hawkins i'm here on behalf of the talent sheila holmes and we are here of the district court's decision granting summary judgment to the apparently on her eighty eight claim i'd like to begin by thanking the court for granting oral argument and in particular granting it telephonically i have a face made for radio and so i certainly appreciate appearing in this manner all kidding aside your honour's we are here appealing an eighty eight  judgment and there are three issues that are before the court on appeal the st two issues are essentially mirror images of each other and that is whether or not genuine issues of material fact exist as to whether or not a steel toe shoe requirement is an essential function for ms holmes his job and then at the same time the nd issue is whether or not genuine issues of material fact exist as to whether or not a reasonable accommodation is available to miss holmes  to exclude her or to exempt her from wearing steel toed shoes in her job and then the rd issue more of a procedural point but nevertheless important which is whether or not the district court abused its discretion in striking the declaration of arlene bland  as part of the summary judgment record now before i go through all of the points i want to get into us of those issues i want to emphasize to the court with this case is not and what this what the facts of this case do not show time that she could not be exempt from the steel toe shoes requirement i want to emphasize that in that time frame there were no new laws and active there were no certifications created there were no regulations promulgated the created for general dynamics or anyone else in this in this facility a previously unknown safety requirement or legal obligation the law that some places osha was enacted in one thousand nine hundred and seventy the c f r regulation that was in place here and that's that's governing the p p was one thousand nine hundred and seventy four the record reflects that there are certain kinds of private certifications there is what's called the i s o fourteen thousand and one which is a voluntary environmental regulation the record eighteen thousand and one which is a british regulation that came into place and nine hundred and ninety nine and the same is also true for for company rules and company procedures the thirty six representative for general dynamics at j two requirement and so it's important to emphasize that at least contextually there's nothing how there's no outside forces there's nothing independent of the workplace itself that caused any obligations to be created that didn't already otherwise in this timeframe i think the record reflects also undisputedly that in the same timeframe ms holmes she's she never had this function essential to her the record reflects of course that miss home suffers from a bracket black recommendatory see say that faster times which is a congenital deformity or congenital disease that caused her to have to form feet and cause also rationed on her toes when she wears these deals so she was there when she tried to wear the steel toed shoes and she offers also suffers from diabetes which causes her circulation problems and i think kind of the best example or best  that background that we have a competing narrative we have on the one hand issues of safety compliance and policies and rules and on the other hand you have a unbroken period of eleven years where miss miss holmes did not wear or was not required to wear these these so called safety shoes and so on these facts and on this record a jury could reasonably conclude at least one of two things favorable to ms holmes the st is that if there was a safety policy of general dynamics it was safety in name only it wasn't on the ground the sort of a de facto versus a dish or a policy do they say it on the one hand and riding but when it down to the people on the ground that's not how applied or and this is just as reasonable there's a safety policy at general dynamics but it is flexible for people such as mr holmes who have a medical just medically justifiable basis for not  having to comply with this particular policy and we believe the district court erred in failing to recognize that the record evidence allows for this conclusion and in fact we believe the record reflects that the district court who is a fantastic district court judge and i have the greatest of respect for him but we believe the district court engaged in improper weighing of the facts as well as speculation about facts that weren't even in the record and i point the court today five hundred and seventy one which is part of the district court's opinion where the district court talks about the undisputed facts show the general dynamics had legitimate business reasons for requiring homes to wear safety shoes exempting her from this requirement could have jeopardized that certification in standing in various organizations and agencies and the record doesn't reflect that the record reflects that for those persons for whom there was no medical justification for whom wearing steel toed shoes was an inconvenience then that might have keenan i'm concerned about how we would write an opinion in your favor in this case because wouldn't we be required to say that an employer must allow an employee to continue with job that creates a safety risk for that employ way you know there which you seem to be suggesting there's in the stockwell principle at work here that just because general dynamics did nothing for eleven an employer is required to allow an unsafe practice that unsafe practice is required for the employee to maintain your job your honor that's an excellent question  and that is that is the headwind that i've been against the entire time in this case and i think this is extremely valid to ask him to focus on that my response is that when talking about safety when talking about an employer's decision to say all right this is our policy in this context and i would ask the court in focusing on that question to look at the unique factual context that's before this court on this record it isn't just that there is an eleven year record of of one behavior and then a switch it's that that it's what the eleven year behavior signifies it's what is it is properly inferred based on that eleven year behavior the can't be that safety is such an important or overriding concern as to this requirement if it hasn't been enforced or hasn't been allowed to be enforced considerations safety of the employee versus safety issues for the company and say that requiring p p to be worn is not a hard d and fast rule where the wearing of that p p would in fact create a hazard for the employee and that regulation it doesn't like on all fours with this case address that issue but what it does do is it is it shows that it is it is not a situation where this court has to choose between blessing an unsafe practice or or saying that something is an unsafe practice versus saying that something is an accommodation or something has no central function it's write statement of your argument that your client has set forth an eighty eight claim because she has alleged facts supporting her contention that with reasonable accommodation she could perform the essential then i apologize if my brief is a little bit too focused on ms holmes versus safety considerations i don't why don't i don't discount those and i certainly don't under emphasize those but i do think that in this particular fact situation arguments about safety an argument that's compliance of certification those sorts of things are best stated to the jury particularly because the record reflects that despite saying these things were so so important the company did not even call ocean or did not even inquire as to whether or not there were any kind of of i won't say a skate fell's but i'll say  ways to accommodate ms holmes under the circumstances and i do think it's important to emphasize that she worked for eleven years without concerns about safety and it's not in the stoppel issue per se but what it does show at least in our present opinion is that it does show that there is a genuine dispute a fact as to whether or not this safety rule really does apply in this particular context what we're not saying i want to be very clear about this we are not saying that jenny general dynamics has has no obligation to enforce safety rules and we're not saying that anyone in every everyone who has ever gotten away with or been able to hide the fact that they were not wearing safe safety shoes is now somehow free and clear that is not we're saying this is a situation where ms holmes and i do think the record is clear on this she wasn't simply trying to disguise the fact that she wasn't wearing safety shoes for many here is what happened is somebody would come around and then they do you have to wear safety shoes and she would show her doctors and that is a perfectly reasonable thing to do under these circumstance and we invite the court that it doesn't really look like an essential function and i realize that we have the nuance of safety and that is that is kind of the overlay here but i don't think that rule is any different i think that rule is consistent with this court's opinion jacobson i think it's consistent with the c f r regulations that refer to the past practices of the the incumbent employee when asking whether or not something is and is or is not an essential function so we understand that there have been some quote areas of lax enforcement  some confusion as to whether we're dealing with in that small job function here or a qualification standard to perform the job in this it's a qualification standard rather than an essential function  what impact that venue did that have on our review of the case well to me that makes it even easier because she's qualified for the job no but it is but a standard in other words you can't get a job unless you wear the as opposed to wearing the suits being a punks in the job is there a difference in the analysis there or not well i don't think there's any doubt i mean and factually it's true i think you can perform the job without wearing a shoe that's the extra construct that of safety it isn't is it one of those things that you have to be able to do like it's not a it's not a lifting of a heavy drill or the lifting of heavy items for purposes of your job that i will also say or that it's great to conclude that we're compliant with that the last thing i'll say on this particular point before i leave for rebuttal is that this is not a direct evidence case at least not at this time on this record nor is it a business assessed the case this is a simple qualification do we meet the basic threshold elements for the a b a and so in talking about things like direct threats or safety those are the burden of the the defendant the appellate and those can be addressed if at all later down the road a trial so we ask that the district court's decision be reversed and we ask that the court recognize the genuine material genuine issues of hazards that mr holmes faced in the shelter production area of the plant as the record describes this production area contains a clip meant drills which would have bits all known as well as the materials themselves that could crush a person's foot that in fact is not in dispute miss holmes lawyer before the trial judge a joint appendix five hundred and thirty nine and mid that there were these kinds of workplace hazards in the fabric in the shelter fabrication area in the plant it's not reasonable to have an employee working in that area in ten issues in fact compliance with this osha standard and the safety standard is set forth in the briefs very clear it says employers are to ensure that each affected employee uses protective footwear when working in areas where there is a danger of slipping injuries there is no dispute that the hazards in this working area present a danger for the injuries now the company as the record describes was not fully compliant enforcing this safety standard as to miss home that is not in dispute but it's never too late for a company to take corrective action and get into full compliance and what happened in june of two thousand and thirteen is they had an outside safety auditor come in as part of the certifications that mr holmes and miss holmes is counsel and then a fide to come in and valuate the safety procedures in the plant and in and during that audit they discovered that somebody not this homes but another employee was working in the shelter fabrication area and not wearing safety shoes that triggered a write up and if there was another violation like that that would result in a major infraction and the company would be in jeopardy of losing those certifications which which are necessary to do business d with the federal government especially so in response to that discovery they decided d it's not too late to take direct corrective action and to get into full compliance is the record describes the the word went out there were meetings with the supervisors that we are not making any exceptions anymore including with respect to miss holmes that we were going to come into full compliance and as part of that process they engaged in an interactive process with ms holmes trying to find alternative safety footwear that would also accommodate her particular medical situation d as well as the hazards in the workplace this was not just insisting that she wear steel toed shoes there were efforts as were d as were described to come up with other alternatives that had composite materials that would protect her feet from serious injury in fact the company indicated it's borne out in the record that she actually could come up with a custom made shoes and the company would pay for it so while while counsel for ms holmes and saying there's a nuance of safety i would argue that safety was paramount and in who had difficulty who was unable to wear the steel toed safety shoes so that position in the case that he should be able to wear sneakers and the court and long ised the how do you reckon file the need for honoring the ocean mandate to protect from foot injuries while at the same time addressing the obligations of under the a da to deal with reasonable accommodation and the court discussed the e e o c guidance and to guidance there's actually a fact pattern it's very similar to the fact pattern is before the court and it's discussed in footnote six of the opinion but let me just if i can just tell you what the guidance is it's example forty dollars i'm just going to read it in for an employer pursuant to an osha regulation requires employees to wear steel toed boots an employee has severe burns on his feet and legs that prevent him from wearing these types of boots no accommodation  possible and so he asks for an exemption the a b a does not prevent employers from complying with other federal laws including the occupational safety and health act which requires employees working in certain jobs industries or positions to wear particular items of clothing or protective gear under the circumstances the employer may insist that the employee wear steel toed tool steel toed boots and because the employee cannot comply with this rule he is not qualified general dynamics did not just insist that she wear steel toed boots indicated they tried to come up with alternatives over almost a two year period during that two p two year period as a record reflects they tried to find alternatives that would work it wasn't simply steel toed boots your honor with your honor's with respect to the obligation to comply the  company in fact was trying to do a better job of that there's no dispute about it but it was an essential requirement of the job that this individual where some protective footwear the  osha guidance that is cited in the briefs and discussed does not dictate a different result the the guidance does not say if if there is a hazard you can simply throw up your hands and say we're going to agree to any and all accommodations even if the accommodation does not protect the individual's foot in fact the guidance talks about the interactive process which is what the company did in fact do here so we from our view your honor there is no there is no jury question because compliance with this osha standard is not optional it is mandatory and while it is true that there was noncompliance with respect to mr holmes for a significant period of time that indicated before d it's never too late to take corrective action and get into full compliance and finally your honor with respect to the issue of the sanctions which i am anticipating the council will address we maintained that the court district court crew clearly weighed the evidence and concluded that the appropriate sanction in this particular instance was striking the late down the five the cleric the mission was not substantially justified the mission was not harmless and as the cases say the parties are not to engage in trial by ambush there was an obligation on the part of counsel for ms holmes to indicate to disclose sooner with respect to the initial disclosures as well as to the you know arbitrary answers that miss plant was actually a fact witness that would rebut the company's statement that they had they were forcing this particular osha safety other side just referenced the osteo gaze and what i would say is what you don't have in that case is an issue of whether or not there was a path a past practice which is central to our entire argument here and it's also relevant to the issue of whether or not safety is in fact or compliance with the safety of the geisha is in fact something that can be exempted or something that cannot be adjusted i believe on this record and and i've looked at other cases the parties have cited cases to the to the court i have not found any case where you have more than a decade's worth of practice that all of a sudden gets banded in order to quote strictly comply with an obligation for which the company should have been strictly complying from the very beginning  and it's not to say that you can't do that i'm not saying the company can never change its mind but but in this particular situation again as we've stated at the opening nothing changed absolutely nothing changed the audit that they focus on didn't focus on an employee like ms holmes who had a medical condition that focused on somebody who was flouting the policy and had continuously fly out of the policy and didn't want to follow the policy as general as a matter of convenience that is not the situation we have here and we don't have a situation as the example from from counsel pointed out in the sea guidance with the with the burns where it was a choice between not being able to perform a job and not complying with the safety procedure that we have a situation where we have a past practice that evidence and i think this is very important evidence is that ms holmes has been safely performing this job for more than a decade  and so when you talk about safety concerns now it falls on a little bit of a deaf ear and i think at this point it certainly defeats the argument at least that the summary judgment stage that counsel is able ago to paraphrase the supreme court we believe that by weighing the evidence and reaching factual inference is contrary to the plaintiff's competent evidence the court below neglected to adhere to the fundamental principle that the summary judgment stage reasonable inferences should be drawn in favor of the non say regarding why the osha requirement doesn't matter in this case why is the osha requirement desmond to proceed all other considerations of general dynamics right to rely on your requirement to demonstrate the business the necessity like they case in the exxon case in the other circuit certainly what i would say is that i would say that osha has the out and we have to we have cited to the court we saw it to the district court the guidance the interpretive guidance that says you do not require you are not required to choose between one hazard or another when it comes to p p the other hazard here which is not speculative it's not it's not a serial it is a concrete hazard to ms holmes to to to to have damage done osha allows osha osha allows for this kind of a choice one versus safety one hazard versus another hazard and in this and again it's fact specific and then you're saying that that is the employee choice then is that where you're where you're coming down on sounds like well i'm saying that you can't discount the employees hazard in those circumstances  in this particular situation osha regulation allows for a flexible decision making process and i guess i took to respond directly to your question your honor in this particular instance  on this one which is important there was no question it needed a lot of interactive process about the type of shoe to be worn but there was never any inquiry as to whether or not this regulation allows for the flexibility that we want contend it does and to believe the facts support and so on this record that flexibility was never inquired into by general dynamics and that would have been the way to defend against  past practice eleven years in the other direction so with that said your honors i will i will rest on the briefs as to the motion to strike and unless the court has any other questions i would ask the court reversed the district court and find