thank you may it please the court counsel good afternoon my name is corey harbor and it's my privilege here today to appear on behalf of mr locke lao who joins us in the courtroom i would like to reserve three minutes for a battle with the court's permission court or in the building so they may come in ok that be great i'm sure the court is well aware and familiar with the facts surrounding the case so i would like to just proceed into what i feel are some of the more important issues without waiving in the of the arguments that were presented relating to mr allows title seven race national origin and retaliation claims i'd like to focus my comments today on the issues related to that we have dilatation and it's undisputed that the acts committed by mr allow were causally connected to his disability and that he was in fact terminated because of this disability that he was otherwise qualified for the position as a special agent and that a reasonable commutation did in of depression post traumatic stress disorder and a major life activity that it affects is what basically i believe it effects his ability to function as an agent now getting into the otherwise qualified which i'm assuming that's where you're relief in the form of psychiatric course and or psychological counseling this was denied to him despite the fact that the f b i was well aware and had actually recommended that it be provided to him but i just  he if he were provided the reasonable accommodation in this instance a leave of absence in order to address those issues i think that his doctors reports even though i realize the trial court did strike them due to serious attorney error i thought the trial level and i think that there was some indication that with the proper counseling medication therapy he could in fact be rehabilitated to the point that he could perform those duties that it was the need to address serious post traumatic stress disorder which occurred from his i guess the record reflects seven years of a deep undercover assignment that was never dealt with once that i guess into some point prior to the f b i doctors recommending that he take a leave of absence in order to address these concerns so certainly that would be a different set of facts than what we have here today i think what we're basically arguing i i recognized that as early as one nine hundred ninety into nothing to address that concern instead they for the first shoplifting incident they did suspend him for four fourteen days allowed him to continue for another four months in that under couple undercover situation which is no doubt very stressful and then once he had completed that assignment did nothing to address the concerns of an agent who had been under cover for such a long period of time i think the record reflects that the only the only help that they provided him was five days in the undercover safe guard unit and there are memos within the record that indicate that this was clearly against the policy and procedures fitness for duty and it wasn't until nine hundred ninety nine i believe that he was actually under review trying to get his top secret he did deny it to that this was symptomatic of someone who was suffering such post traumatic stress disorder and i think mr bell's letter if nothing else provides numerous issues of fact from which i it was as a prosecutor there were a lot of things you could tolerate from an f b i agent excessive drinking women izing that man ising whatever the equivalent is with the one thing no matter what they did whether they were in evidence an analyst a field agent a thing or print analysis of someone who simply went through intelligence reports was to candidly tell people the truth about what they have done and what they ha it don't they that the prosecutor cases get lost dangerous people go free or conversely innocent people might get it and to me that's the disturbing thing about this not that someone who  undergone a lot of stress might shoplift but that they not only wouldn't reported even after the long passage of time or with denial in the face of concrete evidence that actually in response to that i would just say a his his life in the bureau was nothing but a lie in for him then to come back from that assignment and be placed in a situation in which he never learned how to be a field agent and he went straight out of the academy into undercover assignment and i don't while it's not an excuse to say that he didn't know any better i think that his his experience in the first seven years was such that that's how he dealt with it i mean he was  daily faced with stressful situations while under cover where he had to react with the lives again it doesn't excuse it i think that had the issue been addressed when he first came out to infiltrate foreign gangs in hostile entities so i think definitely his being in a position where he was forced to testify that obviously is not going to be in his best interest but i still think that he could be very useful again because because the f b i realized and recognized the need for an accommodation and this was done after mr law had repeatedly requested that his doctor be allowed the proper security clearance to hear that things should have been precisely the opposite that they should have recognized or once they recognized the fact that there was a disability the office of professional responsibility terminations should have been held in abeyance until a reasonable accommodation could have been determined it can't be the case that preparation for a proposal a reasonable accommodation relieves an employer the responsibility of the rehabilitation act i mean if that were the case employers could terminate employees for their just ability related behavior and then escape sanctioned by merely claiming that they were preparing to accommodate and more aggressive this court noted in humphrey it would be inconsistent with the purposes of the  act to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action it was taken due to the disability thought to be accommodated now the court has applied a distinction between disability caused conduct and the disability itself evidence is not in the the record before the court yes in fact that is my understanding and ongoing process at this time it's possibly yes but i don't know as i'm not his attorney in that matter and i honestly do not have sufficient knowledge to present anything to the court on that issue i would want to misstate that the current affair of that disability process i honestly don't know right i don't know that that was an option or if it was i said i honestly don't know your honor i just think that in any event mr lott should be allowed his day in court in what a jury of his peers decide whether the properly handled his need for a reasonable accommodation and i just think that the district court arrogant in holding that there were no issues in material fact i think the record is full of them even if you consider only the ve letter i mean it never itself is the way the f b i handled this stated that he should have been given the proper treatment support the f b i didn't follow its own procedures in referring him to an employee assistance program or even the court counsel my name is christian door of the united states attorney in the eastern district of california i represent the attorney general responding to the question about mr lao status on disability he did retire on an o was hearing pro se i believe it was in january or february so he is receiving worker's comp benefits i don't think that issue addresses anything other than the fact that he has a disability it doesn't  a i don't know it's my understanding that a worker's comp award is approximately seventy five percent of the salary and it's tax free but i don't know that the dollar amount  disability there's no evidence in the record what that disability was but there was some that action of posttraumatic stress disorder that is nowhere in the record your honor there was no expert testimony explaining or describing disorder and sleep apnea right well there was no and no testimony in the record from any expert why is the government conceding disability then well in conversations with the f b i they believe that mr allow had personality disorders that have impaired his judgment and impaired his judgment as an f b i agent and we submitted that testimony in the form of the declaration from margaret gray who was  the f b i terminated him because of his disability and that is the burden that mr louse required to show the f b i terminated mr allow for the simple reason that he violated the bright line policy promulgated lying about the matter and the subsequent o p our investigation his failure to appear in superior court in response to a bench warrant there was no evidence of any causal connection any link between his criminal conduct conduct had to be agreed in the nature of something evil and violent and there's no the story to support that but i would suggest that when you are dealing with an f b i agent who is a sworn law enforcement officer who carries a gun that line resisting arrest failing to appear i sponsor a lawful court order and then whine in the subsequent p r investigation hundred lawas in a deep undercover sign that he had limited contact with other agents who had limited contact with his family by nine hundred ninety six he had been back for he would have been assigned from the chicago off the sacramento field office he was in a regular every day f b i agent position at one point he was an applicant coordinator not making arrests he was in a very low stress position so you've got a six year time period between the two shoplifting matters so while the deep undercover assignment in one nine hundred ninety was a very stressful the so the f b i recognized that in rather than firing him which they said they would have otherwise there but you're still have the same reaction from i mean i was saying if you keep saying there's nothing in the record but in fact the f b i itself earlier said there's a link between stress and what he's doing that's that's inappropriate so there is declaration in the excerpt of the record or the supplemental acts or and while they say those two professionals those two psychiatry psychologists found that while there was no major medical or psychiatric disorder which would doctors was for treatment and so the aid agency was going to give him the accommodation that he requested which was a leave of absence and but for this his criminal conduct the shop lifting the line the failure to appear that the process would have gone on and at the end of the three to six months of treatment they would have reevaluated whether he was fit to return as an agent now mr allows attorney has suggested done that and gone through the treatment and mr lao had been deemed fit to return to an agent the f b i still would have had an agent with criminal conduct that they had to deal with well if not then that the other day what we're talking about i mean you are considered a disability you know you kind of quibble about it and you will about causality but your central argument is that the bright line rule trumps everything it doesn't matter whether he's disabled or not it doesn't matter if the conduct is causeway related right was caused by disability or not it's not the kind of conduct that an f b i or that the f b i can tolerate in an agent he is of limited usefulness after his first shoplifting agent but there's no disability at all and you have a series of agents that if they don't they are diagnosed with any problems they go on track with identical records you treat them differently than you may have a discrimination claim isn't that where we are then and the question of conduct who committed identical crimes and gauged identical conduct differently if they were not disabled and then a disabled person then that's the guts of the claim and i'm not sure you have that anywhere in the record but that's that's the second leap to the question of whether or not the policy that would be if there was evidence in the record that the f b i treated other agents who lie so steal cheat in violation of policy created the more favorably then fired mr allow there might be an issue but there was no evidence in this record of the disciplinary actions against taken against other agents there is no evidence at ghibli yes arguably and then the materials that were submitted with the reply brief the two office of investigation excuse me the office of inspector general reports one was considered by the district court the two thousand  report was one of mr allows exhibits and district court properly rejected it because for two rita while the main reason was the report did not address any issues of race national origin retaliation or disability that o r g report strictly addressed the question of whether the f b i treated senior management more leniently than line agents and the report concluded there was not sufficient evidence  conclusion one way or the other the second report that was submitted post dated the district court grant of summary judgment and that report was a follow up and came to the same conclusion while there were still a perception in the f senior management was treated more leniently than line agents for similar conduct excuse me there was simply not enough evidence to reach a conclusion one way or another so there there is no evidence that was presented to the district court any admissible evidence that would support his race ethnicity disability or retaliation cl to support their employment decision their decision to fire mr allow the burden shifted to mr allow to produce evidence that that was a pretext for discrimination he did not do that there is no evidence in the record no evidence since it's been pointed out of this court that the application of this policy was a premier a pretext for discrimination and for that reason alone  cannot prevail on this appeal and i think it's also important to point out that all along mr lao has argued that the f b i did not consider his disability when they made the decision to fire him and if that's the case he certainly can't meet the third element of a prima facia case under the rehabilitation act which says he has to prove that he was terminated because of his disability he has always said they didn't consider  disability so that's the nail in the coffin on his rehabilitation act claim one last comment here on the otherwise qualified issue that we submitted on the supplemental briefing i don't think the it really matters whether you can show he was other guai qualified or not even if he made his we still go back to the legitimate nondiscriminatory neutral policy that said lying cheating and stealing cannot be tolerated in an f b i agent thank you th minutes thank you just in response to the right thank you so i think it's clearly distinguishable in that case the the employee i guess was forced to resign because he tested positive on a cocaine test  continued on couple of years we applied with the company and they rejected hiring him based on his prior conduct i think that's completely distinguish one that is dealing with illegal drugs which the a t f held you're not covered when you are i don't disagree with mr his position that they found the purpose of the study was the disparity in treatment between senior agents and in field agents i think there's still evidence there from which a jury could have concluded that agents were treated differently finally in responding to the argument that there was such a length of time between the first shoplifting event the undercover situation and then the  second shoplifting incident i think it's unique in that this the f b i was fully aware of the prior criminal conduct and they found that because it was directly related to the stress that he was suffering they determined that he would not be i mean i think this court is is aware that it is a continuing symptom that he was suffering from whether or not we had a doctor report say that he was suffering from post traumatic stress disorder and the f b i was fully aware of it and there were three different punished for that when in fact he had made every reasonable request for such an accommodation that was continually tonight and it just leaves him in a position that is i think ultimately