made that determination it has been made by four other circuits the third for its sixth and eighth i believe you want us to make new law i would like the court to recognize that a hostile work environment can be articulated under the rehabilitation act and the a b a as the e e o c in its manual and guidance has recognized that such a cause of action would exist as have some sister circuits within the ninth circuit there have been district courts that have presumed in our view endo that a hostile work environment based on the rehabilitation act would be a cognizable claim and it has proceeded to then analysis analyzed the facts of those individual claims it never came to the conclusion supporting that cause of action in those trial court full argument that we need to have about these other issues but we come back to the statue limitations issue what's your best argument that the failure to accommodate and retaliation claims based on actions that occurred prior to i'm just talking my day here october twenty third two thousand and twelve are not time ard it's broken down according to the cause of action when we look at the hostile work environment claims the supreme court retaliation claim if you'd like me to confine it to the other theory i can do this for a moment i might happy to do so with respect to the retaliation claims that exist there is not an argument  the retaliation argument and the accommodation arguments sort of hold hands in so far that the plaintiffs had sought reasonable accommodations because of her medical conditions beginning in two thousand and three and the agency had continually engaged her in the interactive process and granted piecemeal accommodations drip by drip over a  prolonged period of time and when she would ring new or check in again on the status of how her requests for comment ition were being managed she would be told that they were still ongoing that the scant paperwork that the disability program managers actually generated would indeed say things like this is an ongoing request it dates back to two thousand and three and because the e e o c in its case law and in the compliance manual has construed that an accommodation does not trigger the statute of limitations in till it is denied there isn't any triggering event to prevent her from making the assertion that failure of a comedy and there are still extant and renewed if you will in october of two thousand wells are not having origin in two thousand and thirteen so my understanding you correctly that with respect to the fairly common that you kind of view this is a continuum and as long as there's anything going on at any point in effect relates back and it's still timely know the e e o c precedence and interpretation of statute have held that where there is an ongoing need for an accommodation there is an ongoing duty imposed upon an employer to make an accommodation in the context of judge mulligan she had needed an ergonomic desk since two thousand and thirteen that need did not change or cease to exist at any point moving forward in october of two thousand and twelve she has once again brought to the attention of her supervisor and by extension the e e o c the need for that desk to accommodate her now significantly worse disability by presenting medical evidence and saying what about that desk i still need that desk and i'm going to need some clerical assistance with typing and with filing because of the degeneration of her medical disability and there is no limitation well that if it keeps going it never going to see it so it just keeps going the limitations period does trigger when there is a  denial of an accommodation we're going to do nothing but they didn't entirely you know they refused to they don't do it then that's not a denial it becomes a question of fact for a jury to make a determination of if there is a time point where it could be argued as a constructive denial but the fact pattern presented here shows the agency continuing to engage in a dialogue and granting these accommodations on a piecemeal basis so it leaves the plaintiffs with a reasonable expectation that the claim is timely and with respect to the two levels of accommodation that had not yet been addressed in two thousand and twelve even if we were to say well everything prior to october is backstory and is not actionable in of itself the fact that she renewed those requests in two thousand and twelve and then filed within forty five days still renders those accommodation claims timely the district court made an error when it said that the ergonomic assessment report the second ergonomic assessment report that was conducted in december of two thousand and twelve was an accommodation when in fact that doesn't do anything to accommodate in a person it merely identifies the tools or equipment that would effect an accommodation that was part of why the accommodation claims should not have been granted summary judgment because a jury might find that the thirteen month delay in the provision of the ergonomic desk which was not provided intel november of two thousand and thirteen was an unreasonable delay and that the e e o c should also have liability for my colleague ask you and i ask you if you what what do we do with the statue limitations issue it still seems to me what you're saying is there really isn't one of these two areas i don't believe there is a statute of limitations problem in these two areas with respect to the articulation of the retaliation claim the acts of retaliation that formed the centerpiece of the case actually occurred in october of two thousand and twelve and so they are timely claim that brings of an unusual question but to me as a factor i don't remember ever being involved in a case like this where we have a judge actual judge of this very area who presumably has expertise in all these things is that does that should play any role in our evaluation of what we've got here yes your honor should judge m her analysis of her claim is falling back on and relying on the case law of the administrative decisions of the equal employment opportunity commission with respect to the timeliness of the claims when the statute of limitations is triggered for those claims retaliate per se as a cause of action and the motivating factor of attention standard for a retaliatory hostile work environment claim all of those are areas of law where the e e o c has some differences from the ninth circuit that it has identified as appropriate for federal sector claims and it has advanced with respect to the retaliation pursue a claim in particular there is a long body of case law that is over twenty six years in length with respect to that claim and we have not adopted that approach absolutely your honor you have not the most recent case where it was advanced to a court in the ninth circuit that i was able to locate was the go daddy case out of the district of arizona and in that instance retaliation for say as the theory was rejected by the district court summary judgment retaliation continued as a claim to trial and the plaintiff was successful in that case so there was no appeal made of the italian for cycling because there was no need c has attempted to bring in other districts across across the country without true success the most recent compliance manual that issued from the e e o c in august of two thousand and sixteen on the issue of retaliation has moved away from using the language of per se and simply calls it all retaliation but the the focus on the retaliation per se when we look at it in the administrative decisions of the yang found retaliation per se when the managers were discussing the plaintiffs e e o complaint amongst themselves and we provided in the  opening prefer a table of all of the relevant opinions of the e e o c which have found per se what the e e o c has focused on in in making per se retaliation a distinct claim has been the fact that there is an affirmative duty on the part of a manager and a supervisor to up hold and vigorously force civil rights title seven eighty a law and when the supervisor dar from that responsibility and does not hold that duty it is a person a violation and for which liability is appropriate if i may i'd like to see time that the question mulligans case supervisory judge siegel pulls aside another administrative judge leslie troop and says to her that the plaintiff is ungrateful she is a sexual epithet she calls herself a liar untrustworthy in reference to the fact that she sought a reasonable accommodation and then she says she's also all of these epithets because of ego complaint of sex discrimination that occurred in two thousand and two i thought some of these accommodations were because she refused to participate in some kind of a conference or something that's a little different  accommodations were because of that one of them at least one of the epithets as you call it was made in connection if i understood it correctly with judge mulligans refusal to participate in a conference at the supervisor was hoping she would produce a paper judged legal had wanted judge mulligan to speak at an ego see event however the judge mulligan had experienced a medical emergency that had resulted in a visit to the emergency room that was contemporaneous in time to that request and had declined to make an appearance because of a medical illness if  good morning good morning your honour's may please the court excuse me i'm assistant united states attorney david pincus and i represent the defendant appellee the chairperson of the equal employment opportunity examiner but she does handle administrative e u cases so she knew as well as anyone that at some point there's a constructive denial of requests for accommodation and she even admits that in her she said specifically her complaints were denied through inaction but in those nine years what happened memories faded witnesses disappeared all these four disappeared this ability program managers retired at least one of them died this is all found in the record in the briefing of the party's discovery motion which is i believe docket number thirty two the supreme court held in morgan the discrete acts must be exhausted on a timely basis and this roski held applied morgaine to the disability commendation claims with respect to this concept of recurring violation resetted the e e o c is darby case which held that in a recurring violation only the portion of recurring violation that was was not seeking summary judgment and yet the district judge so a spontaneous granted summary judgment we look in those cases to determine whether in this case judge molly going  in quotes full and fair opportunity to ventilate the issues involved in the motion and what we do with that is that something it was appropriate by the district judge or do we need to discuss them but she did in fact respond to these issues she said in her opposition to summary judgment she responded to the argument that there were that there was negligence that the conduct that she's complaining about in these two cases was there's no evidence that that was based on anything but negligence she actually responded to that and she also recent responded to my argument as to why the respects for these the requests for these unusual clerical requests were were not feasible go ahead and in fact during this time period in two thousand and thirteen she got clerical support she got the desk so i think this is you say that if you weren't asking the court to rule why did they say that i am sorry and i can answer that without getting into attorney client communications and work product ok because you know she is so since she got these combinations granted that means that she can't she's not seeking at injunctive relief what she's seeking is compensatory damages and the statute in question for contempt the i guess it's the amendments to the a da which also applied to the rehab act say that you have it when you're talking about you know fill you become have to if you want compensatory damages you have to show some kind of discriminatory retell of tory intent now ms morgan is claiming that her supervisor had this retaliatory intent but the point that here is that the supervisor had nothing to do with granting accommodations miss siegel was already gone by two thousand and thirteen she was even there the request for the clerical support was made to a new supervisor diane gross and there's never been any indication that she had any a retaliatory intent plus this done belton was the disability program manager she was the one responsible for getting a desk  single had nothing to do with that you know they deposed miss walton if they had some evidence that she had a retaliatory intent they certainly could have put it on but they didn't do that let me ask you because you're representing  know why is that because of this when you say the ego c has moved away and they didn't put it in their most recent guidance which is their official word the reason for that is the burlington case the and she was not given she was on suspension with no pay for a month but then later she got paid back and the court said well it depends on the context for some people getting another position would have been a big deal in this case it was in some cases it wouldn't matter if you got if you didn't get paid for a little bit and they paid you back later after the decision but in this case it did matter because this woman was living paycheck to paycheck and she  food for her children so concept context matters now here the context is interesting miss morgan attorney just talked about this prior case in two thousand and two and that's the reason why she didn't she slept on the rights for nine years because she was so dissatisfied and that decision was rendered at the time it's available in west law i cited the brief i cited to the district court decision again it's called mogul v doming guess this is the decision that miss mug and have had filing a complaint because she got a letter of warning from her supervisor and she said it was discriminatory the weather of warning was that she had another subordinate and you know any place other than the government that person would have been fired on the spot well ok i'm going back to the per se yes if i understand the concept per se it is that you don't have to prove intent if this is done i think we have to recognize it i guess right is that basically what it is i think what happens in the e is they say well you talked about your client c e o therefore it's over there's liability we're going to have this notice you know displayed on the floor everybody knows and they're going to order some training that's the kind of case where this arises and but this is not the sort of thing that we do in the district court so in other words you're saying not we don't want you to do this percent concept because that would be a blanket determination and these things got to be determined on an individual basis where the con or the context is taken into se retaliation i think what the court in burlington said was that retaliation itself is an actionable what is it has there has to be some harm and it has to be material harm i think what the plaintiff is trying to do in this case is to say that because she talked about my case to another person i don't have to show anything other than that and that is not just evidence of retaliation a retaliatory motive but actually that's the action of the adverse action itself and i don't think that that is consistent with this court's precedents in heart or quartet and where the supervisor about the employee making a claim for sexual harassment and she heard it i just think that is inconsistent with this court's precedents and if the o c does that well i think that we have to go with this court's precedents the law of the circuit and my opponent talked about the motivating factor issue i don't really think it needs to be decided today or in this at this stage of the litigation i don't think it would make a difference either way and i do want to point out that this court has applied the nassar standard to federal employees in a case called campbell o i also wanted to mention that the port of case talked about discrete acts and she doesn't really have any timely adverse action for retaliation in this case the porter case i believe you were on that panel i thought i don't need to tell you but the court talked about not blurring the distinction between discrete acts and non discrete acts and i think that that is what the pla is trying to do here is trying to mix it all up and throw everything in but i think that is not consistent with what the court said in morgan i think also morgan said an untimely act has to be sufficiently related  constitute one unlawful employment action we have a few million specifically said discrete acts and not actionable if time bar we have a few episodic cases where the supervisor got frustrated with ms mogen and started and did break her but we're talking about one time in two thousand and four where she supposedly said something about those are great slides if you're a pig defense lawyer i wasn't even clear she's talking about the plaintiff she might have been talking about the people who the defense attorneys who were attending this conference then i think three years later she said something about i'm so sick of you because she came to office you want to talk about something and ms mogen said just wait a minute i'm in the middle of something and she that's when she supposedly said that and then the unfortunate one of the employees to one of their coworkers i've no one would like it i understand that but i don't think it creates a hostile work environment and i think it was severe and pervasive certainly wasn't pervasive and this first severity i do want to point out that  after she learned that ms mogen had filed any complaint in january two thousand and thirteen she stepped down as a supervisor is not going to keep saying that she was going to do that anyway but actually the testimony was that let me just ask your guest i don't know the answer this question but many of the hostile work environment cases we deal are issues we're male supervisors say such things to females and sometimes the other way around here you have a female supervisor said about a female should that play any role whatsoever in our analysis of this case well i don't think this court has ever said that calling someone of the  troop who was the one who heard the comments she said that everyone in the unit has a potty mouth everyone uses that word including mismo again and it could be considered shoptalk in that in that environment barely that a lot of that's not the point and i don't think it can be imputed to any of these other people and in these level employees such as the gentleman who was doing the paperwork for appreciate it counsel you have a little time left not too much for you got so i will try not to talk too quickly your honor with respect to this proposition that you must show an intent to retaliate it is looking at whether there is knowledge of prior protected activity which miscible at mit's to contemporaneous to making her sexual epithet and other extreme insults of a judge and it has to be conduct that is intended to deter and iau activity or have a chilling effect that is what an adverse action is defined to be whether we call it per se or simply retaliation and in the context here we have judge siegel the supervisor of the hearings unit cuisine a junior judge about her coworker asking her if she's going to be a witness asking her if she knows whether mulligan intends to file a claim asking troop whether she herself intends to file her own type of claim in the future and stating i don't have to give an accommodation i don't have to participate in facilitating an accommodation for this woman who is an ungrateful exploitive undeserving because of her prior e e o activity she puts it all together in a nice neat little package she doesn't have this conversation once it's not a one off of ill stands in recess for the day