understood thank you good afternoon nap procedure ana thank you very much good afternoon my name is mark aarons i represent jack engle i hope you and all your families are safe and healthy this time and thank you for allowing us to appear views you and i really appreciate it so there are three main reasons why the trial court's granting a summary judgment should be reversed the st reason is the lower court so the evidence in the life most favorable to charter on all the issues whether there was evidence of his terminations was due to his disability or his protected activity if he leaves if you was a qualified person with a disability in other words if he could have been accommodated what his restrictions were pick the most important to what would those be well the st thing i would point out your honor is that armand of longus who has the decision maker on the terminations back us jack supervisor and sign his name was on number one number two just like this a print done just like the court of appeals the california case of wallace talks about if the reason for the terminations was directly related to their disability that's direct evidence of discrimination here the may th letter that was sent to mr engle sad to hand the company is unable to hold your position because if you're not able to return to work and do the essential functions your job you're out all leave and you've got restrictions and if you and we're going to fire you on twenty one days that's direct evidence of discrimination and number three that's the reason the rd thing i point to is that the termination reason why is the letter attached to a corrective action report and it listed out not meeting your attendance and the only note is that he failed to return to work or his leave well he was on his leave due to his injur what was being told to jack was you have to be one hundred percent he'll in order to return to work and so those are all direct evidence of discrimination which is important when there's direct evidence is from nation from all that evidence of jury could reasonably conclude that it's more likely true the not true that his leave and his injury was why he was fired and that's why summary judgment is improper even if this court concludes and i won't concede but even not direct evidence at the very least it's substantial circumstantial evidence to indicate in fact that there was a discriminatory animus and that his injury and his leave was the substantial motivating reason for his determination and then the standard here i don't have to prove that that's factually correct it's just whether or not a jury could find that way and from here not only is there that direct evidence but there's other circumstantial evidence such that he was terminated i mean if you have somebody who's injured and they're injured at such a way that they can't actually turn to work you can't accommodate them but you know i'm not saying that that's your client but if you did i mean you could terminate them eventually right like you put them on leave you you're not you're not arguing that you could never terminate them if they if they're not capable of coming back to work correct but you have to that is correct your honor but justice and i think what you point out is the important part is that you have to have interactive process and you have to discuss and determine if there are reasonable accommodations and that was never done that i guess reason ask a question that's kind of i don't know if we just say well he was i mean i think clear that he was injured and that he w terminate i don't know that that is part of what would argue that he was terminated because of his injury in a sense right which sounds terrible but it's also sort of true it's always injured bad enough and they can't be accommodated then they can't be accommodated they can that's actually the issue and some of the issues around the actual terminations f e n there as well so actually i think responded would say that we didn't fire him because he was on leave or because of all these other he could do is job after he got to know the name of the doctor from the doctor saying that he could do most most of things but that's after he was actually if i remember right the timeline that's actually after he was very many and so in your argument has to be that they had to hire him back to talk a bit jobs well so that both both is the answer question because it vs are as different types of jobs that they can do to the direct sales representative so could he have done the residential homes door to door no but there are other g s r jobs in big apartment buildings where one person is assigned to a huge apartment building if you just walk in and always into your hallways and inside a condo manager's he could do that and his restriction was like this restriction was not a he have done different types of vs our job duties yes that he had done other inside job yes but instead of acknowledging that his restrictions were just limited things work inside the defendant did and what the court adopted he had a light restriction or a noise restriction but maybe that's not true and the those things could have been accommodated by wearing a baseball hat sunglasses changing the lights putting on noise cancelling headphones there was a ways he could have been accommodated but what we saw is every time that there was a thought about accommodating him in the summer of two thousand and seventeen when they even suggested a dispatch position that went nowhere nobody even responded about it just service down in san diego to train on the computer so he knew how to do that and so we have been accommodated in a sort of back question is yes and not only the answer that question yes but really the answer the question here is without have and the evidence there was an eighty eight form which list it out like how often do you have to list things frequently never rarely sometimes it's time for a when you knock out the restrictions that responding creates out of comments were out of yes i did in it but also on the issue of whether there was an adequate interactive process is that issue and like you may question for  question that can be dealt with on summary just i i think that is also a question of fact especially here when there is zero evidence of charter ever interacting with mr  call the emails in january th they had his instructions wrong at that point in time and so had they done an interactive process and reached out to him they would have learned that and every time that mr engle reached out to charter he pointed out to them on ways that he could do things and the response he got back from mr beverly was well if you have any restrictions you know and not until those are cleared we can't accommodate you a rundown on my time and i wanted to reserve a couple of minutes f as a matter of law it's charmin based on these undisputed facts that charter didn't cause the breakdown answers no i think when you look at who caused the breakdown well there are half i'm not sure how you could have an interactive process that doesn't include restrictions and possible only because other than jack reaching out to them when their own internal e mails show that they never followed through they just continually let months go by and on rebuttal will be not more than three men peter's have for your planning purposes since i've let mr aarons go over by three minutes plus whether or not there is evidence of intent to discriminate in this case and the problem with what he's and let's let's start because i think this is the best example with this statement in the buller declaration  of that employees that were an injured list were being terminated from employment and the jazz musician would be ill of now let's in order to understand why that's not direct evidence laying aside from it's it's oth deficiencies is direct evidence is evidence which has to prove the bath of discriminatory enemas without inference or presumption and and i think what judge that perhaps you were suggesting by your questions is even if you you view that statement as a suggestion that they are going to discharge injured people because they are injured and that's not what it says even if you view it that way the problem is that you can see that under california law will of doing that job with or without restriction or with with or without accommodation that person is not a qualified individual and unfortunately may be discharged under s circumstances but there's other problems with the statement as well which is we don't know that anyone else was injured we don't know anything about this list or how one even got on the list or how many people would have  us and in addition it's important to think to remember as well that mr buller makes this state and term ended his employment with my client more than a month before there was a discharge of by the just charge you know if you can find direct evidence whereby someone says i am firing x because she is a woman of the death statement establishes all you need for purposes of a violation this case and like to go into this question so there is the issue in this case of what when or not mr engle was able and capable of performing without accommodation let's start by talking about accommodation because my my friend mr aaron's to suggested that there was no accommodation and there was a failure to engage in the interactive process st there was the alternate accommodation from the very outset which is leave of absence that's a classic form of accommodation for people who have a disability now in it and and that went on for eighty seven weeks substantially in excess of the maximum out of california choirs in the way  summary during part of the period as well but he had a worker's compensation claim which he was dealing with as well as through the carrier so he received compensation we've he settled his worker's compensation claim after he was discharged in tw if you would like an accommodation it and if we don't hear from you by june nd and you would like an accommodation of please send us the attached forms and there's no question that he never sent back those forms there is another letter of the same date touch and ask for further accommodation of some kind and he didn't do it so so so the idea there was no definite accommodating i mean that certainly shows otherwise and it's reasonable for an employer who who has an employee even under mr aaron's definition of what is required or interactive process to mean to us it's just a failure to participate in it but but there was more if you could if you look at the timeline in this case mr  doctor now mr aaron says that mr engel you know had a different perception of his capacity and his ability to do various things but the employer is entitled to rely on the of by yes that's provided by the doctor particularly when it's  then there's a series of efforts that were made accommodation they start in june th of two thousand and sixteen and now remember he's still how he used being accommodated now the question is whether he can be given some opportunity to come back to work there mr knox raises with various people questions about whether or not there was a position he they he could find in the company one of the problems in return to those inquiries and we're talking now in testified that he talked with mr beverly seven to ten times mr beverly was the principal contacted my client who was trying to work out in accommodation now mr aram says that mr beverly told told deployed if wristing and the like one had to be able to lift up to eighty pounds and it was necessary to do squatting and and so on which were among the things he was not permitted to do you can call center was considered as a possible location  bath the problem is that you heard i ran to what dr nick said he's supposed to work in a v m wide environment and not only was that not a d m allied environment but he would have to be in front of a can computer screen on a regular now there was ample evidence in this case of efforts at reasonable accommodation and i'd like to then and there's no dispute that those those accommodations were offered now i'd like to go back there was there's evidence here that there was interaction there's there's really no disagreement about that in so far as a mr engel called mr bradley rather than the reverse that it's not relevant because the  be involved in the interactive process the enquirer is not required to create a position the employer is not required to consider promotion one point in the briefs it suggested that perhaps a promotion was possible the california courts and repeatedly rejected that notion of the case that comes most readily to mind mind is the rain this case which we've cited in the briefs and the employer also is not required to expand or grant the desired accommodation that the employee happens to prefer but here you have a record where there was an ongoing reasonable effort to try to accommodate in the circumstances of this case and in and there's number two you look at the particular job requirements of these positions that were other than the d s r is your issue and that was the job he had at the time of his injury and remember that's the position that dr wood said he declaration you will find attached as exhibits zero in p the job descriptions that were posted for the warehouse position and for the call center position you if you look at the  the letter sent them a twelve inviting and never getting a response but inviting that there be a doctor send information that would assist the company in trying to figure out if there could be an accommodation you'll see attached to that the job descriptions of the d s are position and as you go through them you'll see repeated instances where the evidence without contradiction because we're talking about what the doctor said be evidence shows that it would be reasonable for the employer to conclude that if he couldn't be shifted over to one of those positions and let's also what may be an even easier way to deal with this is a matter of law is california law establishes that it's the plaintiffs obligation to show that there was an available position that the playing of could if there and mr engel testified for example that he didn't know of any know failure of the interactive process as distinguished from the you know your to accommodate that requires under california law that there be a demonstration that the death some further interactive process  accommodation which would have taken here of the situation of the plaintiffs and there's no evidence of banned in this case as well so i think those things also contribute to making th some cases where i can cuddle seven discrimination suits for for example where our circuit press a sense of very difficult standard to say there's no issue of packing so that certain kinds of issues normally should be resolved that trial if there's any  like a parade of interactive process rushes over decades and always seems to me there's not much that's involved in assisting other and other be to the bar generally i'm not sure this is the case where the court needs to help guide us on how to deal with the difficult ones because i think when you have as here it complete failure to respond to two different letters inviting the interactive process after being on leave for what ended up being eighty seven weeks and after these this evidence i have described to you which is not disputed  that there were efforts made repeatedly at charter find a position i think i think when you when you have a failure to interact with the employer as here and then when you have a failure on the part of the plate of to show what this position was that existed that he could have filled i think those are fatal gaps to the plaintiff's case and so it's it's not it's not necessary here to write on the subject of you know when you have a back and forth perhaps doctors disputing conclusions rather than just the plaintiff for him something different that you that you you know have had as the court analyze to direct your attention on the interactive process some cases it's at pages fifty three and fifty four of our opening brief you cite to the lysine or matter and also to the humphreys matter that significantly a footnote eleven in the rain bush the city of irving case typically factual issues i wanted to address another couple of points defendant points out and says well we could have just relied on the work restrictions on the doctor's notes well that's not true the california supreme court  talked about how the employer cannot and this is a quote slavishly defer to the workers directions without engaging in their after process or words to that effect so in other words they can't just look at the nose and then ignore the plaintiffs they still have to didn't reach out to the so so that it's a work inside building with no sun exposure so you can work inside a building and not have sun exposure if you close windows and dr nick says it's not that he could never be in the sun should have also had to get clarification from that from the doctor i just read it i'm saying is if name are uncertain about what it was that got through the interactive process takes into mine and california law and there are cases that talk about that one then so what i'm saying is that here in this case it's a disputed material fact about whether or not he could use a call center job whether or not he could do the warehouse job and in fact i didn't get a chance to depose ms reed because of the th hour issues  day forty five we don't have that same type of breakdown for the customer service job of the warehouse job because so we don't know how frequently even if those jobs are essential functions and i think the other thing it talks about w setting you're fired because you're a woman or because you're disabled and their side but from my perspective maybe because of that it's a difficult this case will be submitted and the parties will hear from us in due course thank