[00:00:03] Speaker 01:
Good morning, your honors.

[00:00:05] Speaker 01:
If it please the court, I'm Ken Absalom appearing for the plaintiff in this case, Brenda Penhall.

[00:00:11] Speaker 01:
I apologize in advance.

[00:00:12] Speaker 01:
I find myself a little hard of hearing, so please feel free to shout at me.

[00:00:16] Speaker 00:
The trick in this courtroom, because it's beautiful, but it's marble.

[00:00:19] Speaker 01:
Yeah, I've had that problem before.

[00:00:21] Speaker 00:
So the trick is not to worry about volume so much.

[00:00:24] Speaker 00:
Just speak right into the microphone, if you could.

[00:00:27] Speaker 00:
Just pull it closer to you to speak right into it, and then we will

[00:00:31] Speaker 00:
hear you best.

[00:00:32] Speaker 01:
All right.

[00:00:32] Speaker 01:
Thank you, Your Honor.

[00:00:35] Speaker 01:
Because this case comes to the court after the district court granted the defendant's motion for summary judgment.

[00:00:43] Speaker 03:
You can adjust the microphone and lower it.

[00:00:47] Speaker 03:
There you go.

[00:00:48] Speaker 03:
Now, you can read and talk at the same time.

[00:00:50] Speaker 01:
All right.

[00:00:52] Speaker 01:
Because the case comes before the court on the district court's granting of the defendant's motion for summary judgment,

[00:00:59] Speaker 01:
the overarching key issue that has to be resolved is whether there were sufficient facts brought up in the plaintiff's case that would warrant the matter going to a jury where the trier of fact would have to resolve any dispute concerning those.

[00:01:18] Speaker 01:
So in measuring whether or not there were sufficient facts, we obviously have to look at what the legal standards are that they have to be compared against.

[00:01:29] Speaker 01:
And what I plan on doing is going over a little bit to bring to the court's attention the facts that we believe would require a trial of fact to resolve as opposed to being disposed of at the district court level.

[00:01:45] Speaker 01:
In terms of the legal standards,

[00:01:47] Speaker 01:
I would ask the court to pay particular attention to what I consider to be the two key decisions on these matters.

[00:01:53] Speaker 01:
One is the Janowitz case, and the other is the Guelfo case.

[00:01:57] Speaker 01:
The Guelfo case deals with the question of whether or not a perceived disability can constitute a cause of action.

[00:02:10] Speaker 01:
The evidence that the plaintiff presented in the case

[00:02:15] Speaker 01:
really consists of looking, measuring them against the three elements of the case.

[00:02:20] Speaker 01:
And I'll talk first about the termination and retaliation for having engaged or tried to engage Mr. Howe in discussions concerning her injuries and what the accommodations were that she was seeking.

[00:02:37] Speaker 01:
We presented evidence that after she was returned to work in September of 2017,

[00:02:44] Speaker 01:
She immediately engaged Mr. Wolfe in discussions concerning her injuries and her continuing concern about the progression of her recovery, and that it would take some additional time before she would be ready to participate in the more physically rigorous program of training to make the position to a permanent fraud investigator.

[00:03:14] Speaker 01:
The evidence concerning the retaliation relating first to the first element, the first element being whether she engaged in protected conduct, was simply this.

[00:03:28] Speaker 01:
There's evidence

[00:03:30] Speaker 01:
presented in the opposition the summary judgment that established that she talked to Mr. Howe on a number of occasions trying to get his attention as to the conditions that she was experiencing and had experienced.

[00:03:45] Speaker 01:
and indicating that she was seeking a reasonable accommodation for those remaining concerns by going to the less rigorous training program.

[00:03:56] Speaker 01:
Then secondly, when she didn't get anywhere with Mr. Howe in those conversations,

[00:04:02] Speaker 01:
She got clarification from the treater that she indeed needed additional time to harden up.

[00:04:10] Speaker 02:
She received that additional time, correct?

[00:04:14] Speaker 02:
The doctor clearly said she's qualified to go to the police training academy as of January of 2018, correct?

[00:04:24] Speaker 01:
Yes, that is correct.

[00:04:26] Speaker 02:
And if an employer had gone against those instructions,

[00:04:31] Speaker 02:
then it might also be violating the ADA by treating her as disabled when she is not, correct?

[00:04:39] Speaker 01:
That's not correct, Your Honor, with respect.

[00:04:43] Speaker 01:
First of all, let me be clear.

[00:04:44] Speaker 01:
The case as it stands now deals with the state statute, the Fair Employment Housing Act.

[00:04:50] Speaker 01:
And there's some differences there that are significant.

[00:04:54] Speaker 01:
But the fact that

[00:04:58] Speaker 01:
Mr. Howe concluded that he always claims he did conclude that he would not permit her to continue in the more rigorous program.

[00:05:10] Speaker 01:
certainly in terms of the perception of whether or not she had an injury.

[00:05:14] Speaker 03:
That's a fact that... Mr. Howell wanted her to do the most rigorous program.

[00:05:18] Speaker 01:
And she attempted to do that, Your Honor, after it was clear that she wasn't getting anywhere on trying to get into the specialized program.

[00:05:27] Speaker 01:
So she showed up in January

[00:05:30] Speaker 01:
to participate and to get enrolled in the more rigorous program, the POST Academy program.

[00:05:38] Speaker 01:
And she was told that that's the program that Hal wanted her to go into, and she showed up ultimately to go into that program.

[00:05:46] Speaker 01:
And when she got there to enroll, she found out that

[00:05:52] Speaker 01:
he had withdrawn the... Right, two days after she filed her grievance, correct?

[00:05:57] Speaker 01:
Exactly, two days after the filing of the grievance.

[00:05:59] Speaker 02:
How on earth is that retaliatory?

[00:06:02] Speaker 01:
I'm sorry, Your Honor.

[00:06:03] Speaker 02:
How on earth is that retaliatory when she said she's just filed a grievance saying, don't make me go to this?

[00:06:12] Speaker 01:
Well, let me emphasize at the outset that in terms of the element for whether or not she engaged in protected conduct, I don't think that can be disputed at this point.

[00:06:22] Speaker 01:
She had a number of discussions.

[00:06:24] Speaker 01:
She tried to get the reasonable accommodation.

[00:06:27] Speaker 01:
Now, whether or not the position that was taken by Mr. Howe constituted a problem for her under the

[00:06:37] Speaker 01:
perception, the perceived disability claim.

[00:06:41] Speaker 01:
I think that's an issue for, I'm sorry, Your Honor.

[00:06:44] Speaker 02:
Let me just be very blunt, Mr. Absalom.

[00:06:47] Speaker 02:
My concern here is that the plaintiff's position over the relevant months seems to have varied widely and conflicted with her own doctor's instructions to her employer.

[00:07:01] Speaker 02:
The defendant's position seems to have been steady, namely, one,

[00:07:07] Speaker 02:
For this job, you have to do the more rigorous police training.

[00:07:12] Speaker 02:
Second, we're not going to make you do that until your doctor says you can.

[00:07:18] Speaker 02:
But then after your doctor said you can, you were refusing to or failing to comply with it.

[00:07:23] Speaker 02:
What am I missing here?

[00:07:25] Speaker 01:
She didn't refuse to participate in the POST Academy program.

[00:07:31] Speaker 02:
So this goes back to she files the grievance and then her boss says, no, you're not going to do this now.

[00:07:38] Speaker 01:
That's correct.

[00:07:40] Speaker 01:
That's correct.

[00:07:41] Speaker 01:
And the timing of that decision, which is right on the heels of the filing of the grievance, is strong evidence of the retaliatory nature of the decision.

[00:07:52] Speaker 02:
Why is it retaliatory as opposed to just simple accommodation of her grievance?

[00:07:57] Speaker 01:
because she presented to the chief the various reasons for getting into the question of whether she should be accommodated.

[00:08:06] Speaker 01:
And under the statute, under the FEHA statute, there's a specific provision in there that says if you're seeking reasonable accommodation, that alone can be the predicate for a retaliation finding if there is an adverse employment decision taken by the employer.

[00:08:25] Speaker 01:
So she did do that.

[00:08:27] Speaker 01:
She did qualify under that statute for meeting the requirement of having engaged in the protected activity.

[00:08:35] Speaker 01:
But in the grievance meeting itself, when they went to the grievance meeting, which was sometime in January, as I recall, she again was confronted by Mr. Howe saying, you cannot go into the program that you're seeking.

[00:08:54] Speaker 01:
And now, finding that you are concerned about future injuries,

[00:09:03] Speaker 01:
Ultimately, he used that as the basis for the decision to terminate her.

[00:09:09] Speaker 01:
She indicated that same meaning that she had tried to participate in the more rigorous program.

[00:09:17] Speaker 01:
She continued to be willing to do that, but she would prefer, obviously, because she was concerned about the potential of future injuries of the less vigorous program.

[00:09:28] Speaker 01:
decision in the Guelpho case, I believe it is, where there is mention about the potential future disabilities that a prior injury may have caused.

[00:09:39] Speaker 01:
And so in those circumstances, certainly a jury could be the proper trier of fact to decide whether or not the question about her future injuries and her request to go into the smaller program, or not the smaller one, the less vigorous program,

[00:09:57] Speaker 01:
was sufficient to indicate that there was both a retaliatory motive on the part of the chief and also that one of the factors was that she was perceived by the chief to have a disability if you take into account what in the state decisions makes it clear that a future injury can constitute a basis for the disability.

[00:10:24] Speaker 01:
It's also important to emphasize that the perceived disability concept is stated in two terms, both the perception of whether she had a disability by the individual that's making the decision that constitutes an adverse employment, but also whether she's treated as having a disability by that decision maker.

[00:10:50] Speaker 01:
And under the state statute, whether or not there is a causal link between the adverse employment decision and the fact of the disability or the potential for a disability is made.

[00:11:07] Speaker 01:
is to be measured against the standard of whether that's a substantial factor in the decision-making.

[00:11:15] Speaker 01:
As opposed to the ADA test, which the defendant seems to be relying upon, even in the context of the FIHA case, where they claim it's a but-for standard for

[00:11:29] Speaker 01:
determining whether or not that was a basis for concluding that he was in violation of his responsibilities under the statute.

[00:11:39] Speaker 01:
So the but-for test is inapplicable to the case as it presently stands.

[00:11:46] Speaker 01:
which is basically a FIHA case as opposed to the ADA case.

[00:11:50] Speaker 03:
Is your position that once the plaintiff claims that she's disabled, that means that she's disabled?

[00:12:01] Speaker 01:
At the time of the grievance processing, she clearly had suffered serious injuries, but she was cleared to go back there.

[00:12:12] Speaker 01:
And she indicated that she was concerned about the potential for future reoccurrence, if you will, of the injuries she sustained.

[00:12:21] Speaker 03:
And that makes her regarded as disabled, because she's thinking that she's all right now, but she might get worse if she goes through this training.

[00:12:30] Speaker 01:
Certainly that's an issue that should go before a jury as to whether or not she satisfies the standards, the elements of the perception, a perceived disability case.

[00:12:40] Speaker 03:
The perception has to be by somebody other than the plaintiff, correct?

[00:12:44] Speaker 01:
It has to be inferred from the circumstances, whether the decision maker... By someone other than the plaintiff.

[00:12:54] Speaker 01:
That's correct.

[00:12:55] Speaker 01:
And so that's why I emphasize that it's not only a subjective perception of the decision maker, but it's also whether an inference can be drawn by this totality of the circumstances here by the trier of fact that that really was not the reason for it or is a pretext for the discrimination.

[00:13:20] Speaker 01:
And so

[00:13:23] Speaker 01:
The fact that she brought to the attention of the decision maker in this case that she was concerned about the future injuries is sufficient to make out a claim under the perception

[00:13:38] Speaker 01:
of disability prom.

[00:13:41] Speaker 02:
Would you agree, counsel, that an employer can violate the FEHA by treating somebody as if she has disabilities, if she does not, by imposing, for example, physical restrictions on her work that are more severe than her doctor believes are appropriate?

[00:14:00] Speaker 01:
it is the case that that could constitute an action.

[00:14:07] Speaker 01:
Yes.

[00:14:09] Speaker 02:
So what I'm struggling with here is what an employer did wrong, in your view, by complying, as near as I can tell, with her doctor's instructions and then trying to cope with her shifting positions.

[00:14:27] Speaker 01:
In this case, what should have occurred is it should have triggered the discussions about what the concerns are and developed through the interactive process, which is a separate claim here.

[00:14:39] Speaker 01:
the information to make an informed decision about whether her indication that she was prepared to go forward with enrolling in the more rigorous statement, whether that was appropriate or not.

[00:14:53] Speaker 01:
And not to suggest that he shouldn't take into account that, but there should have been further discussions about the extent of her current situation, the medical likelihood or probability of incurring some additional

[00:15:08] Speaker 01:
injuries down the road and whether the risks that she herself was willing to take could be handled by the district, by the company, I should say.

[00:15:23] Speaker 01:
And so when you put all of that together, there's enough facts here to require a trial of fact to resolve that question.

[00:15:32] Speaker 01:
about whether she was in fact perceived as being disabled or treated as being disabled.

[00:16:03] Speaker 05:
Good morning, your honor.

[00:16:03] Speaker 05:
That's what's left of it.

[00:16:04] Speaker 05:
May it please the court.

[00:16:06] Speaker 05:
John Whitefleet for Appellee's County of Lake and Chief Howe.

[00:16:11] Speaker 05:
We would ask that this court affirm summary judgment motion.

[00:16:15] Speaker 05:
First, I'd like to start out by ensuring that it's clear what this case is not about.

[00:16:21] Speaker 05:
This case is no longer about hostile work environment against Chief Howe.

[00:16:25] Speaker 05:
This case is no longer about the claims under the Americans with Disability Act.

[00:16:30] Speaker 05:
And so the discussion about

[00:16:33] Speaker 05:
retaliation under the FEHA is a nullity because there are no claims for an FEHA retaliation.

[00:16:42] Speaker 05:
If you look specifically at the first amended complaint, the ADA claim, first cause of action or claim for relief is at Penhall 125.

[00:16:54] Speaker 05:
The second cause of action or claim for relief is the FEHA disability discrimination that starts at Penhall 128.

[00:17:02] Speaker 05:
The third claim is a FEHA cause of action claim for failure to provide reasonable accommodation and or engage in interactive process.

[00:17:15] Speaker 05:
And that's at Penhall 130.

[00:17:17] Speaker 05:
There are no causes of action for retaliation under FIHA.

[00:17:21] Speaker 05:
And so... You say it wasn't pled or the statute doesn't allow it?

[00:17:26] Speaker 05:
It wasn't pled.

[00:17:28] Speaker 05:
And so...

[00:17:30] Speaker 05:
That's why in the district court, the court analyzed the ADA claim as retaliation but did not analyze the FIHA retaliation because there was no such claim.

[00:17:41] Speaker 05:
And so the cases that my colleague relies upon, Janowitz, those are retaliation claims under FIHA.

[00:17:48] Speaker 05:
There's really no need for this court to get to that because there is no retaliation claim under FIHA.

[00:17:54] Speaker 05:
So that was one point I wanted to make.

[00:17:56] Speaker 05:
The second point for the

[00:17:59] Speaker 05:
wanted to make was significantly district court looked at in narrowing these claims on motions to dismiss that in the initial motion that was granted said well there is no disability claim and there was no claim for perceived as and so granted leave to amend and the only reason why the district court

[00:18:24] Speaker 05:
allowed the second, the First Amendment claim to proceed because of this allegation that there was this note from Dr. Weiss in late 2017 that plaintiffs alleged would have put Chief Howe on notice of her disability.

[00:18:40] Speaker 05:
But the evidence didn't bear that out.

[00:18:43] Speaker 05:
The evidence showed that while that was temporary, she came back in September

[00:18:49] Speaker 05:
The note, I think, was actually in November.

[00:18:51] Speaker 05:
By December of 2017, Dr. Weiss cleared her for full duties.

[00:18:57] Speaker 05:
Including the Peace Academy.

[00:18:59] Speaker 05:
Including the Peace Academy.

[00:19:00] Speaker 05:
And what's unique here is that the chief actually provided the doctor with the physical requirements.

[00:19:08] Speaker 05:
And the doctor said, oh, yes, those are OK.

[00:19:13] Speaker 05:
And the reason why that's significant is because the chief here

[00:19:18] Speaker 05:
had determined, consistent with 30 years of practice, that these welfare fraud investigators must be peace officers for their small community because they need powers to arrest, they need to be able to handle themselves because they're often out in the field alone.

[00:19:36] Speaker 05:
And so the specialized corps... Are they armed?

[00:19:38] Speaker 05:
They would be armed if they were peace officers, yes.

[00:19:42] Speaker 05:
So because of that unique aspect that this county had always allowed for, then that course was the required course.

[00:19:57] Speaker 00:
And so the when... Why did the job description indicate that there were two different ways to satisfy?

[00:20:02] Speaker 00:
It is unfortunate, Your Honor, and ultimately... Sounds like they've never required anything other than the tougher course, the POST course.

[00:20:09] Speaker 00:
So I was puzzled by the job description.

[00:20:11] Speaker 05:
as was I. Unfortunately, because it did say that, perhaps that gave Appellant some belief that she could insist on the other course.

[00:20:23] Speaker 05:
However, this is why that when she submitted the grievance, the chief said, well, okay, maybe I'm wrong.

[00:20:31] Speaker 05:
Let's let the grievance play out because if the board says,

[00:20:35] Speaker 05:
I'm wrong, and she's supposed to go to this other course consistent with the job description, then that's what I'll do.

[00:20:43] Speaker 05:
And as it happens, the board supported the chief and said, no, it's your discretion.

[00:20:48] Speaker 05:
And you have the ability to determine which course is required.

[00:20:55] Speaker 05:
And so I think the other thing I wanted to point out, too, was

[00:21:04] Speaker 05:
Pell is using the grievance as this idea that that's supposed to provide notice to the employer of a claimed disability.

[00:21:14] Speaker 05:
When plaintiff herself didn't even believe she was disabled.

[00:21:18] Speaker 05:
Instead, she had this discourse about, I believe I will be re-injured.

[00:21:22] Speaker 05:
But if you look at the grievance itself, which is at the supplemental excerpts of record at 153, this is essentially provided by the union.

[00:21:34] Speaker 05:
And there's talk about, in that grievance, about the penal code section and what's required under that and whether the specialized course would satisfy the requirements of the position.

[00:21:51] Speaker 05:
And this, ultimately, this belief that she needed reasonable accommodation, and to your Honor's point is just because there's a subjective belief that she'd be re-injured,

[00:22:03] Speaker 05:
there needed to be some medical indication that would allow the employer the reasonable belief that she could be disabled.

[00:22:13] Speaker 05:
And that's what's lacking here.

[00:22:14] Speaker 05:
And so I would submit to this court, even though the district court didn't get to it, wasn't quite convinced, we would submit that this grievance isn't enough to put the employer on notice of just because you say the magic words, I want reasonable accommodation.

[00:22:28] Speaker 05:
And that would be other grounds to uphold

[00:22:32] Speaker 05:
the dismissal.

[00:22:33] Speaker 00:
152 and 153 is a two-page, I mean obviously it's two pages, though I understood the grievance is at 153.

[00:22:41] Speaker 00:
152 is, that says level one grievance.

[00:22:45] Speaker 00:
152 is, what is that?

[00:22:47] Speaker 00:
Oh, so this- That's like a cover sheet or something?

[00:22:52] Speaker 05:
No, it was part of the review process for the Scali hearing, and so I included the

[00:23:02] Speaker 05:
the attached form that was part of the Skelly process.

[00:23:06] Speaker 00:
I'm not trying to be difficult.

[00:23:07] Speaker 00:
I'm just trying to marry up your citation to the argument you just made.

[00:23:11] Speaker 00:
And I think it's supported by 153.

[00:23:12] Speaker 00:
Is that where you want us to look?

[00:23:14] Speaker 05:
That's the grievance itself, yes.

[00:23:17] Speaker 05:
And so my point was, this is the document that is wearing multiple hats in terms of appellant's argument that this is notice and somehow indicative that the employer should have perceived her as disabled.

[00:23:32] Speaker 05:
when in fact Chief Howe never did perceive her as disabled.

[00:23:37] Speaker 05:
And so that was the point.

[00:23:40] Speaker 05:
The other point I wanted to make was my colleague said that, well, this grievance should have triggered some sort of inquiry about needing a fitness for duty.

[00:23:49] Speaker 05:
And the district court disagreed, and I agree, too, is that

[00:23:54] Speaker 05:
It's the opposite.

[00:23:55] Speaker 05:
If, in fact, the chief had ordered a fitness for duty, then perhaps he was thinking, oh, maybe she is disabled.

[00:24:01] Speaker 05:
But the fact that he didn't means that he didn't consider here anything other than ready to go, according to the doctor, to the post academy.

[00:24:11] Speaker 05:
And so the fact that the ultimate decision to terminate once the board determined that the chief was in the best position

[00:24:23] Speaker 05:
that the post course was the proper one, and that her continued insistence on going to this other specialized course, which did not have the same physical requirements, was tantamount to refusal to go to the post academy.

[00:24:40] Speaker 05:
And that's where I wanted to talk about the substantial factor, the causation issue that Plaintiff's Council talked about.

[00:24:50] Speaker 05:
In the opening brief, there's absolutely no discussion or argument about the substantial factor and how that might play out differently under the FEHA analysis versus the ADA analysis.

[00:25:05] Speaker 05:
It isn't until the reply brief where they spend some significant time about trying to talk about how this might be the analysis of a significant factor.

[00:25:16] Speaker 05:
should play into the court's analysis.

[00:25:18] Speaker 05:
The problem is they're relying on the same information, factually, to say how there could be a significant factor because of this idea that, and they want to argue that Chief Howe perceived plaintiff as disabled when he took all these actions, when I think there's only one reasonable interpretation, which is he did not.

[00:25:39] Speaker 02:
Could you address briefly the point that plaintiff's counsel makes about

[00:25:47] Speaker 02:
Chief Howe having, in essence, revoked her permission to go to the post academy.

[00:25:56] Speaker 00:
My understanding is that she showed up and she learned that she had been sort of disenrolled, unenrolled.

[00:26:00] Speaker 00:
Is that the point in time that we're talking about?

[00:26:03] Speaker 05:
Yeah.

[00:26:03] Speaker 05:
Yes.

[00:26:03] Speaker 05:
And I'm not sure the record is quite clear.

[00:26:10] Speaker 05:
You'd have to

[00:26:11] Speaker 05:
get both plaintiff's testimony and chief house testimony and sort of put them together.

[00:26:15] Speaker 05:
So what happened was there is a certificate of approval that is sent to the academy.

[00:26:23] Speaker 05:
And this was not the beginning of the academy.

[00:26:26] Speaker 05:
This was just a registration.

[00:26:27] Speaker 05:
And so when, even though she didn't need to show up for the registration, but she did and then learned that that certificate had been revoked.

[00:26:37] Speaker 05:
The academy wasn't actually supposed to start until April.

[00:26:40] Speaker 05:
for that particular one.

[00:26:42] Speaker 00:
So before you move on, did I misunderstand the record or is it the case that she showed up to register and found out she wasn't going to be allowed to register to attend?

[00:26:56] Speaker 05:
Correct.

[00:26:56] Speaker 05:
Because of the chief had said, well, because of the grievance, it's a waste of resources, time, money to put her back into the academy if, in fact, the board says she can attend this specialized course.

[00:27:11] Speaker 02:
Did that decision make it inevitable that she would be fired if she lost her grievance?

[00:27:17] Speaker 02:
That is, under Chief Howe's perspective, if she wasn't enrolled, if she didn't

[00:27:22] Speaker 02:
show up and go through the classes starting in April, then she would have failed the time limits and would be fired.

[00:27:30] Speaker 05:
No, Your Honor.

[00:27:31] Speaker 05:
Consider the time frame that took eight months between the grievance and the termination.

[00:27:35] Speaker 05:
Plaintiff could have easily provided, if in fact there was, there was truth to it, a doctor's note that said she was in fact disabled and could not attend that academy.

[00:27:49] Speaker 05:
So,

[00:27:51] Speaker 05:
Unless the panel has any other questions for me, I'll submit.

[00:27:53] Speaker 00:
I don't believe we do.

[00:27:54] Speaker 00:
Thank you.

[00:27:57] Speaker 00:
Thank you, Madam Clerk.

[00:27:58] Speaker 00:
You have a minute left for rebuttal.

[00:28:05] Speaker 01:
Thank you, Your Honor.

[00:28:06] Speaker 01:
Let me just comment on two points raised by the defendants here.

[00:28:11] Speaker 01:
The question of whether there was a retaliation claim under the FIHA

[00:28:17] Speaker 01:
is really sort of a red herring because it was clear from the very outset of this case that the plaintiff was contending that it was a violation of the provision in 12940A that talks about discrimination being of the termination or

[00:28:34] Speaker 01:
those kinds of interferences with the privileges of employment is the basis for a claim under the FIHA.

[00:28:44] Speaker 01:
Among that kind of action, not only was the termination the case here, but the fact that the issue of retaliation that was

[00:28:57] Speaker 01:
alleged in the initial pleadings was litigated, and the court never found that the claim of retaliation under the FIHA had somehow been waived by the plaintiffs.

[00:29:09] Speaker 01:
Indeed, my recollection is that that wasn't an issue before the district court.

[00:29:17] Speaker 01:
nature of the claim was litigated under the statute of the ADA, of course, but the whole question of whether there's retaliation or not was firmly before the court.

[00:29:28] Speaker 01:
There's no prejudice to the plaintiffs if there wasn't the actual listing of it initially.

[00:29:35] Speaker 01:
I'm sorry, Your Honor.

[00:29:36] Speaker 03:
Your claim of retaliation is that because she filed a grievance, then she was terminated, correct?

[00:29:45] Speaker 01:
Yes, but let me just... That was eight months later.

[00:29:49] Speaker 01:
I'm sorry?

[00:29:50] Speaker 03:
That was eight months later.

[00:29:51] Speaker 01:
No, let me look at it this way because the grievance was filed and then there was discussions and meetings of it and then almost

[00:30:01] Speaker 01:
right on the heels of that meeting, the chief said, I'm going to go forward with a termination, and he had to go through certain procedural steps to accomplish that end, including what's known as a Skelly hearing.

[00:30:15] Speaker 01:
And because the chief chose to go that route, the seven-month gap doesn't affect, doesn't make it untimely as a factor to take into account.

[00:30:28] Speaker 01:
as to whether or not there was retaliation or the other theory on the termination.

[00:30:37] Speaker 03:
So under these circumstances where you have a history that... You say it's retaliation to seek a skilly hearing?

[00:30:46] Speaker 01:
No, I'm saying the retaliatory act was based upon her claim that she or her raising of the reasonable accommodation discussions and all of the efforts to resolve this matter directly with Mr. Howe.

[00:31:01] Speaker 01:
And it was only after the grievance was filed, which was the grievance was an element in terms of trying to proceed with the reasonable accommodation claim efforts by

[00:31:13] Speaker 01:
the plaintiff.

[00:31:14] Speaker 01:
Because of that grievance being filed, within a matter of days she's taken off for the enrollment status into the POST.

[00:31:23] Speaker 01:
That certainly was an adverse action in itself.

[00:31:27] Speaker 01:
So when you look at the totality of the circumstances as presented by the plaintiff's case here,

[00:31:33] Speaker 01:
The fact that it took Mr. Howe some seven months to have his decision that he had made shortly at the grievance hearing itself, to have that rubber stamped by going through the Skelly hearing,

[00:31:52] Speaker 01:
It negates any argument that seven months somehow is too long.

[00:31:57] Speaker 01:
There's no magic formula.

[00:31:59] Speaker 01:
You look at the overall circumstances to determine whether there's retaliatory action or not.

[00:32:04] Speaker 00:
Thank you for your argument, counsel.

[00:32:06] Speaker 00:
I'm going to stop you there because we've, again, taken you away over your time.

[00:32:09] Speaker 00:
Thank you both for your arguments.

[00:32:11] Speaker 00:
We'll take this case under advisement, and we'll stand in recess for today.

[00:32:23] Speaker 04:
All rise.

[00:32:26] Speaker 04:
All persons having had business with the Honorable, the United States Court of Appeals for the Ninth Circuit will now depart.

[00:32:34] Speaker 04:
For this court, this session now stands adjourned.

[00:32:53] Speaker 03:
Take these into the conference room.