[00:00:02] Speaker 04:
Good morning, Your Honors.

[00:00:03] Speaker 04:
May it please the court, my name is Ada Wong on behalf of the appellant, Daniel Garcia.

[00:00:08] Speaker 04:
I would like to reserve three minutes of my time for rebuttal.

[00:00:11] Speaker 04:
As a brief overview, Mr. Garcia worked for Walmart since 1994 until he was compelled to resign in November 2019.

[00:00:19] Speaker 04:
That's approximately 25 years he was employed at Walmart.

[00:00:24] Speaker 04:
In the last 18 years of his employment, he worked in the lawn and garden department as an associate.

[00:00:30] Speaker 04:
Walmart knew of his vision impairment and the various managers that came and went from his store had accommodated him throughout his employment with different accommodations.

[00:00:42] Speaker 04:
This case is on appeal because the district court erred in granting summary judgment in favor of Walmart.

[00:00:48] Speaker 04:
The lower court erred by ignoring the summary judgment standard and instead substituted its own findings on hotly disputed facts and rendering conclusions that a jury is supposed to make.

[00:01:01] Speaker 04:
As such, my client and I respectfully request your honor as this panel to reverse and remand this case for trial.

[00:01:07] Speaker 04:
Mr. Garcia brought claims under the ADA, the Washington Law Against Discrimination,

[00:01:12] Speaker 04:
and other laws.

[00:01:14] Speaker 04:
For this morning, I intend on focusing on the disability discrimination failure to accommodate and retaliation claims.

[00:01:20] Speaker 04:
The heart of this appeal falls on the lower court's failure to follow the summary judgment standard.

[00:01:29] Speaker 04:
Civil Rule 56A is clear, and I quote, the court shall grant summary judgment if the movement shows that there is no genuine issue as to any material fact.

[00:01:39] Speaker 04:
and the movement is entitled to judgment as a matter of law.

[00:01:43] Speaker 04:
It is not for this panel or for the lower court to weigh conflicting evidence with respect to disputed material facts.

[00:01:50] Speaker 04:
And there were disputed material facts in this case.

[00:01:53] Speaker 03:
Which were?

[00:01:56] Speaker 04:
which were whether or not there was adverse action, whether or not there was causation in terms of the disability discrimination claims, as well as retaliation claims.

[00:02:07] Speaker 04:
Walmart had testified through its own 30B6 corporate representative, as well as their key witness, People Lead Alvarez, that they were not aware of any expected return to work date.

[00:02:19] Speaker 04:
At summary judgment, Walmart had tried to allege that they actually knew about this expected return to work date and therefore all of its actions were justified.

[00:02:31] Speaker 04:
There were also disputed material facts as to whether or not there were any accommodations granted and whether or not the interactive process was engaged by Walmart in good faith.

[00:02:42] Speaker 02:
Now Mr. Garcia attempted to return to work and was told that there were no positions.

[00:02:48] Speaker 04:
Yes, that is correct.

[00:02:49] Speaker 04:
Walmart had said, please wait.

[00:02:51] Speaker 04:
We'll wait for an open position.

[00:02:52] Speaker 04:
Once there's an open position, we'll put you into one.

[00:02:54] Speaker 02:
Now, when he sought to return to work and they responded there were no open positions at that time, did they say to him, we have a request from your doctor that you be excused from work until December 31st?

[00:03:09] Speaker 04:
No, Walmart never knew.

[00:03:11] Speaker 04:
Walmart's own key witnesses testified they were not aware of any expected return to work date.

[00:03:19] Speaker 04:
They were not aware of any doctor's note.

[00:03:21] Speaker 02:
So they said they weren't aware of it, so not only were they not aware of it, they of course then didn't tell him.

[00:03:26] Speaker 02:
So it sounds as though the only person who was aware of the possible return date of December 31 was the doctor who sent the note.

[00:03:33] Speaker 02:
Correct.

[00:03:34] Speaker 02:
The doctor didn't send it to Mr. Garcia, and so far as the record shows, nobody at Walmart ever read it.

[00:03:40] Speaker 02:
Correct.

[00:03:41] Speaker 02:
Or at least never remembered it, yeah.

[00:03:43] Speaker 04:
Correct.

[00:03:44] Speaker 04:
So therefore, any of its actions taken after by telling him and stringing him along for four months, saying, just wait for an open position, just wait for an open position, is... And is there evidence in the record that there were, in fact, open positions?

[00:03:57] Speaker 04:
Walmart's own employees testify to it.

[00:04:00] Speaker 04:
The store manager via the 30B6 corporate representative testified to it.

[00:04:03] Speaker 01:
And that's what I want to follow up on that question right there.

[00:04:06] Speaker 01:
So I did read the transcript of the 30B6 witness and she does say that there were positions available in Lawn and Garden.

[00:04:15] Speaker 01:
Your client said in the declaration that he was told there were no positions in Lawn and Garden.

[00:04:20] Speaker 01:
I think that's paragraph 10 of one of his declarations.

[00:04:22] Speaker 04:
Yes, and then he was also told in October, just a month before he felt compelled to resign, that there was no work for a blind person.

[00:04:31] Speaker 01:
And so on the discrepancy of whether or not there were positions available or not positions available, we have his declaration.

[00:04:39] Speaker 01:
Is there any other evidence, and I'm not saying it's insufficient, but I'm just trying to see, is there any other evidence besides what's in his declaration that Walmart told him, hey, look, we don't have any openings right now?

[00:04:53] Speaker 04:
Walmart testified that there were about 315 sales associate openings, which he was a sales associate.

[00:04:59] Speaker 04:
So besides the lawn and garden, he could have worked in any of the 315.

[00:05:02] Speaker 04:
Walmart had also testified that he was able to conduct the essential functions of his job.

[00:05:08] Speaker 04:
So he could work in any of the 315.

[00:05:10] Speaker 04:
open spots, but they never offered it to him.

[00:05:13] Speaker 04:
As a matter of fact, as you were stating, they had stated the opposite, which was to lie to him and tell him, just wait for an open position, just wait for an open position.

[00:05:21] Speaker 04:
And a month before he felt compelled to resign, they said there's no work for a blind person.

[00:05:25] Speaker 01:
That's what I'm trying to pick out is that other than his declaration,

[00:05:30] Speaker 01:
Is there any evidence in the record so far that supports his statement that, hey, I asked, and they said, nope, like there's not an email or another witness who says, oh, yes, that's what he was told?

[00:05:44] Speaker 01:
Is it just his declaration on that point?

[00:05:46] Speaker 04:
So there was a Department of the Blind VOC person that he had enlisted through the Department of the Blind to advocate for him, a vocational advocate, I believe it was what her name was, Brooke Davis, and she had also communicated with Walmart

[00:06:02] Speaker 04:
trying to get him to return to work because he, Mr. Garcia, had attempted to get back to work and had vocalized this as early as mid-July of 2019.

[00:06:12] Speaker 04:
When he realized he wasn't getting anywhere, that's when he invoked Brooke Davis' support to help him get back to work.

[00:06:18] Speaker 04:
And they had conversations together and separate with Wal-Mart about going back to work.

[00:06:24] Speaker 04:
So there's also testimony from her that they denied the accommodations and they did not let him go back to work.

[00:06:30] Speaker 01:
And I take it

[00:06:31] Speaker 01:
I want to be fair about this, but I take it Ms.

[00:06:33] Speaker 01:
Davis would testify effectively that no one at Walmart said, oh, by the way, Ms.

[00:06:37] Speaker 01:
Davis, there are jobs available for him right now.

[00:06:41] Speaker 04:
Correct.

[00:06:41] Speaker 04:
I don't believe that she had testified to what you were saying, that there were jobs available.

[00:06:45] Speaker 04:
They were told there were no jobs available to wait for an open position, which is why he kept following up.

[00:06:50] Speaker 01:
Because it seems to me that the way I look at this case, that's one of your best points, is that if an employee is given different reasons for why they can't come back, that leads to an inference that maybe something fishy is going on here.

[00:07:02] Speaker 01:
I think that's kind of the sense of your argument.

[00:07:05] Speaker 04:
Yes, Your Honor, yes.

[00:07:08] Speaker 04:
And all of this would be a jury question.

[00:07:12] Speaker 04:
So not only are there disputed facts between the parties, but a lot of the dispute comes from Walmart's own employees.

[00:07:21] Speaker 04:
And what Walmart did at the summary judgment stage was just try to pick out, well, which evidence supports their position, even though it comes from the same employee.

[00:07:35] Speaker 04:
And it was improper for the lower court to conclude that an expected return to work date means that Walmart was justified in all of its actions and that it could just sit on the note and lie to him and not explore alternate work.

[00:07:47] Speaker 04:
An expected return to work date does not, as a matter of law, preclude Mr. Garcia from doing any and all work.

[00:07:53] Speaker 04:
But at the end of the day, this expected return to work date is near irrelevant because Walmart never knew of this during Mr. Garcia's employment.

[00:08:02] Speaker 04:
It also doesn't make sense that because Walmart is alleging that Mr. Garcia knew of his expected return to work date and before he had resigned, there is actually no evidence of this.

[00:08:13] Speaker 04:
And if you take a clear look at the record that Walmart actually presented, they are all inferences that Walmart has attempted to try to have you draw

[00:08:22] Speaker 04:
to show that Mr. Garcia allegedly knew about the expected return date, which he never knew about.

[00:08:31] Speaker 04:
And the doctor, Dr. Mee, who had provided this expected to return date, also testified that had she been asked, she could have and would have changed that expected to return date and just wanted to give him enough time to be out of work had he wanted to continue to seek leave.

[00:08:56] Speaker 04:
Whether Wal-Mart discriminated against Mr. Garcia on the basis of his disability is a question for the jury as well.

[00:09:03] Speaker 04:
Only two of the four elements were disputed by Wal-Mart, adverse action and causation.

[00:09:08] Speaker 04:
And I'll take both of these in turn under the analysis of summary judgment standard, which is, are there disputed material facts?

[00:09:15] Speaker 04:
Again, we say that there are first under adverse action.

[00:09:18] Speaker 04:
Mr. Garcia went on leave around June 1st of 2019.

[00:09:22] Speaker 04:
As of mid-July 2019, he notified Walmart that he wanted to return to work.

[00:09:27] Speaker 04:
He was continuously told by multiple people to wait for an open position.

[00:09:30] Speaker 04:
And despite his follow-up, he was never told about any restrictions.

[00:09:38] Speaker 04:
Walmart had conceded that they were not aware of any medical restrictions or any expected to return to work date.

[00:09:44] Speaker 04:
Although there need only be one type of adverse action to survive summary judgment, Mr. Garcia has presented evidence of at least three different types of adverse action.

[00:09:54] Speaker 04:
One being forced to remain on unpaid leave for approximately four months.

[00:09:59] Speaker 04:
Two is not being allowed to do any work even though Walmart testified there were 315 positions he could have and qualified for during his employment.

[00:10:09] Speaker 04:
And three, being compelled to resign after those four months of being strung along, combined with comments that he should retire early, he should think about retirement, referring to him as a liability, saying there's no work for a blind person, and refusal to allow him to work in any capacity at all, whether it be part-time, seasonal, with or without accommodation.

[00:10:30] Speaker 02:
One thing, this is kind of a detail.

[00:10:35] Speaker 02:
One thing that I'm concerned about or I'm puzzled about is when he got the state involved, there was a request by somebody working for the state that he be allowed to use some sort of a head-worn device, and that was refused.

[00:10:58] Speaker 04:
Correct.

[00:10:59] Speaker 04:
So it was a wearable headlight and a wearable magnifier.

[00:11:02] Speaker 04:
So what Mr. Garcia had used in the past as a handheld magnifying glass.

[00:11:08] Speaker 04:
There really isn't a dispute as to handheld magnifying glass because he was able to use it.

[00:11:13] Speaker 02:
He apparently used that routinely while he was working.

[00:11:15] Speaker 04:
Correct, correct.

[00:11:17] Speaker 04:
But he wanted a wearable headlight for the darker spaces, and he and the Brook Davis, the vocational rehab counselor.

[00:11:24] Speaker 02:
And a wearable magnifier as well?

[00:11:25] Speaker 04:
As well as to wear a magnifier.

[00:11:27] Speaker 04:
And part of that is because he sometimes, infrequently, but still sometimes had to climb the ladder to

[00:11:35] Speaker 04:
stock the shelves or get up there or look.

[00:11:37] Speaker 04:
So he wanted to be safe and have two free hands instead of having to climb the ladder with only one free hand because he has to use a handheld magnifier.

[00:11:46] Speaker 04:
So he had requested a wearable headlight and a wearable magnifier which Walmart denied basically outright saying it does not comply with the uniform.

[00:11:54] Speaker 02:
And that was during the period when he was not working that they didn't they say you can't do that?

[00:11:59] Speaker 04:
I believe that he had made that request before July, mid-July of 2019.

[00:12:07] Speaker 02:
And when does Walmart respond, you can't do it?

[00:12:10] Speaker 04:
Sorry, I want to make sure I get this date right.

[00:12:25] Speaker 02:
I think we're talking September 24, 2019.

[00:12:38] Speaker 02:
That's the date that you're... Correct.

[00:12:43] Speaker 02:
Yes, Your Honor.

[00:12:43] Speaker 04:
September 24th, 2019, he had requested to use a wearable headlight for darker areas, as well as a magnifying glass, as well as the wearable magnifier.

[00:12:52] Speaker 02:
And I think at that date, he was not working.

[00:12:56] Speaker 04:
He was not working.

[00:12:57] Speaker 02:
But wanted to come back.

[00:12:58] Speaker 04:
Correct, and had been very vocal about coming back and wanting to come back.

[00:13:01] Speaker 02:
And this was one of the requests that was made on his behalf.

[00:13:05] Speaker 04:
Correct.

[00:13:05] Speaker 02:
And it was denied based on, wait a minute, that's not part of the uniform.

[00:13:10] Speaker 04:
Correct.

[00:13:11] Speaker 02:
OK.

[00:13:11] Speaker 04:
Yes.

[00:13:12] Speaker 04:
And I would like to reserve the remaining time that I have.

[00:13:15] Speaker 04:
Thank you very much.

[00:13:15] Speaker 03:
You're welcome.

[00:13:26] Speaker 00:
Good morning.

[00:13:26] Speaker 00:
May it please the court.

[00:13:28] Speaker 00:
My name is Stephen Kendall appearing on behalf of respondent Walmart.

[00:13:32] Speaker 00:
In this case, the district court did not air improperly granted summary judgment to Walmart on all claims.

[00:13:38] Speaker 00:
While we recognize review was de novo, we believe this court will also find just as lower court did that there's no genuine dispute as to any material fact and the defendant remains entitled to judgment as a matter of law.

[00:13:49] Speaker 00:
When it comes to this case, there are

[00:13:52] Speaker 00:
Three core policy issues that arise that touch on each of plaintiffs claims and these policy issues arise because we don't want employers to question employees doctors notes.

[00:14:03] Speaker 00:
We don't want them proactively reaching out to employees doctors and having medical discussions with them.

[00:14:08] Speaker 02:
Yeah, but it sounds as though the doctor's notes really not part of the case that they don't mention that he doesn't mention that I mean Do you dispute what was just told to us that the Walmart people testified they were unaware of the note?

[00:14:23] Speaker 00:
I do dispute that the the evidence in the record that Walmart actually received information about the restriction is overwhelming and

[00:14:30] Speaker 00:
For one.

[00:14:31] Speaker 02:
No, no, that's a different question.

[00:14:33] Speaker 02:
Receiving the information and having the people in Walmart who are doing the actions knowing about the information are two different questions.

[00:14:41] Speaker 02:
Do we have evidence that the Walmart people knew about the doctor's note, the people who are engaged in the negotiations or interactions with the plaintiff?

[00:14:49] Speaker 00:
Yes, we do.

[00:14:50] Speaker 00:
And so this is for two specific employees.

[00:14:52] Speaker 00:
This would be for store manager Cynthia Guajardo.

[00:14:54] Speaker 00:
And then we also have Widalas Alvarez, who was a manager doing HR duties.

[00:14:59] Speaker 00:
Ms.

[00:15:00] Speaker 00:
Guajardo actually testified at her deposition after she'd had a chance to look at documents and refresh her recollection that she was aware of the restriction imposed by the note.

[00:15:09] Speaker 02:
And did Walmart people ever tell him the reason we're not having you come back is you've got a doctor's note requesting that you can't come back until December 31?

[00:15:18] Speaker 00:
So we don't have evidence in the record showing that they actually specifically told him that date.

[00:15:22] Speaker 02:
Do we have evidence that in fact said there are no jobs available for you?

[00:15:27] Speaker 00:
I think as Judge Owens pointed out, it looks like from plaintiff's declaration, he says that he was told that there are no jobs.

[00:15:34] Speaker 02:
Yeah, and do you dispute the truth of that?

[00:15:36] Speaker 00:
I do not.

[00:15:37] Speaker 00:
However, I think that when we're looking at what he was told, for example, by store employees, right, when we're looking at being told you need to just wait, when there is a medical, a full medical restriction that says you cannot return to work until X date, absent an earlier date.

[00:15:52] Speaker 02:
But let me ask it this way.

[00:15:54] Speaker 02:
Sure.

[00:15:54] Speaker 02:
If, when he asked to come back to work, he's not told, hey, wait a minute, your doctor said you can't come back to work until December 31.

[00:16:02] Speaker 02:
He's instead told you can't come back to work at the general positions, and he presents evidence that there were positions.

[00:16:10] Speaker 02:
That sounds to me as though he's got a cause of action here and go to the jury in terms of what's true.

[00:16:14] Speaker 00:
Well, I would disagree, and here's why.

[00:16:17] Speaker 00:
I think plaintiff's theory of the case is trying to create an affirmative obligation where an employer must, one, assume that the employee does not know the information contained in his own doctor's notes being sent on his behalf.

[00:16:31] Speaker 00:
And two, a new affirmative obligation to have to tell them what's contained in that doctor's note.

[00:16:38] Speaker 02:
But that's not quite my question.

[00:16:40] Speaker 02:
My question is, what happens when they say there's a reason you can't come back?

[00:16:45] Speaker 02:
And the reason you can't come back is that there are no positions.

[00:16:48] Speaker 02:
Now, when they say that and they don't say, we got a doctor's note, does not that raise at least a possible inference that they're discriminating against him?

[00:16:58] Speaker 00:
I don't think so.

[00:16:59] Speaker 00:
And here's why.

[00:17:00] Speaker 00:
Because when you have this full medical restriction, that's not an untruthful statement.

[00:17:05] Speaker 00:
To say there are no positions you need to wait, that aligns with the fact that you cannot return to work at that time until such a date comes that's on the doctor's list.

[00:17:14] Speaker 03:
But is it positions available or not?

[00:17:15] Speaker 03:
Is it irrelevant if he can't return to work?

[00:17:18] Speaker 03:
Correct.

[00:17:19] Speaker 00:
Correct.

[00:17:19] Speaker 03:
I mean, that's sort of... But they didn't tell them that.

[00:17:21] Speaker 03:
They did say there are no positions available.

[00:17:24] Speaker 03:
And I think that goes to... Sounds like a pretext to me.

[00:17:27] Speaker 00:
I think that goes to the policy argument we're making that employers need to be able to operate under the basis that employees are aware of what their doctors are sending on their behalf.

[00:17:38] Speaker 00:
I think that's extremely important for employers to be able to do here, because otherwise we're opening ourselves up to a situation where employers now have to question information in the doctor's notes, perhaps proactively reach out to doctors, but that's prohibited by the FMLA, for example.

[00:17:55] Speaker 00:
We don't want employers proactively reaching out to doctors, questioning the information in the notes.

[00:18:02] Speaker 00:
Both sides need to operate under the presumption that everyone knows what the doctor is telling them.

[00:18:08] Speaker 01:
Let me give you a hypothetical.

[00:18:09] Speaker 01:
Let's put the doctor's note aside.

[00:18:11] Speaker 01:
Sure.

[00:18:11] Speaker 01:
So let's say I'm a high school junior and I go to try out for the basketball team and there's a tryout.

[00:18:17] Speaker 01:
And the coach says, well, John, you know what?

[00:18:19] Speaker 01:
We're all full this year.

[00:18:21] Speaker 01:
Sorry, you're a great player, but we're all full.

[00:18:24] Speaker 01:
There are no spots for you on the team.

[00:18:25] Speaker 01:
So I get cut.

[00:18:27] Speaker 01:
And then I find out a week later, there are actually five roster spots on the team that went unfilled.

[00:18:32] Speaker 01:
Now, isn't there at least a pretext that the coach was not being honest with me, that the coach just didn't want me on the team?

[00:18:38] Speaker 01:
But the reason he said that was because that was the easy way to say it.

[00:18:43] Speaker 00:
I think that analogy is a little different here, and I'll explain.

[00:18:47] Speaker 00:
Because the situation we're dealing with in this case, when the employees are telling him, as Mr. Garcia is saying, just wait, we don't have spots, that's factually true, because there are not spots if you are completely medically restricted.

[00:19:03] Speaker 01:
Okay, but that's a different, well hold on, but that's not what he was told.

[00:19:06] Speaker 01:
He was told there are no spots, correct?

[00:19:08] Speaker 01:
His declaration was that they told me there were no jobs available.

[00:19:12] Speaker 01:
It was not, there are no jobs available for someone who has your eye condition.

[00:19:16] Speaker 01:
Correct?

[00:19:17] Speaker 00:
Sure.

[00:19:17] Speaker 01:
So let's get back to the hypothetical I raised.

[00:19:22] Speaker 01:
How is that different from the facts that he alleges in this case?

[00:19:25] Speaker 00:
Because in this case, I think the analogy is still different because in order for the analogy to work, the coach would need to be aware of, for example, something preventing the student from being on the basketball team.

[00:19:39] Speaker 01:
According to the plainest version of the fact, Walmart didn't know that.

[00:19:43] Speaker 00:
Correct, and that's just simply not supported by the record.

[00:19:46] Speaker 01:
The the record again has overwhelming evidence that Walmart was aware of the restriction and I can I can so okay So let's assume they did know that the fact that they didn't tell him that was the reason Isn't that an issue that the coach and my analogy the coach wasn't being straight with him and by in this his analogy that Walmart wasn't being straight with him

[00:20:06] Speaker 00:
I think not because I think it goes back to this idea that we're creating an affirmative obligation to tell employees what is on their own doctor's notes.

[00:20:19] Speaker 01:
But isn't there a jury trial issue from his version?

[00:20:23] Speaker 01:
I'm not saying these are the facts.

[00:20:24] Speaker 01:
His version of the facts is that Walmart lied to him about the reason why he couldn't come back.

[00:20:29] Speaker 00:
I don't believe there's a jury issue here, and this is why.

[00:20:33] Speaker 00:
When we're looking at the note and the restrictions it provided,

[00:20:37] Speaker 00:
We have ample evidence that Walmart was aware of the restriction.

[00:20:41] Speaker 00:
For example, if we look at SCR 2829, Ms.

[00:20:44] Speaker 00:
Guajardo aware of the restriction provided by the note.

[00:20:47] Speaker 00:
We also have... She says she's aware.

[00:20:50] Speaker 02:
Correct, yes.

[00:20:51] Speaker 02:
She might be lying.

[00:20:53] Speaker 00:
Well, if we look at other pieces of evidence in the record, for example, SCR 9, Walmart receives automated messages from Sedgwick when Sedgwick receives new information.

[00:21:04] Speaker 00:
So we even have in the record one of these emails being sent that contains the information in the note along with the December 31st date.

[00:21:11] Speaker 00:
Along with that, Ms.

[00:21:13] Speaker 00:
Alvarez, she was one of the HR supervisors at the store level.

[00:21:17] Speaker 00:
She testified to being aware of the restrictions as well.

[00:21:19] Speaker 00:
And actually in the record that we see at SCR 36 to 38, Ms.

[00:21:25] Speaker 00:
Alvarez actually contacted Sedgwick, was asking about a status update, and was told the plaintiff remained on this leave.

[00:21:31] Speaker 02:
So what is it exactly that was said in the doctor's letter?

[00:21:34] Speaker 02:
And the reason I'm asking that question is,

[00:21:37] Speaker 02:
If he says I want to come back to work Isn't that possibly to be construed as okay?

[00:21:43] Speaker 02:
I my doctor asked that as a possibility, but listen.

[00:21:46] Speaker 02:
I'm ready to come back So in the sense contradicting the doctor so he should not listen on the doctor asked for that, but I don't need it I

[00:21:55] Speaker 00:
So that's not what happened in this case.

[00:21:57] Speaker 00:
There's a difference here.

[00:21:58] Speaker 00:
So the doctor's note itself, and I know my friend opposing counsel really likes to speak to, if you look at the note at the top of it where it says expected return to work date, right?

[00:22:07] Speaker 00:
If you look below that in section B, it says, completely unambiguously, I certify that the associate named above is medically able to resume work on December 31st, 2019.

[00:22:19] Speaker 02:
That's an affirmative statement.

[00:22:20] Speaker 02:
He will be able then.

[00:22:21] Speaker 02:
It does not say he's unable to work before then.

[00:22:24] Speaker 00:
Resume, medically able to resume, I think is the key part there, right?

[00:22:28] Speaker 02:
No, you didn't take my point.

[00:22:30] Speaker 02:
He says he's medically able to resume on 31st.

[00:22:33] Speaker 02:
It does not say he's unable to resume before that.

[00:22:38] Speaker 00:
I would disagree with that reading of the note.

[00:22:40] Speaker 00:
I think that, and also other parts of the note speak to the fact that you're not able to work prior to that date.

[00:22:46] Speaker 00:
For example, underneath the medical certification for the return to work date, we also have when they can return, there are certain restrictions that apply.

[00:22:55] Speaker 00:
So the note not only goes to when you can return, but upon this date hitting, that trigger date, what are the restrictions we're looking at?

[00:23:03] Speaker 00:
What kind of reasonable accommodations do we need to look out upon the return?

[00:23:07] Speaker 02:
And what kind of restrictions are we talking about?

[00:23:10] Speaker 02:
For example, he might like to have a head-worn magnifying device.

[00:23:15] Speaker 00:
So in this case, on Dr. Mee's note, they're listed out as things such as bending, seeing, breathing, pulling, those sorts of things.

[00:23:22] Speaker 00:
And the doctor will provide, related to that specific activity, how much they can perform that activity.

[00:23:29] Speaker 00:
And then Sedgwick will view the note, determine what sort of reasonable accommodations can come from that.

[00:23:35] Speaker 00:
So when we're looking at plaintiff's causes of action, a large part of what the district court found is a lack of adverse action in this case.

[00:23:45] Speaker 00:
Plaintiff describes his leave as forced.

[00:23:48] Speaker 00:
However, plaintiff voluntarily took the leave that he requested.

[00:23:52] Speaker 00:
First, he requested leave beginning on June 1st.

[00:23:55] Speaker 00:
That leave was approved, and it was originally supposed to last until June 30th.

[00:23:59] Speaker 00:
However, on July 4th, Mr. Garcia requested an extension of leave.

[00:24:05] Speaker 00:
So at this time, he requests longer leave and he goes through Sedgwick, again, the third party administrator, and requests for his leave to be extended.

[00:24:14] Speaker 00:
Now, Sedgwick sends him a letter dated July 26th.

[00:24:17] Speaker 03:
I can't hear you.

[00:24:19] Speaker 00:
I'm so sorry.

[00:24:20] Speaker 00:
Let me raise the podium a little bit.

[00:24:21] Speaker 00:
I think the microphone's a little bit low for me.

[00:24:27] Speaker 00:
So on July 4th is when he requests the extension.

[00:24:29] Speaker 00:
Is that better?

[00:24:31] Speaker 00:
Yes.

[00:24:32] Speaker 00:
On July 5th, he sends a letter saying, here's a medical packet.

[00:24:35] Speaker 00:
Please take this to your doctor.

[00:24:36] Speaker 00:
Have her complete it so that we can put you on the leave.

[00:24:39] Speaker 00:
On July 4th, Dr. Me, the doctor at issue plaintiff's treating doctor at the time, fills out one of the pages, which is this return to work form that we see at SCR 68.

[00:24:50] Speaker 00:
She completes it along with the December 31st return to work date and sends it over to Sedgwick.

[00:24:55] Speaker 00:
Now, Sedgwick contacts Planovia Letter on July 26th, that is two days after Dr. Mee filled out the form, saying, we only received the return to work form, we really need the rest of the packet.

[00:25:07] Speaker 00:
Now, plaintiff does not respond to this letter, nor does he respond to additional letters sent by Sedgwick after the fact.

[00:25:14] Speaker 00:
However, Dr. Mee's complete medical restriction, again, certifying that he can resume work on December 31st meant that Mr. Garcia could not return to work until such that date.

[00:25:27] Speaker 00:
Now, because of that, these leaves were not forced.

[00:25:30] Speaker 00:
They were by his own request.

[00:25:32] Speaker 00:
And then Mr. Garcia stated he wanted to return to work sooner than that.

[00:25:36] Speaker 00:
However, he never contacted Dr. Me for an earlier return to work date.

[00:25:40] Speaker 00:
One of the points that Mr. Garcia makes is that Dr. Me would have provided him with an earlier return to work date had he asked.

[00:25:49] Speaker 00:
However, I think that cuts against Mr. Garcia's argument.

[00:25:52] Speaker 00:
That means that had he simply properly communicated with his doctor, she would have been able to provide updated information to Walmart and Sedgwick to allow him to return as he wanted.

[00:26:03] Speaker 02:
The problem I have with that argument is that he was never told by Walmart, well, wait a minute, your doctor requested leave until the 31st of December.

[00:26:13] Speaker 02:
And that's why we're not letting, abiding by your request.

[00:26:19] Speaker 02:
They said something quite different.

[00:26:21] Speaker 02:
They said, listen, there are no spots.

[00:26:23] Speaker 02:
And they didn't say there are no spots because your doctor said you can't work.

[00:26:28] Speaker 02:
They just said there are no spots.

[00:26:30] Speaker 00:
I would say in response to that, the onus is on Mr. Garcia to know what his doctor, as his doctor, is sending on his behalf to the employer.

[00:26:39] Speaker 02:
But why is not the onus on you or your client to tell him the actual reason instead of what seems to me a very stretched reason, which is to say, you say, well, what they meant was there are no spots because your doctor says you can't do it.

[00:26:56] Speaker 02:
But that's not what they said.

[00:26:57] Speaker 02:
They just said there are no spots.

[00:26:59] Speaker 00:
Sure, and I think this again goes to the policy issue where both sides, when we're talking about either FMLA or ADA, both sides, employer and employee, need to be able to operate under the reasonable presumption that everyone knows what's on these doctor's notes.

[00:27:14] Speaker 00:
That's really important because otherwise we're going to have employers that don't know what restrictions are being provided.

[00:27:20] Speaker 00:
At the same time, we'll have a case like this where an employee does not know what his doctor is saying on his behalf to his employer.

[00:27:28] Speaker 00:
I wanted to talk briefly about the failure to accommodate claim.

[00:27:32] Speaker 00:
Now here, as Mr. Garcia admits, he was always allowed use of the magnifying glass.

[00:27:39] Speaker 00:
He was able to perform his job duties with the assistance of the magnifying glass all the way up until this critical date, which is June 1st, when he took his leave.

[00:27:48] Speaker 00:
Now, after Mr. Garcia goes on leave,

[00:27:52] Speaker 00:
Unfortunately, he was responsible for the breakdown in the interactive process.

[00:27:56] Speaker 00:
Now, an employee can bear the responsibility for the breakdown in the interactive process if they fail to provide appropriate supporting medical paperwork.

[00:28:03] Speaker 00:
This is from Alan V. Pacabel.

[00:28:04] Speaker 00:
That's 348 F3rd, 1113.

[00:28:08] Speaker 00:
Now in this case, we have at least three letters that Sedgwick sent Mr. Garcia on Walmart's behalf asking for updated information.

[00:28:16] Speaker 00:
Unfortunately, Mr. Garcia did not reply to any of these requests for additional information.

[00:28:21] Speaker 00:
This was a key component of the court finding that the failure to accommodate claim did not succeed.

[00:28:27] Speaker 00:
I'm noticing that I'm out of time.

[00:28:29] Speaker 02:
How do you deal with the refusal to allow him to have the head-worn headlight and magnifier?

[00:28:35] Speaker 00:
At that time, Mr. Garcia could not use any accommodations because he was out on that medical restriction.

[00:28:43] Speaker 02:
But that was not the reason given.

[00:28:44] Speaker 02:
The reason given was it doesn't comply with the uniform.

[00:28:47] Speaker 00:
Right, and I believe the employee that is spoken about in this interaction is named Cindy Gonzalez.

[00:28:54] Speaker 00:
She was, as you'll see in the record from her testimony, she was not plaintiff supervisor, she was unaware of his job duties, and also was not responsible for administering his leave or accommodations.

[00:29:06] Speaker 02:
And so why was she in fact talking to the agent of the state?

[00:29:10] Speaker 00:
It seems that they must have approached her when they went to the store.

[00:29:14] Speaker 02:
And she didn't say, hey, I've got no authority to say this, but I'm going to tell you anyway that that's inconsistent with the uniform and you therefore can't do it?

[00:29:23] Speaker 00:
I would have to infer what additionally was said outside of that, but we do know that she was not plaintiff's supervisor, nor was she administering the leave or his accommodations at that time.

[00:29:36] Speaker 02:
But was this raised in the district court?

[00:29:40] Speaker 02:
of the the incident regarding miss gonzalez yes i believe the party's i'm not i'm not sure i'm looking at stuff in the district court that it was raised okay but uh... so one of the things i'm asking is was it was it appropriately raised i didn't see you saying in your brief it was not appropriately raised uh... i i don't believe we did yeah okay all right thank you counsel yes thank you

[00:30:15] Speaker 04:
Your Honours, I'll be really brief here.

[00:30:17] Speaker 04:
I just want to address a couple of things.

[00:30:19] Speaker 04:
The record is very clear as to Walmart's key witnesses' testimony, and I will point to page 5 of our reply brief with the transcript that's excerpted from both the 30 v 6 corporate representative not having any knowledge, ever seeing or knowing of Dr. Mee's expected return to work date via her note.

[00:30:40] Speaker 04:
as well as people lead Alvarez's testimony that she was not aware prior to Mr. Garcia resigning of any medical restriction.

[00:30:49] Speaker 04:
An expected return to work date is one that is expected of when an employee can return.

[00:30:56] Speaker 04:
It is not as a matter of law under summary judgment standards.

[00:30:59] Speaker 04:
The only date an employee can return to work.

[00:31:03] Speaker 04:
And it does not preclude the employee from returning earlier or returning later.

[00:31:07] Speaker 04:
We see these instances all the time.

[00:31:09] Speaker 04:
where employees request leave for a certain date and then either come back earlier or request for additional extension.

[00:31:16] Speaker 04:
But all that is irrelevant because Walmart's own testimony is that they were not aware of any medical restrictions or an expected to return to work date.

[00:31:26] Speaker 02:
And I would also point this... I just heard something quite the opposite from your friend on the other side.

[00:31:33] Speaker 02:
What's going on here?

[00:31:35] Speaker 02:
on whether or not Walmart knew of the... He gives me chapter and verse and so and so says, yes, she was well aware of that.

[00:31:42] Speaker 04:
Yeah, so the deposition testimony on page five of our reply brief states this.

[00:31:47] Speaker 04:
The question is, were you aware before November 14th, 2019, as to whether or not Mr. Garcia had any medical restrictions on being able to come back to work at Walmart?

[00:31:56] Speaker 04:
Answer, no.

[00:31:57] Speaker 04:
The 30B6 testimony is this.

[00:31:59] Speaker 04:
Question, medical paperwork.

[00:32:00] Speaker 04:
I believe you testified that goes through Sedgwick directly.

[00:32:03] Speaker 04:
Correct?

[00:32:04] Speaker 04:
Answer, yes.

[00:32:05] Speaker 04:
Question, so does Walmart itself by facility or store level receive the medical paperwork that a provider or doctor signs?

[00:32:11] Speaker 04:
Answer, no.

[00:32:13] Speaker 04:
Question, and Cedric does not provide a copy of the doctor's letter to Walmart on a facility or store level, correct?

[00:32:19] Speaker 04:
Answer, correct.

[00:32:20] Speaker 04:
Question, which is why you never saw Dr. Me's letter or no, correct?

[00:32:24] Speaker 04:
Answer, that would be right.

[00:32:26] Speaker 04:
I can see that I'm out of time, so unless there... You know them, just making sure.

[00:32:30] Speaker 01:
You good?

[00:32:32] Speaker ?:
I'm good.

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

[00:32:32] Speaker 04:
Thank you so much, Your Honors.

[00:32:34] Speaker 01:
Thank you both for your briefing and argument.

[00:32:36] Speaker 01:
This matter is submitted.