california for over fourteen years she had an unblemished record she had been promoted to new lead court security officer after only seven years and she was summarily terminated in august of two thousand  on the basis of and this reading of audio logical test results without ever speaking to her directly or doing any really individualized review this case was dismissed by the district court on construction your client situation we can all empathize with that i think the court today is called upon to construe a statute actually more than one statute and we're going to need your help to the walk through this in terms of the record and i'd like to start by asking you the following is there any evidence in the record that the inability to localize sound is in fact a substantial limitation on  room in fact looking at a group of people and not knowing which one is speaking because you can't tell from what side coming now raising this localizing sound as a major life well it came out and submitted a supplemental argument about a localizing sound being a major life activity in itself in light of the fact that head vs leisure decided that reading is a major life activity supplemental responses i submitted to supplemental papers in response to the motion for summary judgment dr cook was describing the kinds of things right activities that are dependent on the ability being a medical review officer and in fact the entire hearing standard interprets a certain level of hearing impairment as being unable to localize sound and that ms wharton individually is unable to local i sound represents a significant in a impairment in the daily life activity of hearing as well as i believe localizing sound being a major life activity in itself which problems are you trying to come under does not agree that she is unable to localize sound we are alleging that she is regarded as disabled they have a mistaken belief that she has a disabling disability she has impairment and they are and they are interpreting it as being more extreme than it is she does have some hearing impairment in one of her ears she does have some difference in her i know it's what's called unilateral hearing impairment and that is what causes difficulty in localizing sound according to the experts if you are not hearing sound in each ear at the same time then you will have some difficulty localizing sound even though dr shelton the medical review officer who reviewed her with her medical exams concluded that she has only be ability to hear from both ears and and be able to localize sounds the essential job requirement your honor is the ability to detect where sound is coming from so if so if they were  raw that she couldn't meet that standard then you wouldn't be here if they were correct that she could not like or i sound we would not be here that is right and what you're saying is that she came up short on a day in their view on a test which you were characterizing revealed some hearing impairment with the did not rise to the level of disqualification under the rule they did not rise t is the defendant's own subject matter expert has testified that using a hearing aid will always destruct the ability to localize sound similarly wearing radios in one ear plug into one ear will always disrupt the ability to uncle i sound disruption of the ability to localize sound there's not a disqualifying effect in other words you can still local i sound even though your ability is somewhat distracted she said that a reverberant environments composed of hard surfaces and high ceilings will disrupt the ability to localize  unable to localize town either because of a review of her medical result hurt her audiological testing results then or because of the standard of no more than twenty five decibels difference between characterization will assume for a moment reflects the marshall services but can you point me to any and i'm quoting that's three to six evidence about relevant labor markets or an identification of the problematic accepted as evidence that she is of that the marshal service regards miss walton as being unable to perform as a weapons carrying law enforcement officer with the marshal service carrying law enforcement however and that was the basis on which the district quite accepted that they do we guard her as being disabled with respect to weapons carrying law enforcement however court security officers are in a different category they don't work outside except in the perimeter of the buildings and more importantly they are permitted to use hearing aids and they say that the labor market is a much narrower market than what was discussed it's actually a much broader market it covers all central line foresman all state law enforcement all local law enforcement all private law enforcement it's entire class of any form of public or private law enforcement that carries a gun are you saying that your client is or is not would not be perceived in that market as being impaired i'm saying that the marshal service perceives her as impaired in that broad market it depends on the is there of the two experts the marshal service is our own experts who reported or cook who is the marshal service subject matter expert and dr mark kramer who is the marshal service litigation expert for purposes  in the broader category of law enforcement one force an officer should not be permitted to use hearing aids and localization is an issue if you're going for instance  auditory standards for the customs service that dr miller designed the plan for c f o used as a blueprint the customs service according to her report which is in the record is out there in boats and planes and all terrain vehicles police officers are on the street doing patrols recreational you know people parts rain park rangers people like that are outside and that they should not be working if they have certain limitations to their abilities to localise sounds from your perspective the only way for your client's case to be properly heard i disabled with respect to any law enforcement other than being a c s l and that the problem here is whether law enforcement in its very many broad categor of job or probably not a broad variety of jobs but the court below concluded that although she is regarded as not being able to perform law enforcement weapons carrying on enfor t the court concluded that weapons carrying law enforcement is not a class of jobs and suggested instead that being a dispatcher or an investigator are also law enforcement jobs and miss walton is not necessarily precluded from performing those jobs our position is there's no evidence of ms walton having any training or experience or skills as a dispatcher or an investigator she's been a weapons carrying active duty law enforcement officer for fourteen years she went to the san francisco police academy just because a dispatcher has considered something that is part of law enforcement doesn't meet the statutory requirements of what a an average person with the same training skills and abilities would be able to do would be precluded from doing or will be able to do if they did not have if they were not perceived reported experts who was never qualify as an expert stating here is the standard here's what the marshal service they're for the marshall services statement meets the standard there's no explanation of why that is the case there's no consideration of the l regulations under that standard why would localizing sound which is necessary in many insist reform the major life activity of hearing not be a major life like well known infant for at least two reasons first of all inconvenient to have difficulty in localizing sound precisely because one can compensate for it in other ways that i mean whether or not hearing in this case i mean cheering is a major life activity local motion for reconsideration there is no argument there that localization is a major life activity i would urge the court to go back and look at that belief because there is not a scintilla of arguments that regard with regard to the final major life activity here which is working this is a woman who's worked for fourteen years doing this she's trained doing this she was placed apartment place academy in san francisco how how do you translate that into well you do something else that's correct i mean an individual is not entitled to work in the job they're best suited to as long as their talents are utilized and in fact the course of people that have dealt with this question have considered individuals who have police officer and police officer training so there's there's no distinction she can't qualify for protection under the rehabilitation act and therefore both her facial challenge to the medical guidelines and her particular last challenge in her instance cannot prevail i will i will not that just reference initially your honor i'd like to point out that the e e o c vs u p s decision does not find dating standards for being regarded as disabled in that case the court found that there was no evidence that the pla were disabled because they were able to function despite their disability so then the court moved to regard it as disabled i think you have to go back to the sutton decision and see that after finding that the plaintiffs were not disabled because of their mitigating circumstances the court went right on to discuss regarded as disabled furthermore being able to move your head or visualize does not mitigate not being able being able to localize sound if you're looking at your shoes you cannot see traffic you don't know where sounds are coming from if you are unable to localize dr cock was talking about having difficulty localizing which is substantially different from what the marshals service believe for miss walton they said she is an able to localise and remember c f those are permitted to work with disruptive localization all the time the reason they fired her is because they concluded she is an able to localize and you can't just mitigate but visually or by moving your head when you have no idea where sounds are coming from if you're not looking at someone if you don't know where to move your head you're not going to be able to mitigate being unable to localize dr sweet oh by the way is the head of the audiology department at the university of california medical school in san francisco and that's obvious in his report he is one of the top audiologists in the country when he says that being an able to localize sound is a litigants impairment on the daily life to vary of working i'm sorry of hearing he knows what he's talking about he's one of the country's experts localization dr miller who wrote these standards is with respect to reading as a major life activity i did not bring this up in my motion for reconsideration i mentioned it but the brief that i presented to the court was in a subtle i'm sorry it's  actually based on reading as a major life activity the argument that being unable to localize sound is also a major lack of life activity that was not limited to my motion for because they hadn't had argument we're talking about yes as they had argument it wasn't a supplemental grief file before the court ruled on the defendant's motion for summary judgment when sutton said that being disabled from working did not fit those plaintiffs the quote was talking about being a global pilot and concluded that those plaintiffs could have been other kinds of pilots the court did not conclude that they could be baggage handlers or flight attendants just because that happens to be related to the aviation industry what you're looking at what the supreme court looked at what the ninth circuit has looked at is the kind of work that the plaintiff has been doing and in fact the ninth circuit although it's in the second e sound without any specific testing as to what degree they are impaired in their localization and at the same time we have people who are working with acknowledged destructed ability to localize