trial i'd like to reserve five minutes of my fifteen for rebuttal of i may direct you to thank you this is a complex factual record and there's not enough time to rehearse all of the facts or to to address every single ruling that the trial court made and so i want to start by saying the big picture is from our perspective that the pudi has larded the record with a whole bunch of irrelevancies the things that they did right in the course of ms ogden employment are not a defense to the things that they did wrong and the things have not been sued and then you look at the district court's decision and you can see where maybe some of those facts influenced her outcome in this case against the adverse action supervisor about applying for she was told she was not qualified and did not follow through with any kind of application on that night she had indicated an interest in that job previously correct regardless of whether she had formally applied for it yes in the course of her treatment she thought maybe and given the problems she was having she thought maybe this was a better alternative and she was told by her supervisor no that's not a better alternative don't do that the position was eliminated before she was moved into that position and then it was reopened at some point the records not entirely clear on when it was reopened is there any other adverse employment action you're claiming if we're talking about adverse employment action for purposes of triggering disparate treatment liability under the a d a s and the washington law against discrimination there are it's that and the delay of the career advancement path and that was in june of two thousand and nine but i want to focus on that  supervisory authority over any other personnel that's something that she had before as administrative support services supervisor she had obviously different duties and job description required it had different qualifications and skill set it was in a lower place in the company organizational chart it was perceived like i said as a demotion by cohen ploy yes and i had decreased promotion advancement and earning opportunities in that position in your view is she still capable of performing her previous job yes with capable of performing the job with this caviar she was entitled contractually at certain times to long term or to short term disability benefits she was entitled legally to accommodations under the americans with disabilities act in the washington log cisco nation as well as being entitled legally to the leave and non retaliation noninterference requirements under the family medical leave with those legal and contractual requirements satisfied yes the problem was  y job her previous supervisor job was assigned to another person and then they said that well maybe they were a little other duties thrown in there i thought it was a lemonade and i thought the records show that it was that jets just she contends that it was not eliminated that her job duties were reassigned to another person who just basically stepped into her position they contend that that person also got some additional duties which made the job wholly diffused is there a different title to the job regardless i don't remember  and i have a question i'm not sure this was raised to what i'm trying to remember when this case was filed twenty two well approximately sounds you know sounds about right so and this you know there's other things going on besides the tangible job detriments or the tangible job loss is that what we consider the demotion for the reasons i've stated you know there's other reasons too that are reflected the record it was in an isolated location she was locked out of the building she was previously supposed to be in and they called this building the trailer trash because she was working there in the silence isolated location by herself and there's there's another reason to consider this a demotion too and that's the reasons why they did it now they say that this was a reorganization and we know that from reserves the sanderson of the whole line of cases that pretextual reasons for committing an action an employer taking an action are affirmative evidence of discriminatory enemas what ha damages aside from a cell phone are attributable to the transfer to a different job decreased opportunities for advancement salary increases can i can i tell you how much she would have gotten at this point you know at this stage of the proceedings i don't have an expert report laying that out but that was that was one of the more tangible aspects of the of the change we have direct evidence at the time that this transfer demotion  non reinstatement was made and that is that that the earth supervisor said you're getting this because you were tagging in taking out that this true that statement was true she was coming and going a necessity because of her physical condition and i mean and i've not really sure what to make of it it's like saying you were gone a lot and now you're back and you take the absences that constitute a reasonable accommodation or protected leave under the family member and it's your view that you can't mention that you've been gone at all even if it's true you know but you can't you obviously obviously everybody knows that she's been gone but you can't say you're being put in this position which has the differences that i've outlined because you're tagging in and taking out especially when they now come back and say oh this was a reorganization we had  problems well it in the reproduce any headcount they didn't make any meaningful change to the job duties and yet and that isn't what they said at the time but they feel the need to justify the demotion on terms other than tagging in and tagging out and that's because they recognise that that's that's a culpable an in call paging statement and we know it's an income plating statement from prior history too because the alec is another employee of the public utility district who the decision maker in this case ms woodward asked my client ms will ogden to change her job duties to make it harder for her to do her job because she had been quote tagging in and tagging out and that was cause for alarm as to what was happening to miss ogden in this case and it and it gets to the heart you know the way that the tone of the questions that you're asking mirrors the tone that the district court judge took in this case which isn't you know we've got a bare naked documentary record here and you don't get the the inflection the meaning the context from that that a jury is supposed to resolve and of the best way i can think of to do this is you know when there are competing inferences that can be drawn from the same facts right you got an e mail that says something you've got a comment from a supervisor says i'm doing this because you were taking and taking you know how how do you know whether that's discriminatory animus or entirely innocuous you don't that's the jury's job and the best example i can think of is probably lots of examples that we could use is is just to take the sentence woman without her man is nothing right i pause after  woman and the sentence means one thing if i if i pause differently and i say woman without her man which my wife would be appalled that i would say that is nothing right the meaning is exactly the opposite that is a legitimate nondiscriminatory reason so here it seems to me that we're at the last step of mcdonnell douglas and i write about that you know we're hanging your hat on direct evidence of discrimination tagging in and taking out and then the comment about face time when it comes to the link so you think that would not be a legitimate nondiscriminatory reason if in fact the reason was a reorganization it's a  rationalization well that's one point and i'll try my asking you the question right and but we've got direct evidence we don't get to pretext if you've got direct evidence of discrimination and you've got a substantial factor test of causation in a discrimination case under evidence of this criminal with respect to the demotion the tagging in taking out comment it's just like saying i'm doing it because you're black she said i'm doing it because you took leave same with the delay of the career advancement i'm doing it because you lack face time here not because she hadn't completed the requirements nesa to necessary for advancement on the career path and then we get to f m l a and all i want to say about this is this isn't a matter of pretext she's got a statutory right to be reinstated to the heading into my rebuttal but i want to say this so that the other side can have a fair chance to respond she's got a statutory right and it to be reinstated to the same or an equivalent position if you look at the rev regulation if don't function exists if the if the position exists wouldn't have otherwise been and it's their burden to prove that it wouldn't have otherwise been which is different than the way that the superior court decided this case they decided it solely under a pretext analysis ignored the other direct and circumstantial evidence of discrimination which is outlined at some length in the record and put its thumb on the scales when it came to disregarding the calculations of hours worked by ms and the entitlement to leave that up ms ogden soon before she got involved reuters you ever come confront them with her version of the number of hours there was no need to because they admitted at all times before litigation they admitted she was entitled to leave  under the family medical leave out of my question to ever confront them with with the with the fact that she worked these extra hours and all of the things that apparently she put in her own decoration confront no common knowledge  she didn't have enough hours instead they designated this is f m l a qualifying leave so there was no dispute about hours until we get the lawsuit so she got a benefit that she asked for that we got the  ok she did not get reinstated thank you thank you you have some rebel time remaining we'll hear from mr winter  there was a job elimination the record is absolutely clear on that fact there is no evidence in the record that indicates that even suggests that the administrative support supervisor position continued be on the date that ms augured was advised that was being eliminated that's beyond dispute second the idea that the employer cannot act on the fact that there  a history of the of an inability to maintain any sort of attendance any sort of reliable attendance in a supervisory position is contrary to law including ninth circuit  panel and that's the concept that as a rule if you fire someone or demote them assuming this was a demotion for present purposes if you fire someone or take ever say action against them for conduct that is disability related then you are by definition taking that action based on the disability and that's unlawful we don't dispute that but that is the principle that cannot be applied in a disability there's a claim that isn't this case that tagging in tags let me just make sure i understand one thing about this as i understand it the two adverse employment actions that are claimed are the transfer or demotion to a different and the delay of three months or some period of time to lay in the career path intentional for advancement i don't take that there doesn't ever section but of course in rebuttal he can make any points on that but i want to your view on that my point is that there is nothing no legal significance no adverse inference to be drawn from a tagging in tagging out comment given the point in time at which it was made and it's undisputed as to when that point in time was we're talking about a comment being made in or about january of two thousand and eleven by that point in time ogden had already had the benefit of multiple periods of leave to the tune of some twenty to thirty weeks of time off both f m l a and non f m l a ms ogden was making the point that hey that's a problem we've tried to accommodate for the better part since october of two thousand and eight that accommodation effort happened the comments not made till january of two thousand and eleven we have spent the better part of two and a half years trying to support you and see if we can turn the corner on these issues such as you can actually be here to perform this job what is your position with regard to the delay of career path opportunity for delay there's nothing in the disability discrimination law or the f in the late for that for that matter that indicates that the fact that someone takes time off as an accommodation or for f m l a purposes can not factor into well no that's exactly what i'm asking i may not have asked in a very artful form but accommodation can take many forms and one form of accommodation would be to say even though you've been absent we won't because it's been because of a disability and otherwise you've been at your employee we won't delay your career path as we would have if you had just taken a long vacation so i guess my question is whether whether that is a required or potentially whether there's a factual issue as to whether that would have been a required combination you know my point your honor is actually that it is that it is not and that the law is actually clear on that point you may default to the for example because if in the laces right in the regulation it draws a distinction which i think applies with equal force to disability law in general and that distinction is that you if you were going to allow someone if you were to provide some it's make it sort of black and white if you apply a pay raise across the board so this person's been out on leave for an extended period of time while they're on leave you decide you know what we're going to go four percent pay raise across the board you can't not provide that pay raise to the person who's out on disability leave that would be unlawful differential treatment that would be or a failure to accommodate conversely and the case was clear on this if you have a pay raise but they have not yet done those steps those performance pay steps in order to qualify for that particular payment then they're not entitled to that payment could an employer nevertheless give them that benefit absolutely is there any legal requirement to do it under the f m elaine or disability law the answer's no and here you if you look at this record you will see the district being very mindful to persistently that distinction the example that i just gave about a four percent across the board pay raise is not theoretical that's exactly what happened in this context while miss are going was on one of her leaves there was that type of an increase fact it happened twice there was also a two percent lump sum increase she got the benefit of both of those payments because they weren't tied to any sort of benchmark she was treated like everybody else the only time that her career path was delayed at all was where it was and it's undisputed where it was based on the performance of the attainment of sir benchmarks which by the way if they had just if the form of accommodation there was actually to extend the deadline and there were more opportunity to meet those benchmarks if they had said to her right then well look we're at june twenty ninth step one in the learning curve and you haven't finished these things so you know what done you fail that particular aspect of the learning curve then there would be a claim but that's not what happened they did with they're allowed to do they do with the required to do which is it just to give her additional time you also see that in two or three instances they then turn around and made the uptick in her compensation retroactive so they gave her the benefit of the compensation despite the fact that they had to lay the deadline for accomplishing the underlying performance benchmark and were briefly touched to other issues one is this idea of direct evidence because that is prominently displayed in the in the records and that was also a linchpin of the comments made by opposing counsel a moment ago and then i want to briefly address the f m l a interference claim on the direct evidence this again goes back to the tagging in tagging out concept we have cited to the court a slew of cases predominantly federal law not exclusively but predominately federal law including from the ninth circuit have addressed the types of remarks that are being proffered here today and have had to make a judgment as to are those sufficiently reflective of some sort of discriminatory animus to first will be admissible and the second of all to defeat a otherwise properly supported motion for summary judgment the cases that we have cited to t he court or the cases that have have held no that benchmark has not been met i'm not going to walk through each one of those suffice it to say though that many of those decisions including before this court involve statements that were far more directly or intuitively suggestive of some sort of unlawful animus than the type of remarks that we have here today here today we're talking about a tagging in tagging out remark which again in context was factually true made sense to to be stated and was stated in part to explain an action that was being taken well truly isn't quite enough if he is i take it i strew and if explains why she could not perform the duties of her supervisory position absolutely right because if it was true but irrelevant it would support clam every example if they said well you know we now that you have surgery on your left arm you look crummy and we're not putting you back in that job it's true perhaps but would be supportive so it seems like the key question is whether those absences that were correctly identified rendered her unable to perform those duties i agree one hundred percent year on i did mean that came off a bit flip my comment there my point here though is that the the the lid the the weight to be given to these types of remarks is analyzed from several different dimensions those are laid out in the briefing two of them you have just flag my point here is that on all of those dimensions these particular alleged remarks fall far far short not only of being direct evidence of any sort of a lawful and most but even being circumstantial evidence under these circumstances i might add that the comment by ms miss woodward regarding tagging in tagging out awful also proved to be not only accurate looking backward but it proved to be accurate looking forward she this isn't a case where someone said you know what you've taken all this leave we're going to move you into this other position because we're eliminating your position and then lo and behold they maintain perfect attendance from that point forward and that they've just been given that one opportunity there would have been an issue this is a situation where this individual from the date of the alleged remark about tagging and tagging out going forward proceeded to take three or four more periods of leave to the tune of forty or fifty weeks off that's a long period of additional time that that person was off the decision was sound and no matter what perspective you adopt and trying to in that analyze it second and last point on this this issue of the decision to move there's been no inconsistency in the representations to ms ogden as to the whys and wherefores behind that decision we put before the court a slew of documents this isn't testimony this is after the fact back fill by some wise witness these are contemporaneous memos that went to residents of grant county there when two employees of grant county that were published at the time in two thousand and nine two thousand and ten and into two thousand and eleven that talked about the severe financial strain on the district and identify those reasons we've put into the record related email that shows in discussion among management including ms woodward at the direction of dist of the district's senior leadership saying you need to find areas where you can cut costs and cutting costs can include can include exactly what this organization organization did when they explained to her that one of the reasons we're going to make this move is because of the tagging in tag now that's not inconsistent that's part of the overall explanation of events they're being crucified now for being candid and honest with her then the f m a late claim your honor i won't address the retaliation claim i think that's address was sufficiently in the briefs on the interference claim couple of major points first that analysis doesn't even take off unless you can you can put evidence in the record that really establishes that the job was not in fact eliminated and for the reasons that we say it was  liminated if that job was eliminated there's no restoration right the f m l a doesn't require an employer to keep positions in place for ever even when it's against their their otherwise compelling business interests it simply says you can't remove a position you can't take action against an individual because the wrecks are sizing these rights that's the balance this law is trying to strike so the the our position is the unassailable nature of that decision precludes further analysis under the definitely interference claim however even if you go down that road the fact of the matter is that the f m l a makes clear that it looks to f l as a guidance in determining the calculation of hours work and the legitimacy of the underlying records the adequacy of the records here are the records and we've put them all in there or very very detailed as to ms didn't work many of them are signed by her they show variable start times they've shown variable and times these aren't notes on a napkin or some journal these are preprinted records in the show that the district was going overboard trying to remaining on to the delay of the career path there's nothing specific that she that they've identified that she didn't complete and john ogden's declaration of the record says there was nothing left to complete other than face time and that was what was held against her that's point number one point number two on what i'll call the straight remark case is obviously a straight remark in the workplace doesn't automatically give rise to a discrimination claim but the cases even cited by the district show that when they remark that can be interpreted as a discriminatory animus is made in relation to the decision in question like delay of the career path like the demotion then it is actionable evidence or it is evidence of a direct evidence of action is it your  this cannot be taken into account in determining whether someone remains qualified to be a supervisor yeah if it's an essential element that's a great question if it's an essential element of the job that is not being met by virtue of those absences then it can be taken into account that's not what they've ever said until they get into the summary judgment hearing below and here they have not said that she was not performing her job adequately and that was the reason for summary judgment it's a way of saying you were gonna a lot and your position is that if you're gonna a lot because of your disability it doesn't count or at least i think it sounds like that what your argument what she's able to say is you're not able to do your job maybe that's because of your disability maybe it's because of the absences related to the disability the key thing there is the ability to do the job and they've never said she wasn't able to do the job and that's why she was demoted or that's why her career path was transferred what they've said what they've said that they didn't even say that it wasn't that it was the absences they just said it was a reorganization and we've got evidence on the record from three people who say ok yeah maybe that was low snow pack maybe there was budgetary difficulties there are some conflicting revenants of the record it's not uniform on that that point but the bigger point was the reorganization has nothing to do with that because they didn't really they didn't decrease the headcount they didn't save any money catherine thought it went from three people to two you dispute that yes to twelve to fifteen is the declaration of donna kennedy says it actually increase to the costs in the department i didn't ask you about carson i asked you about i believe she says that they did not decrease the headcount they just eliminated vacant positions they didn't eliminate a position where anybody was in it they can or unfilled positions thank you counsel you may have a lawyers for very excellent and helpful presentations