me please the court my name is richard gray and i represent the appellant in the defendant autozone in this matter i'd like to reserve about four minutes for rebuttal the issue here is whether the district court once again abused it discretion in issuing your minuter regarding mr cosby's emotional distress damages in the amount of two hundred fifty thousand dollars for being placed on a one month leave of absence which resulted in mr cosby according to his own testimony being a little upset now i'd like to discuss three reasons why autozone believes that there remains an abuse of discretion here but first i think it's critical to keep in mind the specific factual context of cosby's of mr cosby's reasonable combination claim very briefly mr cosby was a district manager he was responsible for ten to twelve stores scattered across northern california he was required to spend by his own estimate to twenty hours averaged twenty hours a week driving to those stores in january of two thousand and six he apparently fell asleep at the wheel and his doctor restricted him from driving so autozone placed him on an unpaid medical leave of absence his his preferred accommodation at the time was to be allowed to work from home and have somebody else drive him to his stores during  because there's a find i'm not challenging the finding i'm challenging the sufficiency of the evidence regarding emotional distress yes and the fact is during a brief leave of absence he was diagnosed with sleep apnea he was fitted with one of these sleep masks and that's all that resolve the problem he returned to work in less than a month to a supportive environment by his own admission with no work restrictions so that's the reasonable combination factual context of the first of the three reason he didn't say it was a supportive environment he said they made some supportive comments he also said that they that they you know very soon after ones gave him a negative review when he never had a negative review and he was very angry  of the case here this court said quote to recover damages for motion in distress the injury must be severe i e substantial or enduring as distinguished from trivial or transitory and quote this court went on the security instructed to that standard the jury was not instructed in those words you were just given a general damages instruction correct i think that's correct where did where did that notion of it had to be enduring come from the case law but i thought it was and how turn it can't that's the language you have substantial or enduring that's what the case law says doesn't have to it has to be substantial or enduring your right all right to request an instruction that no it looks like was just the standard general damages instruction with giving in there was a reference in there to emotional harm or emotional damages that's right and i think a substantial number of the jury was an instructed you have to find stansell in a jury and it was just given the general janet damages instruction that's correct but that is the california case law of regarding emotional distress damages which which is controlling here well you know the jury was just acting according to the instructions that it was given through correct nobody challenge those instructions everybody apparently you agreed to those instructions that's correct so so  to this particular point you're trying to pry lion implication from something else but as to this particular issue there's an exact precise sentence and the precise sentence is and i quote even if the jury found this is from the district court you know it's better than your idea for mario i'm sorry i'm sorry this from from this court yes even if the jury found that although zones failure reasonably to accommodate contributed to his later terminations the evidence is insufficient to support the award that was the one that was the word for one point three million yes that's sentence can best be viewed as sort of an alternative holding in other words an additional reason why the evidence was insufficient to support the emotional distress wart the court was simply invoking a hypothetical to prove its point on its own take on with it they go on to discuss they had the determination damages why would they be doing that true true but the point is it that language does not in any way alter the ninth circuit's clear instruction to the district court that the amount of economic damages is not to exceed one month right there's no expressed finding by the ninth circuit but by necessary implication our position is this court must logically have concluded that the failure to accommodate did not cause the economic damages was the jury asked to find with regard to the retaliation and discrimination issues and they were child asked about both that  granting hospice physical disability a motivating reason for orders sounds decision to discharge randy cosseting now that's a different question and they said no and that's when they stopped and there's a parallel question with regard to retaliat notion that necessarily that because of what happened earlier there was a whole series of events essentially this man did become disaffected and did start doing a lousy job and they were entitled to fire him for that but in fact it was because there was a causal relationship between the original problem and what happened in the end problem is there's no evidence of that in the record of the causation the only evidence in the record is that mr cosby said that i was a little upset about being put on this course legal route that point but then a bunch of other things happened well the bunch of other things though dealt with his performance problems before he ever went on a leave of absence on march seventeenth a month after he left of two thousand and six a month after he returned from his leave of absence he was given three disciplinary documents the two most important ones were you made your evaluation covering a six month period before before he even wen t on the leave about when he was actually that's right but before he had ever requested a reasonable combination so and that's what put him on the performance improvement plan what happened after he came back is he just didn't improve enough under the under his sort of last chance performance improvement plan which related to his performance prior to the leave of absence prior to requesting the the accommodation so getting back to the point about the analytical consistency submit that this court's prior opinion must mean that just as with his economic damages mr cosby is not entitled to any non economic damages flowing from his terminations how can one be the case and the other not be in order to be consistent he's not entitle to any economic damages flowing from the terminations i mean non economic damages flowing from the terminations united states for shoes aircraft and i circuit case says that the law of the case applies to an appellate court quote explicit decisions as well as those decisions decided by necessary implication and quote so although in its in this court's riginal memorandum opinion from two thousand and eleven there's no explicit find it certainly is as a matter of logic and implicit finding the controls i might agree if there hadn't been the statement even if the jury found the judge was on went over with the earlier writing that seems to indicate that they you know even by implication well i respectfully disagree as i said before i think that's like i say kind of an alternative holding so to speak at their the court is posing a hypothetical on additional reason why there's insufficient evidence that even if there were this the court the prior panel with concern with the one point three million dollar awarded noneconomic damages they just in this evidence this record they just didn't think it supported the that's correct and one of the reasons was that the economic damages are limited to one month's pay i e but what the jury was the jury could well have found that  terminations that that the violation of his combination and failure to participate in interactive process was a factor a substantial factor in his terminations well they couldn't have founded on any evidence on the record when because there is no such evidence what did but he said he was a little upset he didn't say wait despite even though he said he was a little upset he was a little upset they still had the entire it with a nine day trial all that evidence and you know to be honest i haven't read every day the transcript of all of everything that was there but it seems like i'm reading the detail briefs that were presented to us with it especially the blue brief that you interactive process comes back from his forced leave they gets the negative evaluation and you know he he's upset externally upset with that his performance it's not up to snuff as you were just saying and few minutes ago i don't know why the jury couldn't of thought that couldn't have concluded that all of that was a factor a substantial factor in his determination because and then you look at that and you  look at what his reaction on the day that he was fired and while it may not add up to one point three million dollars judge carlton thought that it added that it was worth two hundred fifty thousand now whether i was sitting there would have given him two hundred fifty thousand is is another question but judge carlton having sat through all the evidence that was presented listen to everybody want to observe his demeanor witnesses demeanor in his carlton's judgment after ninety trial thought that two hundred fifty thousand dollars was sufficient i don't know i mean it's hard i appreciate your your concern and it does sound like a lot of money but it seems like there was evidence there to support it the problem is judge carlton relied substantially on and his upset during that period was upset at the end of the period but i have a slightly different question which is does it does it even have to have caused the terminations as opposed to have contributed to the degree of emotional distress he felt at the time  by everything that happened before quite aside from whether it was a terminations why isn't that good enough mr cosby himself said he's the one who brought the claim that my terminations was discriminatory and retaliatory jury said no it please the court my name is lawrence foam and i'm proud to represent randy cause me your honors i've already touched on many of the arguments and i was going to make i like to begin by first indicating that  was a typical substantial factor instruction number thirty three illegal cause of injury damage loss or harm is a cause which is a substantial factor in bringing about the injury or damage loss or harm  talking about the instruction on the failure to calm again this was the general instruction for the question which was as defendant's unlawful conduct a substantial factor in causing harm a substantial factor which causes harm is a factor which is more than remote or trivial in causing the right i'm not quite aware that instruction but my my earlier question about the damages instruction had to do with instruction thirty eight which was  general an instruction on general damages i mean just it you know it says the reason what you can award reasonable compensation or any pain suffering discomfort fears anxiety and other mental and emotional hort of zeroed in on enduring an enduring harm and i actually went back and first of all judge carlton and his order addressing this not only did he follow the exact mandate from ninth circuit to put the reasons but he actually sided to the young case which is sort of the case gilbert's case inside the gilchrist case they cited to the young versus bank of america case which is the exact legal standard that judge district judge carlton utilize so senior district judge carlton goes sees the exact legal standard then puts in his orders exactly what your honour's have been talking about which is that a reasonable could have concluded that there was severe emotional distress based on all of the various testimony and see of opus ness i wish i had been shot even goes on to talk about and quote from mr caused by his testimony into the future but where we are now yes is there is following a rematch from this court and after the jury said you were not wrongfully terminated correct what do you point to that supports even award a quarter of a million dollars that directly relates to the failure to accommodate first all of the evidence that his honor judge problem put into his order plus the various evidence that was cited in our briefs are lots of i've read that in it all sounds like his disappointment and disillusion the extent that that's evidence that can be consistent with a substantial factor so you have mr cosby having is disability rights protected under the fair employment and housing act being violated by the way with the finding from the jury that that violation was consistent with the ill will requisite for punitive damages even though they didn't do it so it's not like it was an administrative mistake it was a cruel thing that they did to mr cosby as decided by the jury and to fully answer your question your honor in fact going back through the testimony i would direct the court to reporters transcript thirteen fifty nine where mr gray is questioning my client mr cosby about issues that were connected with his failure to accommodate and then suggesting that somehow they're not related to the totality and it starts at line twenty page thirteen fifty nine question we just went through a list of four things fatigue tired nausea headaches  remember those answer ok question and we established the thought that those were tied to your undiagnosed sleep apnea and zero five answer correct question now other than those four items were there any other emotional injuries that you attributed to the allegations in your complaint answer you mean for me getting terminated from autozone question well if that's one of the allegations in your complaint then yes answer i mean i i mean i went through a lot of emotional distress when i was i mean i didn't sleep at nights i mean that caused a lot of problems for me when i was terminated from autozone that my understanding is  is asking you what you know the hole here if there is a hole is what's the connection between all of that and and the record and the  reasonable accommodation i mean my view is that there's no preclusion because there were the jury was challenged to consider on everything that was caused by that and the the decision with regard to the discrimination in retaliation what then ask the same question so that's not a legal problem but the question is why does the record show about the connection between the failure to accommodate and failure to gauge an interactive process and what his emotional distress and terminations assuming that that the emotional distress of terminations is otherwise sufficient  to answer that there were multiple factual instances in the terminations paperwork the eight reasons that they said that he had a poor attitude for instance and many of those reasons dated all the way back to his last point i'm sorry you lost that point is that point well what i'm saying is i thought you just asked me what evidence is there that the failure to accommodate cause mr caused his performance to decline by points  that's what i thought i was answering when i'm saying that he doesn't get accommodated as a result of that when he comes back from the accommodation they're getting in with their corrective action some of which dealt with issues that he could not do like the audit because he was not being properly accommodated during that time he's upset that he didn't get paid that's not ever made mention by the defense but his time on the beach was an unpaid time off when they're still telling him that they want him to check in with stores where at the same point when he comes back he's greeted then with a mid year review at the exact same time saying that for the lookback period which would include his time where he was not being accommodated he was failing to adequately perform and as judge carlton said having watched the evidence that this treatment could have so badly demoralized and just incentivized mr caused me that his performance began to slip in the way that defendants know or alternatively as posited by your honor this final insult where he's terminated in light of the fact that he was previously not accommodated could also have cause that the reality is not only in the eyes kind of cause not necessarily the terminations but the degree of upset at the terminal absolutely and and the most important thing to keep in mind in this particular instance is justice is protected here by two separate finders of fact the jury who saw everything and did what it did and then the senior judge of our eastern district of california judge carlton coming back in having read this court's and understanding the court's ruling including from opinion in his order and making a decision which he told me you're not going to like my remanded amount he specifically said that and the reality is it's just been so long and we opted to not have the new trial we also asked whether causation was going to have to be revisited that order which was from judge carleton specifically the family were to provide as he is one combination was a substantial factor in causing plaintiff's harms you have to prove that right which means all we had to prove if we even wanted to retry it would be well that causation analysis all it entails is that a cautious h not necessarily a cautious termination right and well and you could have even causes terminations it just must be more than remote or trivial in causing somebody to be terminated i come up with this scenario let's say that the person is a night bus driver and then they are there diagnosed with night blindness and then the they come back and said well look we can accommodate you you can either drive at night or that's it and then they start hammering  those performance because he doesn't show up to drive at night because he can't and then he's terminated for legitimate reason that he can't drive at night and that doesn't mean that the failure to accommodate him was not more than remotely trivial in his not showing up for work to drive at night i'm just making the point here that these substantial factors standard in terms of whether or not something causes harm is a very low standard and that there was sufficient evidence in this case and certainly  looking at the legal standards for when we re mand to a district judge and there's a remitted or has does judge carlton exercised his discretion in some way that is so patently and blatantly obvious that it although virtually unassailable now it should be changed clearly not and i don't need to use my entire time oh there's more questions from your honour's thank you very much thank you thank you i'll give you a minute for rebuttal you had about thirty five seconds of your honor's like i think judge hawkins got it right when he said that's off the charts it's not before us you lost that point judge in to get his remainder of two hundred fifty thousand he relied almost exclusively on the emotional distress ran a time when a fermentation not being unlawful was based on the understanding that it had to be motivated by the instant disability and i presume what you argued was well he just wasn't performing at that point and the jury agreed that he wasn't and therefore said you weren't discriminating against any worse for his disability but that's a different question from whether the failure to accommodate was a substantial cause and a harm that occurred when he was terminated that's right and there's no evidence of that he said he was a little upset the performance issues started before the leave of absence and he might have seen us through it all upset at that point but the evidence seems to demonstrate that he was very upset and he was angry and he was resistant and he was really not himself because he was always very it here roni asli thought his terminations was unlawful it was no not at the time of the terminations i'm talking in the interim period and which led to the terminations there's no evidence of that the only i believe he was a little i did read that has his testimony he was upset about getting the disciplinary issue documents yes but not about the leave of absence thank you ok thank you can't we we appreciate your arguments the matter is