36] Speaker 03:
He provided medical documentation when he was capable of going back to the doctor.

[00:16:41] Speaker 03:
He provided it.

[00:16:45] Speaker 05:
But that's not in the record.

[00:16:47] Speaker 05:
How can you say that when it's not in the record?

[00:16:48] Speaker 03:
I don't know how I missed putting it in the record, but the medical documentation, and I will search the record again for it, and I would apologize to the court for that.

[00:16:57] Speaker 03:
But I would say, performance-wise,

[00:17:00] Speaker 03:
He was satisfactory.

[00:17:02] Speaker 03:
He performed satisfactory, but for the absences.

[00:17:06] Speaker 03:
The absences, look, the only way to, I think, to understand this case, Your Honors, is the fact that when he had FMLA, they didn't do anything to him.

[00:17:18] Speaker 03:
When he, when they started the log or the chart in September of 2012, they never provided him with any notice of infractions that he could respond to it at the time that these alleged incidents took place.

[00:17:29] Speaker 03:
that supervisor troop, he wrote these things.

[00:17:32] Speaker 03:
When he was under FMLA, there was responsibility on the agency, the AOC, to provide him with some kind of an ADA interactive process.

[00:17:42] Speaker 03:
That onus under 825.702 of their regulations, the onus is on the employer.

[00:17:49] Speaker 03:
When you deal with the ADA under the FMLA, you're required to not necessarily deal with a neutral policy in terms of leave,

[00:17:59] Speaker 03:
so to speak, but to deal with the specific disabilities.

[00:18:03] Speaker 03:
And that's in 42 USC.

[00:18:05] Speaker 05:
But the factual record looks like they bent over backwards to accommodate him.

[00:18:12] Speaker 05:
What we have in the record.

[00:18:14] Speaker 03:
If I may interrupt you, Your Honor, they bent over backwards after their liability was over in 2013.

[00:18:20] Speaker 03:
January 1, 2013, what they had to do prior to that, they did not have to do subsequent to that because he had no FMLA in 2013.

[00:18:28] Speaker 03:
There's absolutely no, and so they were not required, quote, quote, unless you look at him as being regarded as disabled based on his sleeping difficulties.

[00:18:40] Speaker 03:
If you regard it as disabled, which they did recognize,

[00:18:43] Speaker 03:
Then they were responsible to look at an ADA aspect of the case, but presumably coming from FMLA to ADA in section 825.702 of the OOC regulations, FMLA regulations.

[00:19:00] Speaker 03:
In their mind, the way I see it is the ball was dropped by them, and they could pick it up and bring.

[00:19:08] Speaker 04:
Aside from the regulations, again, you're focusing on something I think that's

[00:19:13] Speaker 04:
not at the core or go to the heart of your appeal.

[00:19:17] Speaker 04:
I mean, you're appealing that there's things that were not provided to your client.

[00:19:22] Speaker 04:
And to Diwala points out that the record indicates that they've been over backwards to assist your client at times.

[00:19:28] Speaker 04:
What is it more that they could have done?

[00:19:31] Speaker 03:
They could have determined whether or not an ADA reasonable accommodation by virtue of changing a shift.

[00:19:39] Speaker 03:
Because he seemed to be able to handle a later shift.

[00:19:43] Speaker 03:
And there had been a vacancy in that period of time for a 3 to 11 shift.

[00:19:49] Speaker 05:
Did he suggest that somewhere in the record?

[00:19:51] Speaker 03:
He didn't suggest that anywhere in the record, because the man is a high voltage electrician.

[00:19:55] Speaker 03:
The man does not know about HRMD, about human resources.

[00:20:00] Speaker 05:
Does he know he's functioning better if he had a later shift?

[00:20:05] Speaker 03:
That was only determined later in the year and later in 2013 after he got infusions of one type of medicine and after he got medicine, other new type medicine.

[00:20:20] Speaker 05:
So you would say it was only determined, that's a passive voice.

[00:20:24] Speaker 05:
Who determined that?

[00:20:25] Speaker 05:
He did?

[00:20:27] Speaker 03:
He recognized it.

[00:20:28] Speaker 05:
And once he recognized it, where in the record did he suggest that to his employer?

[00:20:35] Speaker 03:
It's not in the record.

[00:20:37] Speaker 05:
Thank you.

[00:20:39] Speaker 03:
Thank you.

[00:20:40] Speaker 03:
OK.

[00:20:41] Speaker 04:
Thank you very much.