good morning and made please the court i am david schweikert here for the poet plaintiff jacqueline stoats it might be said that the job of an appellate court is to help people understand the legal rules and then to confirm whether or not they follow them whether it's g s eleven operations support specialist helping people with their trouble about years coworkers federal manager or a district court judge and under the rehabilitation act one of those rules is that the federal government should be a model employer when it comes to any grading the disabled into the workforce and not a model of how to thumb it  nose at the law here the district court unfortunately operated by humans and so capable of the occasional error has effectively blessed the rule flaunting of several funding frontline federal managers mr borden own ms mason and mr sampson the court ended up at that error by traveling down three pathways first of all the court concluded that a reasonable accommodation is necessary only when it goes to an essential function of the jaw at once because you you're about that error is not only that it contradicts this circuit holding the feis versus louisiana department of justice but the district court cited that same case multiple times in its decision so how the district court could cite the case and then skip another part of the case and instead rely on a seventh circuit case again we can only truck up to the fact that humans are writing these decisions and so occasionally we have these errors the department of homeland security does not seem to dispute that that er occurred they just urged it it's immaterial but if you look in the record the decision that page one zero eight three where the judge asserts this principle accommodation is only required when necessary for an very next sentence he says therefore the h s is tell the summary judgment so that that was a key basis for the district court judge concluding that mr should lose this case and so that in itself would be an adequate reason to at least remand then there were some smaller areas that were grouped together to achieve a similar form one is assuming it's an undue burden for d h yes when it brings in a local instructor for employees that the h s surely could not inform that instructor please give us the materials one day in advance for example because the only accommodation here that is it issue is her request that she get materials for meeting it one day in advance or in advance or she can look at it on her magnification software or get it at the meeting in a large in a larger font material that was handed out at the  meeting there is material that is handed out at some of those meetings and then other times it would be like you have the monder over here might be displayed on the monitor or in a in a large classroom on the screen everywhere with a meeting and they have access to the material or are getting their day o t well and sometimes i don't think the material was handed out at all it's just a powerpoint presentation so we were asking why the microscope wouldn't work right right for example if this if i was showing something on the screen over here to my right and someone in the courtroom here cannot see it if they're standing with a magnifying glass between us and the screen then the rest of us can't see it either so now if she gets it you know a day in advance she has night for cation software and she can put it on there and blow it up to eighteen or a tatts not something she can transform with a direct current now when she's out of town  she had a class in san tonio it and one in d c and she's she acknowledged in deposition when she's out of town she would go to the instructor and say can you e mail me this material that we had today things like that so she she's you know picking your battles and d h has understandably has less ability to control the instructor when it's someone in d c in there in dallas than they do when they're bringing someone in to to their office in dallas but the court turned that around to say w instructor that you know just e mail me the material so that must mean she could do that all the time when it's more a matter of she's trying to make the best of a bad situation when she's out of town or good you have one e mail you can enlarge it right right correct yes so if she gets a material e mail to her in advance she can use her might find software on her desk or he could use their i pad to grow it yes and i'm not sure if she uses an i pad but yes or right  certainly she could expand it if she receives electronically you're correct she could expand it on the screen that was a government argue that she can get all that harm that she could get she could get whatever she needed to her as i understand it they argue that sense for these out of town things she doesn't push them to give it to her in advance than she shouldn't complain about it when it's a local meeting either but there's certainly a different level of control if they manage some of these  e meetings that issue were done by managers at her office others were people were brought into the office certainly a different level of control when it's at the office in dallas versus so i guess at this point they were lying on the  wrong but they're just saying it was not material to his holding or what is material well what is material to his holding is that this is this is an extremely i mean if there were some contest for the simplest reasonable accommodation this would certainly seem to place on the top five just you know maybe materials in a larger font were in advance so that that's just the heart of the case and then you'll see in the record in that april two thousand and fourteen said i can't see these materials and ms mason responded well we know there was a some back and forth as there should have been and then mrs mason agreed we'll do this for future meetings and then in july two thousand and fifteen after sooted been filed they have another meeting this time with the disability coordinator and they put in writing we agree from now on we're going to give you these materials  you know either in advance or in a large font and it still doesn't happen or he never got them i just like you correct it's still still held maybe he got in the fore so that's part of a prior settlement agreement in the first lawsuit that he filed so the reference to the settlement agreement and you know i'm a little disturbed that settlement agreement would it end up in the record but as i understand it the government put that in to say we've done all these other things for her she she had this agreement about getting natural light in your work area so you know at some point this is just too much for us and while there certainly been managers that did great things like get her the  monitors in the magnification software you know for these meetings i'm sure that her superiors would say are essential meetings she can't use that software unless unless they give it to her in the bay it isn't is her complaint that she's only being accommodated intermittently i kind of gathered from the briefs that there were some instances where her requests apparently were not honored that she would remind them that we you know i do need to get this material even the day before or so was silent about her request or or didn't do enough to engage in the interactive process is is odd given that she goes through the iau process she finally file suit in april tw fifteen and management even after the lawsuit is filed which which i would say is the equivalent of standing on the building with a bullhorn saying you know you're not accommodating me even after the lawsuit is filed they're still saying oh well we had no idea that you know you need t occupation and she complaining about that she didn't get that would have been supporting them or negative so the some of these for example there is a  an appropriations law class where they're saying we're bring in somebody to teach you all so new things about appropriations law that you need for your job another one was we're bringing someone in to teach you all about customer decides she's really awful a travel vouchers something she's done for years and gotten an outstanding radio on before and so he says oh you made an error on this person about or this person about you this person is voucher and if you look at the page here in a second but if you look in the record at some of those examples where she responded to that it's in great detail it's not just all no you know i didn't do anything wrong it's a it's a real attempt to resolve the problem saying well what i remember that boucher is this happened this happened this happened this happened so i don't think i was at fault that please provide the documentation so i can do it and she never got the documentation something that he or she never got the support so she did what i would think we would want from an employee winstead just say you know hey you know i didn't do anything wrong but to say i'm you know it's possible i made some errors please give me these documents and please meet with me more often and let's figure out a way to presumably a manager that really wants to correct performance or improve operational efficiency is going to show the cards to the employee to say here's what you did wrong  of maybe four hundred pages of appendix on the government side at the district court you would think if those documents were helpful to them they would have shown up at some point much money what are you looking for so we would like a finding in a published decision that what these three managers did constitutes a failure to accommodate so disability discrimination the remained as to damages it would certainly have to be remanded for that and on the reprisal case we describe a higher level management as outstanding we have thirteen other staff members who write letters of praise or e mails praising her during this performance period when she fails and we have bore down his credibility being at issue because he's saying he doesn't even know she's blind went so i think you just what you suggesting is that we not only reverse the granting of the summary judgment favor the defendant but enter a summary judgment behave in favor of the plaintiff in this case yes so at the district court level we moved for summary judgment just on the issue of why ability as to reasonable accommodation we think that one is so clear a nd there are mcgovern republican go there are about seven reasons why one might not believe john bore down all we have over here is his unsworn assertions that she screwed up on the travel vouchers  and over here all these employees crazy or higher management crazy or a previous record of outstanding performance you know a jury certainly could believe either one but we believe that's enough to at least raise a fact issue about pre that the jury should be allowed to decide yes thank you may please the court i'd like to first address the failure to accommodate claim which boils down to four meetings two of which mr oakes is not clear whether there were or cannot recall whether there were any materials that were actually distributed at the meeting the other two meetings were conducted by contractors not by the agency itself and mr oakes testified that there were books that were distributed at those meetings and didn't deny that she could use the hand held magnifier that the agency provided to her to read those books if to be said mr oakes had a problem participating at the meetings understanding the content the agency would ask that she let them know and her supervisor had made clear that it was important that she take the lead and let them know what she needed for any particular meeting and certainly if there was a problem when she got to a meeting took to let them know if there's any adjustment that could be made and the agency had for example with respect to a meeting on april fifteenth two thousand and fourteen provided materials in advance to missteps as well as to all the other attendees of the meeting and this was directly in response to a direct instruction  says supervisor had given to her assistant after mr oakes had made a request to receive materials at that point and a large haunt her supervisor specifically instructed her systems to provide materials in advance soup to mr oakes and but really to everyone and then persistent went ahead and did that and with respect to these four meetings mr oakes although there was an instruction her supervisor page six hundred six of the record asked her to take the lead to let her know what she needed for any precise meeting this was in august of two thousand and fourteen so this instruction preceded each of the four meetings idea shoe but with respect to each of those meetings ms stokes didn't give any didn't follow up and so with respect to the september seventeenth two thousand and fourteen meeting that's found in the record eight hundred fifty seven to fifty eight th august twelfth two thousand and fifteen meeting that's a thousand and thirty one early august two thousand and fifteen meeting that's at eight hundred sixty seven seven hundred seventy eight and seventy nine and then with respect to the fourth of those meetings august eighteenth juxtaposition physically as far as the senate says it was not relevant to his finding that the judge makes clear that the reason he found there was no jury could find a failure to accommodate here was was based on two reasons and the first was oakes had other ways she admits that she has other ways in which she could understand eatings she could understand them by by listening by going to the instructor and secondly judge it's water found that she didn't appropriately engage in materials in larchmont and her supervisor responded i think that same day saying that that the supervisor hood to extent she could provide meetings in advance and interact well it is and certainly the government's position is not that mr x would be required you know to restate the same instruction for every so every single meeting however as part of that interaction  on in august two thousand and fourteen a page six hundred sexor supervisor says that she expected her to take the lead and do give a heads up with respect to those meetings  well that that should not stay silent that that even if they if the agency had inadvertently not given her materials in advance that she say something and that she you know even if the meeting had  n that it wasn't meeting her needs that it's a mistake say something and they certainly were trying to work with her you know they had they know that they didn't give the enlarged documents well as i mentioned with respect to these four meetings it's not clear for the check to two of them that there were any materials missteps cannot recall any and the other two she says that they were books that were distributed and so that would lend itself to missteps using her mag was not cited in either of the briefs i think it may have there was a reference because the government can seize the missteps is that is a qualified individual with a disability and the tasks for meeting that is that the individuals able to perform the essential functions of the job with or without accommodation so i think that that may have perhaps led to that it's led to that the citation in the decision about essential  the other justification was valid that she was able to understand the meetings through other means here the the timing is kind of backwards this is the the alleged actions took place or sort of the build up to these actions took place before there was any with respect to the supervisors at issue for those events now mr bordeaux and as was discussed he was the he was a new supervisor for her she'd had she had not previously received an unacceptable  declare her performance an acceptable we should be there while perhaps she's been with agency for almost twenty years right yeah so what were the things that you identified that made her performance more well he was very specific his the letters are very specific and detailed and he issued her three letters in advance of the unacceptable rating the first one dealt with instances of unprofessional conduct the second one dealt mason failed to submit paperwork in support of a promotion well that incident or ledge incident occurred in november of two thousand and fourteen and that's that's in a letter that the agency actually does not have a record of but assuming that that is an authentic letter that letter is from november two thousand and fourteen and that's at page ten forty four in the record ms mason was not named in any you know activity until july two thousand and fifteen and that's at page six hundred  seventy four go back to the you mentioned mr or don'ts first comment about unprofessional behavior of what nature is a professional appearance at work i mean she's been there like separate twenty years and now she's being written up for behavior that he declares to be unprofessional is that her attire her interaction with others in the workplace or her performance or her treatment of third parties that she would come into contact with that were not employees maybe why all of a sudden other than his perfection and his desire to whatever raise her performance what specifically is he complaining about that is unprofessional about her conduct in the workplace ok it's i don't make it so i don't make mistake let me look i'm looking at the record here at page four hundred twenty nine years actually part of the district court summary judgment briefing in the  form before a meeting that he had held such as the first and since the second instance was that he alleged mr oakes told mr borden again that she would quote let it slide this time unquote is that after the prior agreement it is the first incident was april two thousand and fifteen the second one was may two thousand and fifteen so that's after the government had agreed in connection with the prior action with the accommodation yes yes correct so the second instance was another occasion in which she she allegedly said quote let it slide this time when m told mr bordeaux that she wouldn't let it slide this time august it was this the second one at least as far as the occasions that are referenced in this letter that's unprofessional of the unprofessional and there's a final instance that's documented in that letter as well in this like a second  in may of two thousand and fifteen wh i think from my recollection of depositions and so forth i think i think her her intent was that she wouldn't file an e o complaint about it or take that kind technical mistakes that were made  help but she asked her documentation of those errors and the documentation wasn't produced by the documentation that the agency had was the detailed documentation that mr b made at the time of the events and ashton that documentation that would support the allegation that there were errors in the voucher in other words what documents were reviewed or relied upon to create the voucher she wanted the provide the support right and i did beyond the the detail summaries in the letter she was not provided additional documentation that i'm aware of however i think i think that she herself because of her access to the travel system would be would be able to would be able to rebut the allegation that there were errors in addition as i mentioned she could have employed witnesses  testify in her favor if that was the case that in fact there had not been any problems with her processing their travel request thank you this is just in that mr could somehow go into the system and get the backup documentation a speculation that's outside of the record this ingestion that she could call witnesses to say whether or not there were errors these travelers these staff members at homeland security and allison they don't understand the travel system konqueror they don't that's why they go to missteps because they don't know what's going wrong why they're vouchers are being rejected so they can't be called to the stand and testify about what went wrong with those things she's she's the expert on the system so she go take a look in the record six sixty nine six seventy three is one of her letters seven sixteen to seven twenty is another where she goes into detail with the knowledge she has to try to rebut those that doesn't have the actual documents this claim that the government somehow was unaware it's is puzzling we have the april twenty fourth team e mail response from ms mason she says quote for future meetings we will ensure you have ample time to review the electronic document with your magnification software and then in august twenty four misquotes did i think in this meeting get some and she said that's the sort of accommodation i have in mind for this and future meetings this is it back in two thousand and fourteen and then in september twenty fourth tain in the stokes to m he later says a way he didn't realize that she had these vision problems she said in that memo also she won the materials in a larger font or in advance of the meeting and here i think this captures a lot mr bore down now let it slide if i'm pulled over apparently speed allegedly speeding on canal street and the police officer says let it slide i don't file a complaint that he was unprofessional i'm great so i why she let it slide is what he claims she said so she's trying to politely remind him i have these reasonable accommodations and you haven't provided it but i'm going to let it slide like please do it next management isn't formed that an employee has a lawsuit pending about a reasonable accommodation and she says in this memo in july and to him she spoke with expresses regret that she's going to have to name him as a responsible management official talking about i thought when you came in we were going to have a fresh start but i see now you've gotten dragged into all this so he knows as at that time that he individually is likely to be named  so congress has made the decision that if an employee with rather stay in the workforce then sit at home and perhaps receive a check but not have the dignity that a job provides that employers should do that and particularly for the government where it's supposed to be a model employer so mr oakes has expressed interest in fully participating in the workforce so  the outcome of your decision is either going to be to bless or to condemn the actions of these three managers and attempting in not bothering to care what congress has a correct take place anything else