good morning may it please the court my name is matt crotty and i have the honor of representing jodi kelly in this very important case miss kelly was a five year employee of amazon dot com from two thousand and six to two thousand and eleven she worked as a customer service representative on the company's search and rescue team and what that means is when a customer calls and had complaints and a lower level employee cannot resolve those complaints then those complaints were elevated to miss kelly one of miss kelly supervisors susan meyers describes her as smart talented and of unlimited potential miss myers described miss kelly strengths as one that works with customers until the problem is resolved from two thousand and six to two thousand and nine miss kelly received positive performance reviews promotions and pay raises terminations well if the if since you don't have a lot of time and i think we were very aware of the facts how can we conclude that cali is qualified to perform the essential functions of a customer service as advocate when she failed to meet amazon's customer service satisfaction requirement over a course of at least eight months even after amazon implemented four consecutive step plan i'm going to start by talking about the job description for the search and rescue associate and that's it documents e r four eighty two and that document describes the customer service associate as one who recovers the customer experience so that's a criteria of the job and then the second criteria is somebody thinks outside of the box now in the record there are three unsolicited customer compliments not complaints but compliments miscarries work performance and those are documents to seventy nine to eighty one to eighty two but most importantly on july sixth two thousand and ten miss kelly supervisor miss meyers signed a document in which let me step back miss kelly requested a promotion in order to compete for that promotion she needs to she needed a promotion slip signed by her supervisor miss myers miss meyer signed that slip and it is document to eighty eight and miss meyers writes as follows jodi is focused and determined to find resolution for customers customers issues she has a great ability to think outside the box and find wrestle like resolution that others have missed this recommendation july sixth was written six days before she was placed on her first step plan for excessive eating eighty are right i guess the problem seems to be not that you couldn't find individual instances of praising her but i gather that amazon uses this expressed dissatisfaction right right the e r as a measure of and they basically ask customers are you satisfied with your experience and if her if your client first amazon no longer uses the e t e are but second when the e g are wasn't place documents three o two and three o six when miss kelly was on the performance improvement plan her supervisors were listening in o calls and giving our free feedback and to and the record again documents three zero two and three zero six reflect that in listening to the calls the customer said that they were satisfied with miss kelly's performance but for her service seller not miss kelly refused to respond to the the customer's calls put simply sometimes the e t e are was based on instances simply outside of miss kelly's control  your question well i can still go but they have this but other people are obviously meeting that stamp were meeting that standard at the time so it the fact they're not saying you have to be one hundred percent you know they're successful but they allow for this you know percentage and they make they say how they add in the ten percent and they do certain things have that they calculate it and so that there's a lot of people that meet the a t r requirement and she didn't she did a times in early february two thousand and eleven shortly before she was terminated her he our was one point two seven percent and then also the wreck reflects that as february two thousand and eleven wore on she was coming off of some narcotics and in early march march fourth two thousand and eleven she went to the emergency room and it was terminated six days later on march third the day before she went to the emergency room records reflect that her tone was what was getting better and in late february two thousand and eleven the record for the reflects that that she was i believe the quote is on the right track so the company was listening to her on the phone customers were not saying september december two thousand and ten she she was off the e r plan only to go back on it in february two thousand and eleven but before she went back on it in february two thousand and eleven additional documentation was submitted to terminated i have not seen that in the record but nor have i seen any evidence from amazon showing that well any burden of disparate impact or disparate treatment would be on you not on amazon  motivating factor which is different from the but for causation of the a t f so if i can establish that her tone for example which her doctor does relate to her disability was a factor that amazon took into consideration  right i do and i believe there are the record supports that again we have three customer compliments about miss kelly's performance and then to document internal emails from amazon both in the mid two thousand and eleven timeframe which in monitoring your telephone calls say what your contention about what did they to accommodate kelly did they have to change so you said a v r to track performance of customer service is that what what's the accommodation or are your argument that amazon could have reasonably accommodated kalai by reassigning or to another team but i don't see where in the record does it indicate the availability of other positions that she was qualified for one accommodation that we asked for in this is supported by the kimber overset lennox richfield case was simply a leave of absence again and two thousand and one february two thousand and eleven the record reflects that she's coming off of the narcotics source a leave of absence and she had additional f n l a time available just to allow her to get better so that's one accommodation another accommodation she worked from home remotely and she could have been transferred  chat team or a kindle team where she could of up interacting with customers online the city over the phone so those are two accommodations as the records show that there was a position that they label that she could have transferred into contention contention that amazon didn't look because amazon never entered into the interactive process even though it was on notice to do so but if amazon says there was no they mobile it there is no available they can see to which she could be transferred how can you just saying that's not credible i mean isn't it your burden to come back with something to show kindle team in the past but also had amazon entered into the interactive process which they did and with regard to miss kelly's disability then that would have been a time for both parties to see if she could and timeframe no she didn't because the company fired her it was march march tenth within you know a short which we've been having this problem for the last eight months i mean with the whole she was on major both loopy and tired so she was on those narcotics throughout the duration of her lease from two thousand and october two thousand and nine on word she inform amazon of this she did it's in it's in the request for medical information document that amazon requested and that's a document number four six zero that's the medical slip that amazon  to that how does that put someone on notice that their request that someone's requestion accommodations under the washington law gets discrimination the standard and it's set out in the hall and versus america west and then the downy versus crowd the marine cases those cited in emphasized in our reply brief that does it it's simple notice meaning notice of a disability and under the goodman v boeing case contrary to what the just record ordered it's not incumbent on the employee he to inform the employer of the whole continuum of the employee's disability so that's that's more nodes than actually was even allowed in the i'm in the hall in versus america west case and that case the employee had to brief conversations with his boss saying hey my anxiety is affected by the night shift whereas here we have at least three that at least that linked the disability to the job requiring and again i'll just go back to the you know the nose from two thousand and nine about the narcotic she was on the f m l a notice of both two thousand or twenty seventh two thousand and ten and january two thousand campaign right to the chase cents there's not a lot of time do you concede that amazon did not gauge it engage in an interactive process to explore accommodations to help kalie no i do not and this is why they explored combinations for the limitations that it had received notice about and though those limitations were that she was unable to work when these episodes occurred and she asked for intermittently they fully accommodated that they gave her intermittently they gave her continuous leaves under family they gave her continuous leaves that weren't protected by family when she asked for them and then she asked for an hour days two occasions and they fully approved those  accommodated those requests and and these are all things she asked for and she received she put them on notice they fully accommodate that they they were not on notice that there was a problem there was any problem with that those were  accommodations to help her with the attendance and showing up for work and there were no notice of there was an issue there so council says that the disability that should have been accommodate it related to her tone of voice related to her migraines and the pain she was suffering what your response that that they did not miss kelly never gave notice to amazon that she was in pain talking to customers that that pain affected her tone of voice and that for that reason she could not give appropriate assistance to customers there's theirs and she admitted to the district court that she didn't give that notice there is m that in the record has she admitted to the district court that she did not give notice regarding the pain resulting in perhaps an inappropriate town can we find that in the record it's in the record since it's in the supplemental you are sixty eight the hearing before the district court where the district court specifically asked her if she had ever let her supervisors know on page sixteen ok it starts it starts on the bottom of page sixty seven lines twenty five then the question goes through line nine and the answer then is on line ten so has that part of the summ she's answering or her lawyer son or her lawyer is meeting that the record does not reflect that she gave any notice to the district court to amazon that she needed help interacting with customers  asking you where and the record and usually people would cite to the deposition at the end of edgel where they you were questioning and saying did you ever give notice of x y and z but you know what your lawyer says i'm not saying that couldn't be some sort of admission but it's not what that's not miss kelly talking no it's her her counsel admitting that the record does not have any evidence that's a different point though correct and that's what but in her deposition in support of her claim and that is in the record three forty two but the question i asked her in her deposition was what was it that she specifically asked about of human resources at amazon and what she told me was this she had a conversation was with with miss wilson about my e v e r and taking a look into the way it was calculated based on the call volume i was taking in and then i asked her if that was all she asked about and she said yes and if you look at your seventy nine and e r eighty those are the answers to those questions well it's a little bit hard to though if you say you know how can we conclude that amazon was not on notice that her disability for causing performance problems given that amazon knew that she was taking was missing eight days of work per month due to her disability i mean that's a lot of time because what if i mean what are we talking about that you work twenty days a month and she's missing eight almost half and there's no record the law does not require that in amazon to make that assumption it's incumbent on the employee to tell the employer that they have a limitation and that they need help for that limitation oh but she didn't and and then her search her the medical sort of occasions don't tell amazon that she has a problem to promote performing her work if you look at your four fifty nine actually it's first your four forty six and that's a certification of li for intermittent intermittently for migraines and there's a question on that form and the question says if she's able to perform some work is the employ unable to perform any one to one or more of the essential functions of the employee's job and physician  that's not applicable so the physicians telling amazon when she has the case conditions she can't work she doesn't need accommodations at work because she won't be there then she fills out another form for physician and if you are four fifty nine and the physician says that she can return to work with no limitations and there's actually a section on that form but if they have limitations work limitations the physician can connote those they were both so i guess maybe and response to i asked appellants counsel that how can we conclude she's qualified to perform the essential functions of customer service when she failed to meet you know all the the paps or the steps or whatever is going on but then i'm learning there that you don't do that anymore you know i probably couldn't honestly i probably couldn't keep this job that in terms of i'm sure that if when you get the most unhappy customer people it's a pretty you know it's there some people that if we got surveyed after court would probably get a bad survey every time from the person that lost that you  know that's so your honor the law of the law of the a b a is clear that the employer has the right to set its performance standards and it's not for the court to tell the employer that standards are wrong if they were evident if there were evidence that other people weren't meeting and got capped that that would be a different story right is exactly at the core of no one met the standards except for and they've got to keep their jobs but that she didn't there is no evidence of disparate treatment in fact the admissions through the statement of facts and the depositions are that this standard was applied uniformly to all customer service agents in the same job and she miss kelly did not provide any evidence that they treated anybody more favorably with respect to our but i want to say this case is very similar to the issue that was involved in samper versus providence st vincent medical center and in that case miss ampara challenged the ability of my client providence to enforce a uniform attendant standard that it used to measure whether the nurse was regularly regularly showing up to perform her job which was an essential function here we're using evy are to measure whether miss customer service agents are providing the high level of customer service that they are expected to provide is the same thing and there they said that the employer is not expected to lower or adjust its performance standards the difference and what makes this case even less compelling than samper is that there's that lack of notice that the performance that connection here but it's also incorrect that they don't use a measurement standard for customer service anymore two years after miss kelly's discharge they went from express dissatisfaction rate to negative response rate so they still have a measurement standard that all customer service associates are supposed to meet that obligation under the a t f or accommodationist to accommodate known limitations it was incumbent on misc helly to tell amazon that she needed help interacting with customers because of her disability the e e o c and its guidance has made clear that when you're addressing performance problems with an employee the onus is on the employee to tell you that they need help to meet those standards because of their limitations they're in the best position to know what they need here miss kelly can even say for sure that her problems with customers were related to her medical conditions at best she says well they might have been and she tries to say that it's limited to her tone but there were other issues that were going on she wasn't going above and beyond to find solutions for the customer she was rushing customers off the phone she wasn't apologizing for mistakes there was just a whole host of things and one manager even said that she you know came across as hostile and you know unfriendly what apparently is what is miss jones characterizes this concept of tone i mean she came across as  unapologetic distracted short on interested on caring and rush those are all those other words for tone correct i mean they are but she didn't also didn't go above and beyond to find solutions that's also in there about the you know the scandal team or the chat  kindle had its own rate which was lower lower percentage than the customer search and rescue associates amazon gave them credit for the fact that that job may be a little bit more difficult sometimes because you have a crank your customer so they had they had a more lenient standard kindle team had a lower standard in modifier standard of satisfaction i guess so or whatever correct and there's nothing  that shows that frustration from kindle customers is any less than i mean if i can't get my kindle to work i'm not necessarily the happiest customer either so that's a that's a speculation there's no evidence to the record that amazon had a policy of doing that that they didn't follow with miss kelly there's no evidence in the record that that would resolve her performance issue and that for that it was miss kelly's obligation to come forward with assuming that we failed an interactive process which we did not but if we had and it was miss kelly's obligation to show that reasonable accommodation was possible and she failed to do that one accommodation that had been suggested was the amazons of the da they had no idea that that was something that that her performance issues were caused she didn't tell them hey my performance issues are related to my medical conditions please call my doctor an employer can just call a employee's doctor and say hey can you give me information on this employee before intel they know i've ever been asked by the employee for help and there's no evidence in the record that said that about a leave of absence helping miss kelly  improve miss kelly's condition which was a longstanding condition that had been going on since two thousand and seven there's no evidence that that would have helped resolve that so she could come back and perform and provide the high level of customer satisfaction that amazon required almost out of time and i just want to specify what makes this case different is there's no request for accommodation there's no information provided to the employer that the job is worsening miss kelly's health condition miss kelly didn't tell them that her performance problem was linked to her medical conditions those are all facts that are in the cases that are relied on by plaintiff and they are not present here the district court correctly found that there was no genuine issue for a jury to decide on these claims improperly dismissed them thank you thank you counsel let's have two minutes thank you your honor i'll touch on the notice argument again amazon argues the killing never gave gave notice and kelly needed to tell amazon about the link between the performance problems and a medical condition practically speaking jody kelley is not a doctor but legally speaking it was not miss kelly's burden to provide such notice and i base that off of the washington state supreme court case of goodman vs boeing one twenty seven washington second and it's page four a wait and there the state supreme court says under the washington law against discrimination against different standard than the eighty a an employee does not need to explain the full nature and extent of her disability right but there has to be some indication that the authority disability has a nexus to their job or their job performance that's where the interactive process comes into play and to make that link i want to direct the court to document number two ninety eight that is amazon's page on the excerpts of record are you two nine  eight and that's why it's amazon it's a policy and it's a guide to shift bid special requests and i want to direct you to the bottom of that policy essentially if an employee comes in and says i need to miss work for whatever reason the policy initially gives the employees manager the options we'll see some guidelines but then the policy goes on to say if the employee is requesting time off of work because of a medical reason then the policy says that the company will engage in the interactive process and again that's towards the bottom of that policy and here the company knew that miss kelley had migraines and in dimitrios s but never engaged in the interactive process and i want to find interactive process problem is there's not that link even even though they knew she had migraines and materials there wasn't the link between this is why my tone of voice is affected when i'm with customers that i think that's the missing link that they were not aware of because they accommodate her they gave her a leave they gave her the work hours that she w had they followed that in turn into a dialogue instead of hey here's the sheet that says i get this time off and given her the time off it had they sat now on and spoken with her and said miss kelly we have problems about we know that you have migraines and enemy trio says we've been monitoring your calls we know there's problems with your tone given what you've told us already about your disability could you go back to your doctor and see if this tone is related have the chicken egg argument you know supreme court under the washington law against discrimination answers that question it's simple notice notice of the disability and then the employer enters into the good faith dialogue meaning here of the essential functions of your job which one of which is using your experience to retain the customer service experience and the company could sit down with us with miss kelly and say you know here's this is what we need you to do ensure the customers are happy we see that there's problems with your tone you've let us know that there are these disabilities is there a link and then miss kelly who is not a doctor can then take that to her doctor and the doctor can make that assessment which he did in this case don't you think the form read that last paragraph that you were referring to will evaluate all special accommodation requests and advise management accordingly accommodation requests from their team as soon as they received it when you let is their sentence saying doesn't it say that they have to rethink even accommodation requests in this case you combination request was time off relating to migraines and enemy trio service which were granted as to time off but still as her tone was getting worse the company was on notice and interactive process is continuing obligation that  the manager from the employee before it's given to h r correct but once h r gets the request then to constitute a good faith interactive process h r should go directly to the employee and speak directly to the employee because again just a piece of paper i think worked we're talking past each other because the record does not reflect that the particular request that you are saying should have triggered more commendation was made that's more i think we're missing  the connection because i just don't feel in the record where the request to accommodate the tone of voice implication with me beth i think that's what i think your problem is with your and again i'll just refer the court back to the goodman vs boeing case where the employee does not have to under the washing log instance from a nation again will different easier standard than the a t f a the employee does not have to advise the employee of the full nature