morning your honor may it please the court my name is michael franklin and i represent the appellant lori peterson in this matter i will be presenting argument and watching the time to in an effort to try and reserve a few minutes for rebuttal and we're here today because we're appealing the district court's grant of partial summary judgment on mr peterson's claims of retaliation under the americans with disabilities act and under washington's law gets discrimination are also appealing the district court's grant of summary judgment on mr peterson's claims for failure to accommodate under those same statutes lasley and because the district court allowed finding questions of fact as to whether or not the pre determination conduct amounted to adverse employment actions the court allowed mr peterson's claims for pre term and nation retaliation to proceed to trial so as a result of that we are asking this court in consideration of of our appeal issues to vacate the jury verdict and remand this matter for a new full trial on all of the retaliation claims not segregating them by preached terminations retaliation  actions and the actual terminations decision the affidavit that was provided by ms bruce when was that created i don't have a specific date on that your honor but it would have been close in time to the hearing on summary judgment was it was discovery still open at the time i'm not certain i i don't know the might she have been deposed by the other side or by everybody to see a little bit more detail about what she said in her affidavit or not yes i know that there was a civic discussion about deposing her prior to trial however that never happened so it could have taken place yes but it did not is what she said in that affidavit direct evidence or circumstantial evidence i believe it's direct evidence your honor when we when we see the context in which she's providing this testimony she's saying that that the h r director and mrs bruce's own boss after the complaints of discrimination and harassment were made and after the requests for failure accommodate refuse me requests for accommodation were made but they had discussions and during those discussions they were upset she's testified to that she also testified that she was going to be a problem and they needed to get rid of her but they needed to do so in a way that they could cover their tracks so that it would not appear to be retaliatory in nature those issues in my mind go directly to the issue of just discriminatory animus and i would say that's just a direct yes sure so i can go back to the timing issue  that raised and i realized i'm not convinced of her her affidavit is dated april thirteenth and then when was the trial was that before the trial that was before the for is take the stand that at the trial did she testify she did not take the stand at the trial your honor and there were not but that information her her declaration have been made before the trial correct and it was heard by the court on summary judgment it was presented at that time the opposing party will raise that as an issue that well she didn't testify at trial i think they're speculating that she won't dismissed in my mind all the issues related to that so we were focusing at the time of trial soley on the retaliation for her complaints of discrimination that she made a obviously if they district courts allow you can bring in any of that evidence into a if if if the summary judgment were were reversed by this court and it went to trial that evidence could be brought up e when we go back to a retrial if that's the decision by this panel we'll have to present the totality of the circumstances right there is evidence so you bring in all the evidence you want that's no problem absolutely but what i'm saying is that what the jury should be allowed to do is look at that and make a decision as to whether or not the conduct that occurred pre term anation was retaliation as well when looking at it as if we what we shouldn't do and what i trying to avoid is a situation where we're back on retrial and i can't argue to the jury that all of these issues that happened pre term anation are evidence of retaliation termination we're not looking at the prior activity well we again we would be looking at the totality of the circumstances the issues are so interwoven together that i don't believe that there's any meaningful way to parse them as as your honor indicated well you could obviously bring up those other issues and that's that's true but you have the evidence for you had ms priss affidavit before the trial so i guess i'm so that evidence was known so i guess i'm not understanding why you should get a second crack at whether pre pre term anation activities were retaliator to her and i guess i don't understand what difference it makes it is a distinction without a difference that i'm but i've explained that what i'm trying to do what i want to be able to do is go back to the jury re argue this case in its totality present all of the circumstances as to what happened i understand you want to do that now you get a better result i  discretionary with this court this court has wide discretion to order a full trial or a partial trial however it deems fit the trial that took place had nothing to do with determination correct correct in fact we were specifically  prevented or barred from using the word terminations which the jury was not told of the termination yes and no in closing argument they there was reference to her being fired and terminated which again shows how difficult it was to try this case on of retaliatory trial without talking about the actual terminations so again to my point i felt like we had an arm tied behind our back and had to come up with and you know a slightly different theory moments not moments but weeks before the trial took place and i don't want to have to be prejudiced in that way is is there any other direct evidence in the case besides the bruce affidavit direct evidence no no i'm stan chill yes circumstantial yes so and with that you know as this court is aware the failure to accommodate and the claims for retaliation under the eighty in question logon screen nation can be proven to direct evidence which we believe we have through the bruce declaration and that ends the analysis if that is accepted as direct evidence which i believe it is the for the terminations having been called into question she was terminated for allegedly being unprofessional during a telephone call a telephone fired both of them during half the call apparently that language was used in this was the culmination of a lot of interpersonal fighting yes that's the allegation now as kelly acknowledged his call with a very short it lasted thirty five seconds so is there for which my client was not a participant on so they have the joint call on the fifteenth of january then following that call you have a call between miss bruce and her boss who made the determination decision where he testifies that she was very unprofessional used foul language was rude and was insubordinate and further stated as a result of that call again that my client was not party to he made the decision to terminate  i think a jury could view that as as not being credible so does that raise it to anyone issue of material fact that the real reason was because of her reports of this disease or her out requests for decision was because of the specific complaint or disease at that stage of the analysis of the mcdonnell douglas burden shifting framework all we need to do is provide some that's that's going to be the issue for the trier of fact that's not an issue that should have been made on summary judgment not well if if there's much anyone issue material fact of discrimination retaliation and summary judgment would be appropriate and again we're we're putting aside the bruce declaration which was considered by the court on summary judgment but if we do put that aside and we're looking solely at the circumstantial evidence of pretext i believe that that pretext evidence does exist and you look at the timing right that's another thing that the court needs to consider when looking as to whether or not you go to trial you have somebody make complaints and all of this happened in a very condensed time period we're talking about a time period from november to january that's all the time that my client had prior to that time she had worked there for more than a year and had been given multiple awards and performed admirably that's another factor that the court would your honor but if there's more questions i just have one quick question maybe not quick but quick tell try to make it quick a judgment those of found that the reasons were not pretextual that was his ground for grant summary judgment and he said that the record rebutted bruce's testimony this is testimony in the affidavit on its face anyway seems to be direct and fairly strong what was he looking at he was  referring to an e mail that she sent again not including my client but an e mail that was sent on january sixteenth where she complains about kelly services dragging their feet and not letting her terminate them because they needed more evidence that specifically i believe the issue that the court was so very far on her affidavit david to be inconsistent with that he weighed the e mail  where they couldn't co exist in the same office the testimony from both the h r representative and the regional vice president mr rodriguez was that they basically doing their jobs and spent all their day trying to figure out how to get the other person trouble for not doing what they're supposed to be doing and they have this lead up to the phone conversation on the fifteenth of january and at the conclusion of that counsel's correct there was another call between miss bruce and mr rodriguez and it was after that call on the fifteenth that he decided there's just no way to say there's nowhere to go on this ike there's going to both of the both people were terminated there's just no salvaging this relationship that has absolutely nothing to do with the planet plan of claim of you know celiac disease or any events that took place by  fit we have sham affidavit doctrine which doesn't seem to fit a scase we've got self serving affidavits that we've sometimes apply but here we have an  affidavit that we're supposed to take in the light most favorable to the nonmoving party which says that the company conspired to fire mr peterson because of not wanting to make an accommodation so we have to take summary judgment purposes in her affidavit she does discuss the fact that she still believes she was discriminated against by kelley so sure there is a basis for bias there so i think that the principles that underlie the sham affidavit although not directly fitting into the circumstance of this case the principles do apply and that my argument is that it should be applied and the affidavit completely disregarded now the other part of that is the counsel of knowledge on his oral argument that the district court didn't take that rain the judge didn't disregard the the affidavit he simply said it you know he didn't treat it as direct evidence he said because of the contradictions because it doesn't exist in a vacuum without consideration to the other record evidence that it cannot that does not constitute direct evidence and treated as circumstantial that's that sounds like an argument that there is at least material fact disputes the jury should resolve well i don't think so if it's actually read in the context of the facts of the case i don't think you can separate this from the facts of the case to call it direct evidence and the record didn't again say this is i'm not go consider it he considered it just wasn't it was there was circumstantial evidence it was considered with the remainder of the evidence that the plaintiff presented and in clued in consideration of this affidavit if it's true what she said in the affidavit why isn't that direct evidence of discrimination i'm sorry if what the affidavit says is true why isn't that direct evidence rather than circumstantial evidence of discrimination relevant the question is whether there's a genuine issue of material fact regardless of whether the evidence that supports direct or circumstantial evidence and here we have evidence that the company fired her fired  because they didn't want to give her an accommodation so taking the ad in the light was favorable to his peers and there's certainly a genuine issue material fact as to whether she was  against discrimination so so why would we not reach that conclusion what rule would we have to adopt in order to avoid that conclusion it would simply be that the palace or something like that said that circumstantial evidence in some cases could be as persuasive or more than direct and i'm not arguing that point your hon what my what i'm saying is if the plaintiffs position is that with direct evidence mcdonnell douglas is no longer in the picture there is no consideration of whether or not the british if he doesn't exist there's no pretext analysis so you don't have to go through any of that my position i point is simply because of the record evidence in this case that the affidavit does not stand as direct evidence it is circumstantial evidence which is considered as part of the burden shifting process and is included in the pretext analysis that this court must still go through in deciding whether or not there's a genuine issue a material fact so in that pretext analysis is considered but it is not dispositive of that issue only her but mrs bruce as well so to say that this was motivated by or because of their her disability to me it falls flat because if that was the case then why did he the plaintiff makes a passing claim that well she also was disabled but again when you look at the record on that she says she went to a doctor on january sixteenth and then made it made a complaint that this was stressful on her or whatever it might exactly have been but mr rodriguez testified he made the decision to terminate them both on the fifteenth so obviously the terminations on the fifteenth can tell you something he found out on the sixteenth and if if you think the affidavit is false or contradicts other record evidence when it appeared why didn't you depose ms bruce or move to strike the affidavit part of the reason was that she was in colorado at the time i was not trial counsel on that i don't know the discussions that i know that there were discussions i don't know how those discussions came out  and it may have simply been a point of trial strategy that if she were to show up at trial and have present testimony that is either that was consistent with this  credibility would been torn to shreds by cross examination of the record evidence that exists in this case that proves these statements are false so from and again this is somewhat speculative on my part but simply because somebody presents an affidavit has things that are demonstrably false doesn't mean you necessarily run out and depose that person if you want to destroy their credibility in a trial i mean that that would probably it could be that you know i  best guesses as to why that might occurred but getting back to the pretext they have to say they know they have to establish that a discriminatory reason more likely motivated the employer in this case there's no question that the behavior of the two individuals motivated the decision and again i go back to the fact that one is not disabled one is disabled when how does that how does that support a claim that a discriminate there was a discriminatory reason for the decision it doesn't the other option is to show that the explanation is unworthy of credence but that the testimony is consistent throughout even mr bruce in an affidavit says it's not a secret they don't like each other their battles are documented are talked about in the deposition testimony there's no question that this was a brewing kettle and then boiled over on january fifteenth and those phone conversations and that's when mr peterson brought up medical issues surrounding her alleged celiac disease which i point out occurred in january she then goes on to say that she was instructed to start documenting things apparently after this conversation took place but we know from the testimony that the conversation about you know if you think she's doing things on professionally you need to document what's going on you need to document the her her job performance that occurred in december so she could have had a conversation in december about doing something that wasn't discussed or wasn't even talked about with kelly until january so that it doesn't again that's part of why the the affidavit doesn't stand as direct evidence in this case there's some evidence that suggests that bruce and peterson discussed an accommodation request on january eighth some evidence that they went to misrule his office and they had a discussion how an accommodation plan or something like that if how is the affidavit contradicted by the record if indeed they were discussing an accommodation plan and january eighth because the conversations about documenting things occurred in december th time doesn't change still even best case scenario for plaintiff that they want to now say that a reference is the plaintiff in response to that says i don't need in that i don't need a formal accommodation so to say that she was she was asking for formal accommodation when her was i don't need an accommodation i think doesn't fly but even to giving her that it was still the basis for her saying that this is why they told me to start documenting things that occurred in december it didn't occur after she brought up the idea of accommodation even best case scenario but you don't have to make a formal request for an accommodation do you if you if you discuss the matter and it's clear to the company that accommodation is requested doesn't have to be formalized it doesn't have to be a there's no magical words i'm a question an accommodation anything like that you know but if the person is saying i don't want you i don't need you to do anything for me then i don't then there's really nothing that's being requested now she did you know kelly did subsequent to that say well you've asked you've you've said made some comments about your schedule and wanting to change your schedule back to what it was so you know here is because that impacts you know when the business is operating that kind of thing here's a medical certification form you know give it to your doctor they started that process it just have to be the following day everything blew up not because she asked for an accommodation and nothing because the two couldn't get along and the person in charge made the decision that there was just no saving this relationship or and for the best you know for the betterment of the office they had to move in a new direction i would echo  determination aspect of it and you had the alleged actions by mr bruce and they had their chance for trial on those claims they lost they don't get that should get a second bite at it  so those are those to me are no longer part of this case and if there's any other questions i see my time's about to expire thank you your honor i had briefly wanted to touch upon the issue of the sham affidavit i think the court has observed that the the rule doesn't apply  here there was no motion to strike that was filed and there was no factual findings made by the court that would invoke that rule there's no reason for extending that in this case and one of the things that  posing counsel refers to is that this bruce affidavit is demonstratively false it but he doesn't explain how in fact i have argued that it's consistent with what was the plan all let's not terminate her right now let's drag this up just getting on track this out let's let's get evidence so that we can cover our tracks so it doesn't look like we're terminating her for these improper reasons that he didn't mention the timing  of this happened in january i believe opposing counsel is conflating a couple of issues one if the failure to accommodate and the specific requests that i guess it first came up on the sixth of is that the complaints actually began in december in fact my client has testified to that that she had made verbal complaints and there is in fact an e mail dated december sixteenth where she complains of harassment and she complains that the treatment she is experiencing by bruce is making her physically physically sick and she references her celiac she also testified that after that she followed up and made additional complaints now  january which was after mrs bruce herself complained about her issues and dealing with anxiety in the eating additional time off your honor thank you thank you but i have nothing for the moment to think gansler on both sides