[00:00:26] Speaker ?:
sense.

[00:01:07] Speaker 05:
They also gave him different kind of watches to accommodate his diabetes.

[00:01:16] Speaker 04:
They did.

[00:01:17] Speaker 05:
So, and I understood, Gonzalez took them.

[00:01:21] Speaker 05:
He did.

[00:01:23] Speaker 05:
And he remained employed.

[00:01:25] Speaker 05:
He did.

[00:01:28] Speaker 05:
Well, those are the only requests in front of us, aren't they?

[00:01:31] Speaker 05:
Well, not exactly.

[00:01:38] Speaker 03:
That's correct.

[00:01:40] Speaker 03:
But the issue for him is the accommodation process itself.

[00:01:46] Speaker 03:
It was not... Last time when I was going through everything, I would exhort you to read his declaration in the... Well, I've read his declaration and I tried to apply the law, if you will, as it is here.

[00:03:39] Speaker ?:
He doesn't have to have the same assignment.

[00:03:43] Speaker 05:
No, I understand.

[00:03:44] Speaker 05:
All he has to have is an alternative assignment.

[00:03:47] Speaker 05:
And as I understand he not only got the alternative assignment, but he was guaranteed that he'd never make less.

[00:03:54] Speaker 05:
I understand.

[00:04:22] Speaker 05:
doing what you said, I want an accommodation.

[00:04:25] Speaker 05:
Or I want to fight about it.

[00:04:27] Speaker 05:
I mean, he's saying I want to fight about it, but the Rehabilitation Act doesn't require the Navy to allow him to have the same position.

[00:05:01] Speaker 05:
Really talking about the second prong, you have to prove otherwise qualified, because you're saying that the qualifications were trumped up.

[00:05:12] Speaker 05:
But what you have to prove is you have to have a proof of a person with a disability, which I don't think anybody questions, but then that there was an adverse action because of the disability.

[00:05:29] Speaker 05:
talk about the second one, even if I give you the second one, I can't find any evidence here there was adverse action because of the disability.

[00:06:10] Speaker 05:
action because of his disability, he did not.

[00:06:14] Speaker 05:
I mean, there's no evidence that he did.

[00:06:17] Speaker 05:
He got another job.

[00:06:18] Speaker 05:
He got a pay increase.

[00:06:19] Speaker 05:
He got everything he wanted.

[00:06:21] Speaker 05:
That's your best argument.

[00:06:23] Speaker 03:
Let me finish.

[00:06:24] Speaker 03:
Okay.

[00:06:25] Speaker 03:
The problem with that analysis is, right, if those weren't essential functions, he wasn't a qualified individual and he shouldn't have been put into RA and he shouldn't have been demoted.

[00:06:46] Speaker 04:
Have you heard, have the parties here gone through a mediation under the court's auspices?

[00:06:56] Speaker 04:
Yes, we did.

[00:06:58] Speaker 04:
Yes, sir.

[00:07:01] Speaker 04:
Is it, of having heard what you've heard so far today, is there any chance if we ask you to mediate again that this matter could be resolved by agreement?

[00:07:23] Speaker 03:
as I can do that.

[00:07:24] Speaker 03:
Thank you.

[00:07:28] Speaker 01:
She can just talk if she wants to, since she's co-counsel.

[00:07:31] Speaker 01:
May it please the court, Nancy Doumanian, for the appellants.

[00:07:35] Speaker 01:
Your Honor, we did have a mediation with our magistrate judge.

[00:07:38] Speaker 01:
It obviously didn't result in resolution.

[00:07:41] Speaker 01:
We're always happy to discuss that again.

[00:07:44] Speaker 01:
And we're always ready and willing and available to listen and to talk, Your Honor.

[00:07:51] Speaker 05:
answer your question, Judge Gould?

[00:07:54] Speaker 04:
Yes, I think so.

[00:07:55] Speaker 05:
You have any other questions you want to give them right now?

[00:08:00] Speaker 05:
I don't, Your Honor.

[00:08:01] Speaker 01:
Thank you.

[00:08:01] Speaker 01:
Thank you so much, Your Honors.

[00:08:02] Speaker 01:
I apologize.

[00:08:03] Speaker 05:
All right, we're now going to the other two.

[00:08:05] Speaker 05:
Okay.

[00:08:08] Speaker 05:
You don't dispute that the other two could not perform one or more of

[00:08:18] Speaker 05:
The accommodation the other two requested was that they not do them at all or they make others do their job since they couldn't do them.

[00:08:33] Speaker 05:
I don't think they ever said that second part.

[00:08:35] Speaker 05:
Well, I thought they said they were going to have somebody else add so many

[00:08:50] Speaker 05:
words then okay all right so then we're left to argue that they were not essential functions correct that's your argument yes sir all right and if we look at whether they were essential

[00:10:03] Speaker 03:
Well, but... That's a your circuit.

[00:10:08] Speaker 05:
I understand, but these are not modifications for just becoming a police officer, as it was in Cripe.

[00:10:18] Speaker 05:
That's not true.

[00:10:19] Speaker 03:
Cripe, all the people involved were police officers.

[00:10:22] Speaker 05:
Well, I understand, but there were age and length of

[00:10:51] Speaker 03:
or training because they couldn't do patrol duties.

[00:10:55] Speaker 03:
They had to do a year of patrol before three years of the specialized duty, and they had to do a year of patrol after the specialized duties.

[00:11:06] Speaker ?:
And they couldn't do patrol.

[00:11:07] Speaker 03:
I understand.

[00:11:09] Speaker 05:
So I guess what I'm trying to do, you wanted to give me an argument about that.

[00:11:17] Speaker ?:
So I allowed you to do it, but my worry

[00:11:59] Speaker 03:
actions or because of the disability that

[00:12:27] Speaker 05:
So I'm trying to let you respond to the government.

[00:13:11] Speaker 05:
job and therefore pretext.

[00:13:16] Speaker 05:
You don't say others who didn't have the disabilities got better.

[00:13:22] Speaker 05:
You don't say that.

[00:13:24] Speaker 05:
You don't say others who had other kinds of disabilities got better.

[00:13:30] Speaker ?:
You don't say that.

[00:13:31] Speaker ?:
All you say is

[00:13:46] Speaker 03:
disabilities, but they didn't get terminated, just these four people.

[00:14:25] Speaker ?:
As far as we know, Matthew Cruz says everybody else was fine.

[00:14:29] Speaker ?:
It was these four who raised problems.

[00:14:33] Speaker ?:
I was going to use your word, but raised problems and raised issues.

[00:14:37] Speaker 03:
Other disabled instructors, other disabled police officers, there's no evidence that any of them, though disabled, admittedly disabled, actually met these additional PDs.

[00:14:54] Speaker 03:
terminated or affected we have no evidence of that so I think the inferences give us plenty of support for the conclusion that these four men were targeted but even if they weren't it goes back to

[00:15:56] Speaker 02:
Carlos del Toro.

[00:15:57] Speaker 02:
This appeal directly implicates the Navy's ability to improve upon and continually evolve its security operations at Navy bases across an entire region.

[00:16:08] Speaker 02:
In this case, the 10 naval installations in Navy Region Southwest.

[00:16:14] Speaker 02:
There's ample evidence supporting those changes.

[00:16:27] Speaker 02:
that may be required all of its police officer instructors to not only teach in the classroom, but to also provide on the ground law enforcement services.

[00:16:39] Speaker 02:
And there are concrete reasons in the record that that was needed.

[00:16:52] Speaker 02:
The primary evidence is the declaration of Mr. Cruz.

[00:16:56] Speaker 02:
Appellant is incorrect in alleging

[00:17:23] Speaker 02:
instructor position which is in the record.

[00:17:54] Speaker 02:
in 2016 and I'd like to briefly address a couple of arguments that were raised for the first time on appeal and primarily in the reply in here an oral argument and first the suggestion that the McDonnell Douglas standard does not apply it absolutely applies the suggestion from

[00:18:44] Speaker 02:
And a disability case where this court made that distinction was the France versus Johnson case where the plaintiff, I apologize, that is an age discrimination case.

[00:19:00] Speaker 02:
The plaintiff needs to present direct evidence of a discriminatory motive.

[00:19:07] Speaker 02:
And that's the scenario where this court would potentially forego the burden shifting analysis.

[00:19:17] Speaker 02:
discriminatory motive.

[00:19:20] Speaker 05:
No state suggests that there is because they just couldn't do the job and they can't they can't do it and they're the only ones who couldn't do it.

[00:19:33] Speaker 02:
And if that were the standard that in the employees who based on their disability couldn't do the essential functions of a job have have a case

[00:19:52] Speaker 02:
And it's helpful to look at the Supreme Court's and this court's guidance, the Supreme Court in Verdeen and this court in Hahn, the reminder to look at the big picture and be reminded of the ultimate issue.

[00:20:20] Speaker 02:
because of a protected characteristic.

[00:20:24] Speaker 02:
And there's no evidence of anything along those lines here.

[00:20:27] Speaker 05:
How do you distinguish CRIPE?

[00:20:30] Speaker 02:
CRIPE is very factually different from this case.

[00:20:34] Speaker 02:
And the CRIPE decision itself, it's helpful to look at footnote 12 where the paneling CRIPE was asked to follow a

[00:20:47] Speaker 02:
case, an 11th Circuit law enforcement case.

[00:20:52] Speaker 02:
And the 9th Circuit in Cripe looked at that case Holbrooke and said, the facts there are so different.

[00:21:00] Speaker 02:
The inquiry of what is an essential function is so fact specific that Holbrooke affords us no guidance.

[00:21:08] Speaker 02:
And in this case, the differences between Cripe and the facts here are so substantial.

[00:21:22] Speaker 02:
In Cripe, the city of San Jose, which had a thousand police officers, had categorically set aside only 30 of those for any officers with disabilities, and it labeled them modified duty assignments.

[00:21:36] Speaker 02:
It set up that system as essentially a gateway to all specialized assignments on the force.

[00:21:43] Speaker 02:
You had to serve on meat patrol before you could apply for any special assignment on the force.

[00:21:49] Speaker 02:
any special assignment among these thousand positions.

[00:21:53] Speaker 02:
Nothing like that has happened here.

[00:21:54] Speaker 02:
Nothing at all.

[00:21:55] Speaker 02:
The Navy has looked at one position.

[00:21:57] Speaker 02:
The police officer instructor position.

[00:22:16] Speaker 02:
maybe looked at that individual, that individual's disability compared against the essential functions, looked at the reasonable accommodation request, and indeed the fact that the four plaintiffs here had very different outcomes shows just how different this case is from CRIP.

[00:22:33] Speaker 04:
My counsel, I have a question for you.

[00:22:37] Speaker 04:
What's the government's position on whether if we ask you to

[00:22:58] Speaker 04:
if the balance got some additional thing the government was willing to give?

[00:23:10] Speaker 02:
I was a counsel of record in the district court litigation and I wouldn't, I don't recall the exact substance of the discussions.

[00:23:20] Speaker 02:
We did participate in mediation.

[00:23:22] Speaker 02:
The government is always open to

[00:23:49] Speaker 02:
the effect that the, an argument that's being made here is that the physical agility test and the requirement to attend FLETC are not functions or duties, they are qualification standards and that that puts us into a different legal analysis.

[00:24:09] Speaker 02:
That argument, that claim wasn't raised in the complaint, that argument wasn't raised in district court and that's an

[00:24:20] Speaker 02:
cited in the reply brief to the effect

[00:24:35] Speaker 02:
And that's not the case here.

[00:24:36] Speaker 02:
The qualification standard argument was not raised at all, and that's a different theory of liability with different standards and evidentiary burdens.

[00:24:48] Speaker 02:
I would point out, however, that the court doesn't need to look at it at all.

[00:24:55] Speaker 02:
There's no argument that

[00:25:11] Speaker 02:
at that.

[00:25:13] Speaker 02:
The real issue here is whether the sustainment watches are essential functions.

[00:25:17] Speaker 02:
There's no question that it is a function and it is a duty.

[00:25:22] Speaker 02:
And the Navy has put forth substantial evidence that a change was needed, that this region needed to change how its staff security operations across 10 installations.

[00:25:35] Speaker 02:
And the evidence is specific and compelling as to

[00:25:51] Speaker 02:
us is the fact that there had been active shooter incidents in San Diego and Navy Hospital.

[00:25:58] Speaker 02:
And they were fortunately false alarms, but the Navy needs readiness and needs a full force ready to respond to situations like that.

[00:26:24] Speaker 05:
affidavit of Officer Cruz.

[00:26:28] Speaker 05:
They say you don't have any studies.

[00:26:36] Speaker 05:
You don't have any extra, if you will, extrapolations that you've gone through.

[00:26:44] Speaker 05:
You're just relying on this.

[00:26:47] Speaker 05:
And they say on a disparate impact case,

[00:27:02] Speaker 05:
Understand.

[00:27:37] Speaker 02:
The concept of data and statistics, as pointed out in the briefing and as Your Honor points out, arises in the context of a disparate impact claim.

[00:27:49] Speaker 02:
There is no disparate impact claim and if there were it would be the appellant's burden to be providing data and statistics.

[00:28:01] Speaker 02:
bolstered by his testimony.

[00:28:04] Speaker 02:
And none of the testimony that the appellants rely on here calls into question a region-wide forward-looking decision that was made to change a position description in order to increase readiness across the region.

[00:28:22] Speaker 02:
This court can and should give credence to all of the testimony cited by the appellants, but it just doesn't speak to the relevant issues.

[00:28:32] Speaker 02:
testimony is from folks on the ground supervising the instructors testifying about their perception about how things had been done.

[00:28:43] Speaker 02:
None of it speaks to what changes needed to be made going forward.

[00:28:49] Speaker 02:
That's the testimony from the other witnesses.

[00:29:10] Speaker 05:
weren't involved in the determination either.

[00:29:13] Speaker 02:
That's exactly correct.

[00:29:14] Speaker 02:
And it wasn't their job to be involved.

[00:29:16] Speaker 02:
It wasn't their job to decide what changes need to be made to meet staffing challenges, to meet security challenges.

[00:29:25] Speaker 02:
And so it's not surprising that they didn't know.

[00:29:28] Speaker 02:
It's just not relevant to the issue of whether these changes were necessary, and they absolutely were necessary.

[00:29:39] Speaker 05:
Do you have any questions?

[00:30:48] Speaker ?:
just a minute it seems to me that in this particular situation the way it's laid out what the navy should do and shouldn't do and how they can do it and how they couldn't do it the union got a big

[00:31:15] Speaker 03:
But we don't know what the union said.

[00:31:17] Speaker 03:
We don't know what they negotiated.

[00:31:19] Speaker 03:
He just presented it.

[00:31:20] Speaker 03:
He got approval.

[00:31:21] Speaker 03:
We don't know what happened in between is the problem.

[00:31:24] Speaker 03:
And the other on the ground witnesses, I'm sorry, they're directly

[00:31:48] Speaker 05:
Thank you sir.