while in law enforcement duty she became permanently disabled from the accident and sought reasonable accommodations under the americans with disabilities that developers will refer to as the a b a so she could perform her duties as a sheriff's employee the discreet court reasonably excluded evidence of such a material nature that a new trial is necessary this excluded material evidence prohibited ms ford from telling the jury the full story of her disability and the harassment inflicted because the purge disability exclusion of this material evidence distorted the outcome of the trial so i want to give you a few examples of the  material evidence that distorted the outcome of the trial and that was excluded by the district court judge st the marion county sheriff's department gave miss ford a choice of the door that is resign or be fired or the dungeon the lowest ranked job in the basement of the jail making a rd less than her deputy job and the nd example is the bait and switch after ms ford accepted the accommodations that the marion county sheriff finally offered her they failed to ever train her supervisors employees about this for its disability in the a p a after promising to do so and rd they cut the district court cut off the evidence of eighteen months of harassment that the marion county sheriff's department of flicked on the sport through vastly hendricks so in essence the district court siloed the evidence in this case and a trial others that are resolved beforehand sometimes that are it's difficult to manage for the trial if i recall correctly you on behalf of ms ford moved  eliminate to exclude a great deal of evidence about those claims as to which summary judgment of the greater your are what we moved for is for the references to summary judgment and specific claims that were lost not to be referenced at the trial that we did not move for the evidence supporting our claim which was the claims that were actually going to trial we did not move to exclude that evidence even it was discussed in summary judgment well let me let me give you  i'm expressing a little bit of sympathy for the district judge in the situation there where i would give the simplest example a claim for disparate treatment discrimination goes out on summary judgment a claim for retaliation goes to trial or you can try the retaliation claim claim without some background about the underlying discrimination claim at the same time you don't want to try the whole discrimination claim you don't want to get the jury to get tied up in that that's a dilemma for a district judge which leads me to think there's good reason to give them an awful lot of discretion in making those judgments well your honor i think the difference here is that when you have a harassment claim the court is not supposed to silence the evidence as it did their harassment even if it's as in the isaacs case the plaintiff in that case had two different departments but she was with the same employer and in that case the court held that it in a ploy or are not vicariously liable for misconduct in the workplace employers are responsible for their own conduct which is a say for how they respond or fail to respond after receiving notice that employees may be suffering disparate treatment at coworkers hands and the court has held that when you have a harassment claim all of the incidents of harassment should be able to come in and be evidence of that harassment in this case the court cut off harassment that occurred before well you're talking about harassment of the court found was not based on disability as far as the employer knew correct with respect to his handlers not in the beginning the beginning part about where there were three choices the court held that that no we were to different i thought we were talking about the harassment well we are talking about the arrest now but we believe that that is part of the harassment what happened before the fourteen months of discrimination iraqis met by ms ladd as whites but we also believe that it hendricks now the court did hold you know was not only used on her disability but we respectfully disagree and we've also appealed that issue because if you look at the evidence on that plane there were several instances basis for employer liability the friction between hundreds of ford why put all that in front of the jury well there was i mean our position is there was a pay basis for important ability because the discrimination i mean the harassment was based on her disability can we talk and it's something we talk at some level of specificity about that evidence the other guys have been under it's because you outline it in few outline and on page twenty eight of your brief pages twenty eight and twenty nine and your adversary responds to it on page twenty nine of his of his brief sure st of all and i've told each of the email i've polled each of the documents ok great i saw it and i have both all of them in front of me right particular reference to disability that i see in the record and when you look at the four documents in particular that you draw our attention to in the brief one is a complaint about how hendrix performed her job with no reference whatsoever to disability anywhere in the memo another is an complaint about hendrix leaving early from work no mention of disability there's one about an argument plaintiff got into with hendricks no mention of disability and there's another about what is it using hand cream or something that has no mention of disability your honor if you look at the  gain several times she's saying that daschle was laughing at the time about having caught carpal tunnel syndrome you'll notice in that paragraph she said i explained to her again and then if the rd paragraph it's a i have said before that i do not feel that i have to justify to her that i am disabled again indicating that this is happened several times and then in the last paragraph it says i have asked for his assistance all more than one occasion and this is her supervisor johnson about and these are specifically about disability issues she didn't have to put all of her complaints in writing she put as referenced in this written memo though in june of two thousand and sixteen which the court only gave as one incident it clearly references that this is multiple times that vastly hendricks has grasped her on the basis of her disability and the court did not give credence to the testimony in this memo that talked about the multiple times that she had been hundreds she did testify to that we're i'm not sure if it was in her affidavit and but at trial the court wouldn't let it in so we were not allowed to i mean despite many many objections to the court not allowing this evidence in and in addition the other the opposing side open the door to much of this evidence in the court still would not allow it to come in so i do believe though that miss court specifically testified to this i believe that she also testif affidavit on summary judgment but the court at trial would not let evidence of this nature come in which is precisely the problem that we have that this arrest mut started before the court allowed the evidence to come in and it continued for eighteen months evidence from party opponent no i don't think that's the way it works but if she if she indeed testified that the contents of that were true that certainly would be admissible evidence correct but she wasn't allowed to testify that we weren't allowed to get the exhibit in evidence at trial and in addition you know mr ford was disciplined in july of two thousand and fifteen where having complained about missed her rassmann and was told by her supervisors that she was going to be hit in the pocketbook if she complained any further so it was very difficult for her to manage whether she should complain about mr hendricks when they told her she was going to to hit the pocketbook that means that she's going to be demoted and make even less money than she already was or that she was going to be fired and so they chilled her know this rassmann with this discipline that they gave her counsel your time is ticking down and you said the other category of evidence and in your briefs the other category of evidence that you say was improperly excluded as perceived failures in the interactive process correct but that's not a separate claim of course right and a right right is this i'm not clear on what the nature of your argument is about the judge exclusion of that evidence as creating jury confusion and and there are a delay because of its marginal relevance well we would take issue with that the relevance be marginal because we believe that that is part of the harassment that miss port suffered i mean harassment you know is not it may be done by individuals but the claim is against the employer and it shows that the employer harassed  her disability from the time she became permanently disabled and so it shows more harassment that's why we believe that the evidence was relevant and should have been admitted because it is evidence of harassment and not just at the district the evidence into these claims as being oh that's just part of the interactive process but that also shows that they were intact a distinct worthy a t a i and you know that is one of the reasons why ford should have been allowed to get that evidence and in addition we have the jury who found that ms ford had been harassed but just not on the basis of her disability and we believe that if this additional evidence could have been brought in about her disability and the additional harassment that she suffered at the hands of the marion county sheriff's department the jury would have had that context it would have seen that the marion county sheriff's department it wasn't just about kara lad and evil why it's you may the sheriff's department said it had a personality conflict with miss ford you know that could sell it to a jury and less the jury knows that the marion county sheriff's department has been antagonistic toward her every minute along the way every time she tried to say anything about the a day tried to get an accommodation under the ag a and there continue to be these constant daily barbs at her and jokes to her about her disability and if the jury could have heard the full evidence about the harassment that she suffered then the jury could have gotten over that hurdle about it being harassment on the basis of her disability and that's what we believe is fundamentally wrong about what the district  that evidence in addition to the district court also didn't allow in the evidence about the accommodations that the marion county sheriff's department did not provide to miss ford so he allowed the marion county sheriff's department to talk about all the accommodations they provided but would never allow us to discuss the ones that she did provide for they did provide for example they promised to train her supervisors about her disability and even though they  that in writing and followed up with them several times about doing so they never ever trained her supervisors about her disability or the a p a and when what we know is that when any employer tells a supervisor about an employee's disability and how she should be treated that's far different than miss for telling her supervisor that very same thing it carries weight it carries gravitas and that is what the marion county sheriff's department failed to do even though they agreed to do so and the court never allowed that evidence and that they never failed her they never trained her supervisors as they promised to do and did not do the other evidence that the the marin county sheriff's department opened the door to that they never the court never allow us to address in opening arguments during testimony and in closing arguments they talked about new sport having chose to work as a visitation clerk but that's not what happened in the court would never allow us to rebut that evidence that she chose to work in that position what actually happened is that she was given a choice to shadow two jobs and she chose the visitation clerk job as between these two low level jobs as being the only one that would accommodate her disability but it's not as if she chose to work as a visitation clerk and so therefore you know anything that the marion county sheriff's department did in connection with her employment or by not promoting her was somehow ok because she chose to work as a visitation it was at a challenge to the summary judgment ruling or what one of one of the things it's a little bit difficult is to try to keep track of there's there's so many different pieces of evidence you're talking about are they do they relate to the summary judgment rulings trial well i merely what i'm talking about is i saw in the on work in visitation it was visitation you know for lack of a better way to put it came about by process of elimination corroborative they were looking at what jobs were open in the facility at the time that was one that was open and that was one that they determined she was qualified to do and that's why that three choice meeting happened you know actually that the three choice meeting happened before i thought they put a choice they said look this is what we got available for here's what they were going to leave it that here's what happened that before they had talked about to her or had any discussions with her at all they  that for a couple of months that she was permanently disabled they had this thirty three choices meeting which said you can resign or be fired or you can work as a main control clerk which is different than it is take it with the lowest level position in the jail and then after that ms board said i don't think i can work that may include troll clerk job it does not that with my disability they kept telling her that the only job we had even though we know in there is evidence in the record that they had other jobs available she continued to say i want to work i want to work i want to work finally she said all right i'll accept the main control clerk job this is after months of them same with this is the only job we have when she arrived on september th for her st day back to work they said well we have these two other jobs that maybe you can work book out and visitation for and then you can go and shadow those jobs and see if you think those jobs would be of a would work for you she shouted those two jobs in selected from those to the visitation clerk because that was the only one that could accommodate her disability at that point ok so with that version of events did that is the errant summary judgment is it a trial is it both i believe it's definitely a trial but it's summary judgment the court like to save some time from about yes i more antonio behold here we have the marion county sheriff's office the district court properly limited the trial in this case to the hostile work environment climb involving carroll lad and evil watts in part because the plaintiff as george hamilton pointed out moved to exclude the evidence of washing and ric's before the trial started in addition the jury verdict on that claim should be affirmed because there was attempt to accommodate should have come in because it was evidence of her arrest quite frankly that claim just baffles me that the parties in gauging the interactive process to try to find her a position that would  evidence for it's relevant to the harassment claims that's as best as i can understand it but then we simply are confronted with a discretionary decision by the district judge to exclude that evidence because it would create a mini trial within the child about what actually happened on something that has marginal relevance and i think it is to the notion that somehow the job was a sham or this process was a sham it ignores the fact that she was accommodated the record reflects in their statements from ford in the record that she liked the driving visitation she could do the driving visitation and that she performed the drop admirably during the sixteen or eighteen months she was in so i don't know how that could possibly be considered to be a sham isuzu where the point there's language in some of our opinions to the effect that the employer needs to consider the whole of available positions and it's not clear to me that that happened what we're hearing from the plane if it is maybe if you take a snapshot then we phrasing but if you think of snapshot this week here are the two vacant positions but if you look over a period of several months there's turnover in available giving patients very limited for example you mentioned dispatch i know that miss ford during her entire time never applied for just the reason for that is performing as a dispatcher would not if it were a limitation position of dispatcher involves a lot of data entry skills and it is my understanding based on the record in this case and based upon her deposition that is something she simply physically could not  the and that was also it was the hand injuries because in fact even in visitation she required and the sheriff's department accommodated this she needed a hands free phone because it was difficult for her to hold the receiver because of that dispatch just wasn't wasn't something that was available and the other positions we just were limited in what there was her hand injury was very very severe and it greatly limited her ability to function can we talk about the hostile work environment claim of it i think one thing that i think she may she may be right about is viewing viewing the relevant period as the period during which she worked in the  visitation unit visitation department whenever wherever we call it and the experience with hendrix was clearly miserable the record the record is abundantly plain on that point but what i have what i have trouble with is looking at the particular pieces of evidence that were brought forward regarding her experience with hendrix in linking it to the to the  disability and i don't know if you want to comment your your adversary was emphasizing the june was it the june two thousand and sixteen memo or writing if you want to comment on that i will point and footnote seventeen of its court pointed out problems with the lack of proof by the plaintiff on disability i think it's also important to note that throughout the district court's opinion plaintiffs were were were criticized extensively for misquoting and mis citing the record and asserting that there was evidence of disability discrimination when there was not and again footnote seventeen several of the other footnotes of the opinion point that out very clear as to the june nd two thousand and sixteen memo when that occurred ms hendricks was moved it was that there was a problem and she was moved because of that the district court looked at the evidence on the whole involving this hendricks and determined that there manage the trial given that view how do you think if we were to agree with that how how should we address the bright case unit in our opinion in this case i think the way to harmonize fix those cases is to acknowledge that even if there is a claim of hostile work environment that goes forward the district court still has an obligation to look at the  to see whether the cabinets is tied to or relevant to the claim what the district court did in excluding that evidence was simply to say there is not evidence of a connection between separation of the question of harassment from the question of disability harassment the only thing that's relevant for the jury to decide in a hostile work environment claimants weather there whether there was harassment on the basis of the disability and i didn't go and look at the special verdict questions that were put to the jury but as you've described it as your opponent has described it the jury was asked to decide sort of a free floating question about whether there was but why was why was that de linked from disability harassment because general harassment is utterly irrelevant what we're talking about is disability harassment and i juries and jurors have no way to evaluate and no reason to evaluate whether there was harassment generally speaking and yet there's no definition of that what's important is whether there was disability harassment so i'm not sure why that the judge or perhaps you just accepted the verdict form submitted by the parties but why the parties would separate out those two questions that's not an appropriate w form i think the parties separated out those three elements because that's how they understood the jury would have to decide the client and i will say there was no objection it was from what  is not an issue on appeal it's just it's it's a point that i'm raising about how to structure special her to questions in a hostile work environment discrimination claims free floating they were they were moved in response to these issues and there became quite the side argument about whether that was disappointing what what i what i think is safe to say is that they were moved in response to these issues whether it was a disciplinary transfer or not a matter of great debate tonight and i don't think the record supports that it was a disciplinary  d for complaining she was also told we're not moving anybody else which would suggest that they knew this was about disability and because they just transferred carroll lats carolan even watts out of the department and six months later they're telling his board in discipline they were going to hit your head in the pocketbook if you complain again and we're not transferring anybody else out of here so i believe that that further supports that it was based on disability and the reason why that discrimination should come in and in addition i believe that the evidence about the the training that the supervisors were supposed to receive i believe that that was specific evidence that should been allowed at trial and shown that big sheriff's department did not accommodate mr board as they promised to do by providing that training and those you know that that information to her supervisors so that they would receive the training they need on how to handle these eighty issues and these complaints that she was making about this ability and if they had provided that training and we could have gotten that evidence before the court i believe that it would have made a difference in the outcome of the trial and also we believe that a new trial should be ordered based on the court not allowing in the evidence of all the harassment that ms cord was subjected