[00:00:00] Speaker 02:
And we will now hear argument in the case of Ref-El versus US Department of Homeland Security.

[00:00:28] Speaker 02:
Good morning, Your Honors and may it please the court.

[00:00:40] Speaker 00:
My name is Mateo Caballero and I represent plaintiff appellant Michael Reffeldt in this case.

[00:00:45] Speaker 00:
By the way, Mr. Reffeldt is here with us in the court today.

[00:00:49] Speaker 00:
After being relocated to a new building at work, Michael Rechfeld, a disabled research analyst at the Department of Homeland Security, was hospitalized three times in the course of just five months.

[00:01:00] Speaker 00:
Mr. Rechfeld and his doctors believed that his work environment was making him seriously ill, and they were right, as was confirmed by two reports by the Federal Occupation Health

[00:01:10] Speaker 00:
Because Mr. Eckfeld had exhausted his sick leave, he then made several reasonable accommodations requests, primarily to accommodate his severe asthma, including one, working remotely until his workspace was clean, properly cleaned, two, using the voluntary leave transfer program so that he could be on paid leave until the workspace was, again, properly cleaned.

[00:01:31] Speaker 02:
Before we get into some of that, I just want to make sure we're all on the same page.

[00:01:35] Speaker 02:
If I understand correctly, the district court

[00:01:38] Speaker 02:
dismissed counts one and three and also found two other issues time barred and I gather you are not contesting that.

[00:01:46] Speaker 00:
We're not contesting that.

[00:01:47] Speaker 02:
We're just focusing on the 45 days at count number two, right?

[00:01:52] Speaker 00:
Yes, count number two and the 45 days prior to the EEOC complaint.

[00:01:57] Speaker 00:
So the second request was using the voluntary leave transfer program so that he could be on paid leave until the workspace was cleaned, as recommended by the federal occupation on health.

[00:02:06] Speaker 00:
And finally, and this is a quote of his request, a clean office area as free of dust, irritants, toxins, and airborne allergens as possible.

[00:02:17] Speaker 00:
Again, until his office environment was cleaned and completed and verified by his doctors.

[00:02:22] Speaker 02:
Let me ask you this again and narrow to what we're talking about.

[00:02:27] Speaker 02:
One of the issues, of course, we're dealing with here is the local rules.

[00:02:31] Speaker 02:
There was basically, I gather your part, a lack of failure to follow the local rules and he only responded to nine of the 36 government statements.

[00:02:45] Speaker 02:
You claim that that is substantial compliance with the local rules?

[00:02:49] Speaker 00:
We do claim there is substantial compliance at least as to those nine statements that they actually contested by separate facts.

[00:02:57] Speaker 00:
They didn't say deny or admit, but to be fair, the government didn't do it here either.

[00:03:03] Speaker 00:
They didn't deny some of the statements.

[00:03:07] Speaker 02:
The district court was kind of put in a rough spot.

[00:03:09] Speaker 02:
You're the district court for a moment, okay?

[00:03:11] Speaker 02:
The district court gets what you gave them.

[00:03:14] Speaker 02:
How does that help anybody?

[00:03:16] Speaker 02:
They have local rules.

[00:03:18] Speaker 02:
Everybody knows what the rules are, presumably.

[00:03:21] Speaker 02:
The district court was entitled to follow its rules, right?

[00:03:23] Speaker 00:
It wasn't entitled to follow its rules, but it's not supposed to apply them arbitrarily.

[00:03:27] Speaker 00:
And here, neither party perfectly.

[00:03:29] Speaker 02:
At what point did they apply them arbitrarily?

[00:03:30] Speaker 00:
Well, neither party complied with the rules completely.

[00:03:33] Speaker 00:
And moreover, as to those nine statements, there were counter statements that were provided.

[00:03:37] Speaker 00:
And there was a general statement at the beginning that said that they were denied to extend that they were not admitted below.

[00:03:43] Speaker 04:
But you would agree, as far as the 26, that you did not contest the district court was able to properly rely on those

[00:03:53] Speaker 04:
from the defendant's concise statement of facts.

[00:03:56] Speaker 00:
You didn't contest it.

[00:03:57] Speaker 00:
That's correct, right?

[00:03:58] Speaker 00:
That is correct.

[00:03:58] Speaker 00:
Fair game.

[00:03:59] Speaker 00:
Yeah, it was fair game, but what I would argue is that even if those were deemed admitted, they should have considered the statements by counsel, the statements by plaintiff.

[00:04:09] Speaker 05:
They aren't deemed admitted.

[00:04:10] Speaker 05:
They're just deemed uncontested.

[00:04:12] Speaker 00:
Yeah, exactly.

[00:04:12] Speaker 05:
There's a difference.

[00:04:14] Speaker 00:
That's right.

[00:04:15] Speaker 00:
They were deemed uncontested.

[00:04:16] Speaker 02:
Well, actually, if I have a little bit of the record here, what the transcript shows is the following you said.

[00:04:23] Speaker 02:
The facts to which we did not provide a response are of course admitted.

[00:04:28] Speaker 02:
But of course, Judge, you're correct that we did not either admit or deny them in our response to their statement of facts.

[00:04:34] Speaker 02:
So it seems like you said, okay, we missed that and you're right.

[00:04:41] Speaker 02:
Am I missing something?

[00:04:42] Speaker 00:
Well, I think the question ultimately is whether the court viewed all the evidence in the land most favorable.

[00:04:49] Speaker 04:
But if I look at the local rule, it says, for purposes of a motion for summary judgment, material facts set forth in the movement's concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party.

[00:05:01] Speaker 04:
That's what the local rules say.

[00:05:03] Speaker 04:
It wasn't a discretionary decision of the district judge.

[00:05:06] Speaker 04:
The local rules say it's deemed admitted if it's not contested.

[00:05:09] Speaker 00:
And here there were nine counter statements, so they were contested to extend those statements were in conflict or in tension with the nine statements by the government.

[00:05:19] Speaker 00:
And as I pointed in our briefs, there wasn't technical compliance on the part of the government either.

[00:05:26] Speaker 05:
Can we just assume that you failed to comply with the rule and that the district court under the local rules for purposes of summary judgment only, that's probably what I should have said, for purposes of summary judgment only those uncontested facts were deemed admitted as a district court judge did the analysis on the motions.

[00:05:52] Speaker 05:
But let me ask you this.

[00:05:54] Speaker 05:
Even given those, where was the error?

[00:05:58] Speaker 05:
What are you really complaining about?

[00:06:01] Speaker 00:
Well, ultimately the error is that the court didn't view the evidence in the light most favorable to the non-moving party here, and it ignored a number of genuine disputes of material fact.

[00:06:16] Speaker 02:
But counsel, with respect.

[00:06:17] Speaker 02:
Let's take the first point about working remotely.

[00:06:22] Speaker 02:
The government made it clear that your client was dealing with some confidential, in some cases very confidential information that could not be dealt with off premises.

[00:06:32] Speaker 02:
And isn't that a perfectly logical answer?

[00:06:35] Speaker 02:
What's your comeback on that?

[00:06:37] Speaker 00:
Well, the comeback is that that's contested, Your Honor.

[00:06:41] Speaker 00:
The testimony by my client is that he did not work- Your client is an expert on what's confidential and what's secret?

[00:06:48] Speaker 00:
No, but he knows when he's working on classified information.

[00:06:51] Speaker 02:
He, you know, he worked ultimately- He recognizes, I think in the record, that he was working on classified confidential information.

[00:06:58] Speaker 02:
He said, I want to work remotely.

[00:07:00] Speaker 02:
The supervisor said, you know,

[00:07:02] Speaker 02:
I'd like to help you, Fran, but we can't do that because you're working on confidential information and our rules don't permit that.

[00:07:07] Speaker 02:
So what's the matter with that?

[00:07:08] Speaker 00:
Well, the response, again, is that we actually contest that.

[00:07:11] Speaker 00:
That should go to a jury whether he, in fact, if that was, in fact, an essential.

[00:07:14] Speaker 02:
It doesn't go to a jury.

[00:07:14] Speaker 02:
That makes no sense.

[00:07:16] Speaker 02:
That's a reasonably contested fact.

[00:07:20] Speaker 00:
If my client's experience working there for many years was that he didn't work with confidential information and he could do his work remotely, and here the government hasn't provided other than the word of the supervisors.

[00:07:32] Speaker 02:
What about your admissions, your failure to contest things?

[00:07:35] Speaker 02:
What does that put you?

[00:07:37] Speaker 00:
Well, again, the argument that we make is that the court should have viewed the entire evidence in the light most favorable to... So if there's a... Even if the words were admitted.

[00:07:47] Speaker 02:
...allegations and you don't respond and under the local rules they're deemed admitted, you're saying notwithstanding that fact,

[00:07:53] Speaker 02:
You still have to basically view them in the light most favorable to the plaintiff in this case, and therefore it's a jury question.

[00:08:01] Speaker 02:
Is that what you're saying?

[00:08:02] Speaker 00:
Yes.

[00:08:02] Speaker 00:
That's what we're saying, that they can be admitted, but you still have to look at the evidence in the light most favorable to plaintiff.

[00:08:07] Speaker 02:
Well, that's an unusual cleaning requirement.

[00:08:10] Speaker 02:
Do you have any case law that would back that up?

[00:08:12] Speaker 00:
Well, we cite in the briefs a number of cases that say that ultimately the court still has to review the record, even if when... Even when a case, even though where the fact is admitted.

[00:08:22] Speaker 02:
Even when facts are in... Let's take the summary judgment.

[00:08:24] Speaker 02:
Let's say that you claim X and the government says Y.

[00:08:32] Speaker 02:
and then you exchange back and forth under the local rules and basically you don't respond to any of the government's allegations in terms of providing evidence.

[00:08:42] Speaker 02:
You lose, don't you?

[00:08:43] Speaker 00:
You do, but that's not the case here.

[00:08:45] Speaker 00:
The case here was that he, in fact, controverted nine of the statements, and he provided his own counterstatement.

[00:08:51] Speaker 00:
So it wasn't that the record was only the statements provided by the defendant here.

[00:08:56] Speaker 00:
In fact, they were statements by plaintiff, and the court was required to view the entire record in the light most favorable.

[00:09:03] Speaker 04:
Mr. Rayfeld concede that he did require a secure computer.

[00:09:09] Speaker 04:
If I look at his first reasonable accommodation request when he says I'd like to you know see if I can work from home or at a newer building located at the same Ala Moana address which would give me reasonable access to co-workers and security computers when needed.

[00:09:25] Speaker 04:
So he was conceding

[00:09:27] Speaker 04:
that he needed at least secure computers for doing his job.

[00:09:31] Speaker 04:
So earlier when you were saying, oh, he can contest that the documents or information he dealt with was confidential, doesn't he sort of concede in this letter, this reasonable accommodation request form, that he does require some security because of the confidentiality of the materials that he worked with?

[00:09:49] Speaker 00:
Sure.

[00:09:49] Speaker 00:
And my understanding is that there are ways of having that security remotely.

[00:09:52] Speaker 00:
It's obviously not part of the record.

[00:09:53] Speaker 00:
But you can have secure computers and work sometimes on sensitive matters.

[00:09:57] Speaker 00:
you know, not in a government facility.

[00:10:01] Speaker 05:
Could we assume that further argument that that request was not reasonable?

[00:10:11] Speaker 05:
Mm-hmm.

[00:10:11] Speaker 05:
All right, so that gets us to his two other requests.

[00:10:14] Speaker 00:
Yes.

[00:10:14] Speaker 00:
Right?

[00:10:15] Speaker 00:
Yes.

[00:10:15] Speaker 05:
For accommodation.

[00:10:16] Speaker 05:
One, he wanted to go to a new location, and two, he wanted the voluntary

[00:10:20] Speaker 05:
leave transfer program.

[00:10:22] Speaker 00:
Yes, thank you, Your Honor.

[00:10:23] Speaker 00:
And even if we lose on that first request, because as Judge Pais mentioned, it's not unreasonable, you still have the voluntary leave transfer program request.

[00:10:34] Speaker 00:
And here, they didn't even answer.

[00:10:36] Speaker 00:
And there are emails between management saying, essentially, that they didn't believe he was sick, that this was self-imposed.

[00:10:42] Speaker 00:
And they were finding for reasons to deny it.

[00:10:44] Speaker 05:
And so the question that, you know, the general issue of material fact here is whether the government acted in good faith in processing that.

[00:10:58] Speaker 05:
and they submitted their declaration, I get from the woman's name.

[00:11:02] Speaker 02:
Ms.

[00:11:03] Speaker 05:
Garcia said, if you have unused sick leave or I guess leave time, then you're not eligible to participate in the voluntary leave transfer program.

[00:11:22] Speaker 05:
But there's some other evidence in the record that suggests that that was not a requirement.

[00:11:28] Speaker 05:
and that the policy statement didn't require it.

[00:11:32] Speaker 00:
Yeah, that's right, Your Honor.

[00:11:33] Speaker 00:
And so we're saying that that's a disputed issue of material fact as to whether that policy existed, whether it was consistently applied, and also whether they could have made a reasonable modification here.

[00:11:43] Speaker 02:
But didn't we reject that argument in DUTTA versus State Farm Mutual Auto Insurance Company?

[00:11:48] Speaker 00:
No, I don't think so, Your Honor.

[00:11:51] Speaker 00:
You can modify, you know, neutral policies.

[00:11:54] Speaker 00:
In fact, it's done all the time.

[00:11:55] Speaker 00:
I think the exception is in Barnett, U.S.

[00:11:58] Speaker 00:
Airways, where you have, sorry, in Barnett, where you have a seniority policy, and that has taken precedent.

[00:12:05] Speaker 00:
But when it's just a regular policy, like, you know, the voluntary transfer program policy, I don't see why they wouldn't be able to just modify it.

[00:12:12] Speaker 02:
Do you want to save any of your time?

[00:12:14] Speaker 00:
Yes, I would like to reserve three minutes if that's okay.

[00:12:17] Speaker 00:
But to Judge Parrott's question, just to quickly address the third issue, is that, you know, Mr. Redfield disputes that management didn't know that the annex was not an effective accommodation to his asthma.

[00:12:32] Speaker 02:
But your client didn't complain.

[00:12:34] Speaker 02:
He went to the new building, didn't say there was any new problem, right?

[00:12:38] Speaker 00:
No, he did complain.

[00:12:39] Speaker 00:
He complained to his direct supervisor.

[00:12:42] Speaker 02:
After he'd been relocated elsewhere.

[00:12:44] Speaker 00:
No, no, while he was there, he complained to... Put that in the record, please.

[00:12:49] Speaker 00:
Yes, that is on the record.

[00:12:52] Speaker 00:
So it's on... One second.

[00:12:59] Speaker 00:
It's on 2ER255, 3ER460 through 72.

[00:13:04] Speaker 00:
Oh, no, sorry.

[00:13:06] Speaker 00:
I apologize.

[00:13:07] Speaker 00:
I got those wrong.

[00:13:13] Speaker 00:
Well, if I may, in my rebuttal, I'll provide the quote.

[00:13:17] Speaker 05:
Go ahead, Judge Coe.

[00:13:18] Speaker 04:
But his doctor, Dr. Goshima, said that his symptoms subsided after he moved to the annex, right?

[00:13:24] Speaker 00:
Yes.

[00:13:24] Speaker 00:
I mean, no.

[00:13:25] Speaker 00:
He didn't say after he moved to the annex.

[00:13:27] Speaker 00:
If you review that letter, there are a couple of things about that letter, Your Honor.

[00:13:30] Speaker 00:
The first one is that it was submitted in support of the workers' compensation claim

[00:13:35] Speaker 00:
that plaintiff had made at the time that was initially denied.

[00:13:39] Speaker 00:
And if you review the letter, he was saying, you know, during the time he was on leave, his symptoms subsided.

[00:13:48] Speaker 00:
But the last time that the doctor saw him at that time was in July, which was before he moved to the annex.

[00:13:54] Speaker 00:
And there was a specialist who saw him in September that was just after he moved to the annex.

[00:13:59] Speaker 00:
So really, he wasn't opining as to what had happened during the annex or whether his symptoms were better or worse.

[00:14:04] Speaker 02:
But did you dispute all of that?

[00:14:05] Speaker 02:
This is another one of these elements that by failure to dispute it, you may have admitted it.

[00:14:12] Speaker 00:
No, it was disputed, Your Honor.

[00:14:14] Speaker 00:
There were statements on the part.

[00:14:16] Speaker 02:
What about 3ER416?

[00:14:20] Speaker 00:
I don't have it.

[00:14:20] Speaker 00:
I'll let you look at it later.

[00:14:22] Speaker 00:
Yeah.

[00:14:22] Speaker 00:
Okay.

[00:14:22] Speaker 00:
I'll reserve the rest of my time.

[00:14:23] Speaker 00:
Thank you.

[00:14:26] Speaker 02:
All right.

[00:14:27] Speaker 02:
Mr. Ching, please.

[00:14:31] Speaker 01:
May I please the court?

[00:14:33] Speaker 01:
Good morning.

[00:14:35] Speaker 01:
I am Assistant United States Attorney Edrick Ching, appearing on behalf of Defendant-Appellee Alejandro Mayorkas, Secretary of the United States Department of Homeland Security.

[00:14:49] Speaker 01:
I just want to kind of address some of the comments made by

[00:14:53] Speaker 01:
council before I go into the meat of my argument, but with regard to Dr. Gosheema's November 9, 2012 letter to management, council indicated that Dr. Gosheema said,

[00:15:11] Speaker 01:
that his symptoms subsided while he was on leave and somehow before he went into the annex.

[00:15:16] Speaker 01:
But I quote directly, Dr. Goshima said, this is ER 624, it is my opinion that because the symptoms have subsided in the absence of direct exposure to these toxins, Mr. Rayfeld cannot return to the same work environment until that area is cleaned.

[00:15:35] Speaker 01:
This letter was written approximately or almost three months after

[00:15:41] Speaker 01:
Mr. Ray felt was transferred to the annex.

[00:15:46] Speaker 01:
So this, I mean, this letter basically told management that, you know, he's doing better in the annex and everything's okay.

[00:15:54] Speaker 01:
And then when you look at the timeline, the next communication between management

[00:16:01] Speaker 01:
and Council is in February 2013.

[00:16:05] Speaker 01:
And then at that point, in the middle of February 2013, Mr. Wills informs Council that he is ready.

[00:16:15] Speaker 01:
He suggested that Mr. Rayfeld return back to his original office, because at the end of December, all the cleaning recommendations were fulfilled, and he was ready for him to go back.

[00:16:28] Speaker 01:
At that point,

[00:16:30] Speaker 01:
Council for Mr. Rayfeld did not indicate.

[00:16:33] Speaker 01:
Mr. Wells, my client is sick.

[00:16:36] Speaker 04:
That letter says Mr. Rayfeld cannot return to that same work environment until the area is deemed non-toxic to him.

[00:16:43] Speaker 04:
So if that's referring to the annex, isn't Dr. Gushima saying Mr. Rayfeld cannot return there?

[00:16:49] Speaker 01:
Yes, I think what he's saying is the same work environment would be the original 595 building.

[00:16:57] Speaker 01:
So at that point that this letter was written, Mr. Ray felt was in the annex.

[00:17:02] Speaker 01:
And at that point, the management was still having the cleaning activities being taken place with regard to the original 595.

[00:17:11] Speaker 02:
But you couldn't return to the original space that he had come from.

[00:17:15] Speaker 02:
It wasn't talking about the annex, you were talking about the original space.

[00:17:17] Speaker 01:
Yes.

[00:17:18] Speaker 01:
Yes, and in December, and I think it was December 31st, 2012, a representative of Federal Occupational Health wrote a letter saying that all the cleaning recommendations have been fulfilled, and then about... Is that at the annex?

[00:17:33] Speaker 01:
No, that was at 595.

[00:17:35] Speaker 01:
So at that point, he's at the annex, and they're cleaning 595.

[00:17:39] Speaker 01:
So,

[00:17:40] Speaker 01:
That was at the end of December, and by the middle of January, Mr. Rafe Feld's immediate supervisor, Mr. Recision, asked Mr. Wills, can we have him go back to his original office at 595?

[00:17:56] Speaker 01:
Then at that point, Mr. Wills reached out to Council in the middle of February,

[00:18:04] Speaker 01:
2013, Mr. Smith, who is Mr. Rayfield's counsel, Mr. Smith, and said, is it time for him to go back to his original office?

[00:18:16] Speaker 01:
And then Mr. Smith, instead of, there's no comments about, oh, my client is sick.

[00:18:21] Speaker 01:
You got to get him out of there as soon as possible.

[00:18:24] Speaker 05:
So... I knew he was sick.

[00:18:27] Speaker 01:
At that point, there was no comments that were made to management, to Mr. Wills about Mr. Rayfeld not feeling good in the annex.

[00:18:36] Speaker 01:
And if you take a look at the... Well, you just confused me there.

[00:18:43] Speaker 01:
Yes.

[00:18:44] Speaker 05:
You said the annex.

[00:18:45] Speaker 05:
Yes.

[00:18:45] Speaker 05:
But they wanted him to go back to the original location.

[00:18:48] Speaker 01:
Yes, they wanted him to go back.

[00:18:49] Speaker 01:
Maybe I can... Yes.

[00:18:51] Speaker 02:
explain what I think, which I think maybe answers my colleague's question.

[00:18:54] Speaker 02:
But my understanding is he was moved to the annex because of his original complaint.

[00:18:59] Speaker 02:
Everybody agreed he was sick there.

[00:19:01] Speaker 02:
So he went to the annex.

[00:19:03] Speaker 02:
He did not during the time period, he was at the annex complaining about his health because of being there.

[00:19:09] Speaker 02:
Then they did the cleanup in the original space and moved him back there.

[00:19:15] Speaker 02:
But all of the cleanup that supposedly was necessary was done in the old space.

[00:19:21] Speaker 02:
Did I understand it correctly?

[00:19:22] Speaker 01:
Yes, Your Honor.

[00:19:23] Speaker 01:
Okay.

[00:19:23] Speaker 01:
Yes, and it's a little confusing because the old space and the temporary space were actually both at the 595 campus.

[00:19:30] Speaker 01:
And, you know, for the lack of a better term, I'm referring to the old space as just the 595 building.

[00:19:38] Speaker 05:
How long was he in the annex?

[00:19:40] Speaker 01:
He was in the annex from, I believe, there's a little question.

[00:19:43] Speaker 01:
I believe he went there on August 20th, 2012, and then he was moved to, he returned back to his original office on March 4th, 2013.

[00:19:56] Speaker 01:
So that would be approximately six and a half months.

[00:20:00] Speaker 01:
And during this time, Mr. Rayfeld during his deposition specifically was asked

[00:20:08] Speaker 01:
under oath, did you ever complain about your asthma worsening while at the annex?"

[00:20:12] Speaker 01:
And he said no.

[00:20:15] Speaker 05:
Now in the opening brief and reply brief... I thought he also sort of tabbed that by saying he was concerned about retaliation.

[00:20:28] Speaker 05:
Is that where that comes in?

[00:20:29] Speaker 01:
Yes, so in this case, Your Honor,

[00:20:33] Speaker 01:
Mr. Rayfeld, in his brief, raises the retaliation in this case.

[00:20:38] Speaker 05:
However... I'm not so much considering that as a legal argument because it really wasn't shaped.

[00:20:42] Speaker 05:
I'm just trying to recall what he had said about why he didn't raise the issue of his condition while he was in the annex.

[00:20:51] Speaker 05:
Yes, I mean, he claimed... He may have thought that, you know, if I keep pressing this, they're going to just get rid of me.

[00:20:57] Speaker 01:
Yes, I mean, I believe there's a claim out there that he was perhaps a little scared to bring it up, you know, as we discussed just now.

[00:21:04] Speaker 01:
You know, there is no retaliation claim.

[00:21:06] Speaker 01:
However, when you look at the whole timeline, you know, there was an interactive process which started at the beginning of July through the time that he was moved to the annex.

[00:21:16] Speaker 01:
I thought, you know, if you look at it, there was direct communication between the employer and the employee via his representatives.

[00:21:24] Speaker 01:
Yes.

[00:21:25] Speaker 05:
Just to follow up on this annex situation,

[00:21:27] Speaker 05:
What did they do to make sure that the annex was a clean environment for him?

[00:21:35] Speaker 01:
Well, in the record, Mr. Rayfeld's second-level supervisor went to go and clean the area before he got there.

[00:21:45] Speaker 01:
And Mr. Rayfeld, I believe, actually inspected those offices before he started.

[00:21:51] Speaker 01:
And I believe that the second-level supervisor also inspected those offices.

[00:21:57] Speaker 01:
And I'm assuming that there's also regular cleaning.

[00:21:59] Speaker 01:
Very nice and clean.

[00:22:00] Speaker 01:
Yes.

[00:22:01] Speaker 01:
So she cleaned it.

[00:22:03] Speaker 05:
Not the cleaning crew.

[00:22:06] Speaker 04:
Yes, the second level supervisor also went in there and cleaned the building.

[00:22:20] Speaker 01:
I think during his stay, in the record, there's evidence that people complained that it was dirty, and that Mr. Williams responded to that by saying he would take care of it and have it cleaned.

[00:22:33] Speaker 01:
What we don't have in this case is, just because something is dirty, I think there's an interplay between it being dirty and affecting Mr. Rayfeld's health.

[00:22:43] Speaker 04:
Like, for example, just to kind of...

[00:22:53] Speaker 01:
For an accommodation to be reasonable, it has to allow Mr. Rayfeld to perform the duties of his job.

[00:23:00] Speaker 01:
And there's no, for example, there's no evidence in the record that while he was in the annex that he took extended leave because he was feeling ill.

[00:23:08] Speaker 01:
There's no evidence that, you know, he went to the doctor and his doctor told Mr. Wills that, you know, that Mr. Rayfeld was ill.

[00:23:16] Speaker 01:
When you look at the record, between November 9, 2012, after that,

[00:23:23] Speaker 01:
There is nothing in the record from Dr. Goshima, who was very involved with the actions in the summer of 2012 to inform management, or there's nothing in the record to show that counsel contacted management to tell them that Mr. Rayfeld is sick, to tell management that Mr. Rayfeld is having a hard time doing his job duties, and also to tell management that he needs

[00:23:53] Speaker 01:
he needs an accommodation and a move to a different area.

[00:23:56] Speaker 05:
For example, in... Well, they knew that that was it.

[00:24:00] Speaker 05:
As Judge Koh said, maybe I'm being too strong, but there certainly was some questions about as to whether or not it was clean, the annex, for his condition.

[00:24:10] Speaker 01:
Well, there's

[00:24:12] Speaker 01:
I think there was complaints about it being dirty, but there was no evidence that it affected his health.

[00:24:18] Speaker 01:
And one of the things that Mr. Rayfeld claims is they raised an OSHA violation.

[00:24:25] Speaker 01:
However, the OSHA violation was issued in September 2013, which was approximately six months after Mr. Rayfeld left the annex.

[00:24:34] Speaker 01:
And the OSHA violation involved events that occurred in April 2013, which is one month after Mr. Rayfeld left the annex.

[00:24:42] Speaker 05:
Could we switch for a moment to the voluntary leave transfer program?

[00:24:47] Speaker 01:
Yes.

[00:24:48] Speaker 05:
Did his supervisors or those in charge ever respond to his application?

[00:24:55] Speaker 01:
A formal response?

[00:24:57] Speaker 01:
There's an email in the evidence here that Mr. Wills says that they were going to inform Mr. Rayfelt of the decision, but there's nothing in there to show that he was actually informed about it.

[00:25:11] Speaker 01:
I'm not sure, but I think, there's nothing in evidence to say why not, but- How could you say that's acting in good faith?

[00:25:21] Speaker 05:
Because at that point- Doesn't that create a factual dispute about whether or not they acted in good faith?

[00:25:27] Speaker 01:
No, Your Honor.

[00:25:28] Speaker 05:
Well, first of all, with regard to reason- They really didn't want to grant him any leave, correct?

[00:25:34] Speaker 01:
Your Honor, at that time, on August 10, 2012,

[00:25:38] Speaker 01:
Mr. Ray felt was already being reasonably accommodated because he was taking either annual or sick leave.

[00:25:44] Speaker 01:
And that's in the record, I believe, between ER 49 and 56.

[00:25:49] Speaker 01:
And seven days later, it was approved for him to be moved to the annex, which they thought was a newer building.

[00:25:58] Speaker 01:
So at that point,

[00:26:01] Speaker 01:
Two things.

[00:26:03] Speaker 01:
He had a substantial amount of leave, so he was not eligible for the voluntary leave transfer program.

[00:26:08] Speaker 05:
Where is that point in the policy or established?

[00:26:13] Speaker 05:
There seems to be a little dispute about whether or not that was an essential requirement.

[00:26:18] Speaker 05:
How much time did he actually have, according to your record, was it hours, days, months?

[00:26:24] Speaker 01:
Yes, I believe he had, Your Honor, I got it right here, he had approximately

[00:26:34] Speaker 01:
I'm sorry, he had 100, I'm looking at ER 6-12, he had 146 hours of annual leave and nine hours of sick leave at that time.

[00:26:44] Speaker 02:
So pursue- How many hours again?

[00:26:47] Speaker 01:
146 hours of annual leave and nine hours of sick leave.

[00:26:52] Speaker 05:
And this is at- And how much time was he asking on?

[00:26:56] Speaker 01:
At that point, he had been, I believe he had been taking off since the middle of June because he was ill.

[00:27:04] Speaker 01:
And pursuant to 5 CFR 630.910, a person is not eligible for the voluntary leave transfer program until he or she exhausts all of their leave balance.

[00:27:16] Speaker 02:
So from the government's perspective, and in response to my colleague's question, perhaps they didn't communicate it to him, but the law nevertheless provided that when they did communicate to him, he was not eligible.

[00:27:28] Speaker 01:
Is that correct?

[00:27:29] Speaker 01:
Yes.

[00:27:30] Speaker 05:
And where's that requirement embedded?

[00:27:32] Speaker 01:
Which the requirement that?

[00:27:34] Speaker 02:
He said it was in the regulations.

[00:27:36] Speaker 05:
He said in which, you're talking with the CFRs?

[00:27:38] Speaker 01:
Yes, 5 CFR 630.910 or dash.

[00:27:44] Speaker 01:
It's in our answering brief, in page 13, your honor.

[00:27:49] Speaker 02:
So there may have been a failure to communicate, but no matter, he wasn't eligible.

[00:27:54] Speaker 01:
Yes, and going back to the Zikovitch case, oh sorry.

[00:27:59] Speaker 04:
for that voluntary leave transfer program.

[00:28:01] Speaker 04:
It's just the declaration of Ms.

[00:28:03] Speaker 04:
Garcia, right, that you submitted on reply or you're saying there's a separate reg that also provides that same?

[00:28:10] Speaker 01:
We have the reg that I just, the 5 CFR and also the fact that if you look at ER 612 on his the voluntary leave transfer program application, he indicates on there that he has 146 hours of annual leave and 9 hours of sick leave.

[00:28:26] Speaker 02:
I guess that's my understanding is that

[00:28:29] Speaker 02:
Maybe they didn't communicate it to him, but had they communicated it to him under the 5 CFR regulation, he had a number of hours that made it so he was not eligible for what he was seeking.

[00:28:44] Speaker 02:
Is that right?

[00:28:45] Speaker 01:
Yes.

[00:28:46] Speaker 01:
And in this case, there's no evidence that once he moved to the annex, that he took enough leave to exhaust it anyway.

[00:28:52] Speaker 04:
other than the Lena Garcia declaration.

[00:28:55] Speaker 04:
I don't recall the 5 CFR being actually submitted to the District Court, was it?

[00:29:01] Speaker 04:
Or given to Mr. Rayfeld, right?

[00:29:03] Speaker 04:
I thought with regard to this voluntary leave transfer program, the only evidence that he would be ineligible is this Lena Garcia declaration.

[00:29:11] Speaker 04:
Is that not right?

[00:29:12] Speaker 01:
Your Honour, I believe we submitted it to the District Court in our memorandum in support of our motion for summary judgment, but I'm not completely sure.

[00:29:19] Speaker 03:
You mean the CFR?

[00:29:19] Speaker 01:
The CFR, yes.

[00:29:21] Speaker 01:
Yes.

[00:29:22] Speaker 01:
I know I ran over my time.

[00:29:24] Speaker 01:
I'd like to make one last comment.

[00:29:26] Speaker 01:
I think the overlying theme of this case from the government's perspective is the government is required to make a reasonable accommodation and pursuant to the Zivkovic case, that the defendant is, I mean, Mr. Rayfeldt is entitled to a reasonable accommodation, not an accommodation of his choice.

[00:29:45] Speaker 02:
Okay.

[00:29:45] Speaker 01:
Thank you.

[00:29:46] Speaker 02:
Thank you.

[00:29:49] Speaker 00:
Thank you, Your Honors.

[00:29:51] Speaker 00:
I just would like to make two quick points.

[00:29:53] Speaker 00:
The first one is that a careful review of the letter by Dr. Gochima, again, shows that it was submitted in support of the Office of Workers' Compensation claim that was pending at the time.

[00:30:05] Speaker 00:
And there is no mention of the annex in that letter whatsoever.

[00:30:08] Speaker 00:
The last time Dr. Gochima had seen him was in July before he was moved to the annex.

[00:30:12] Speaker 00:
And when he's referring to

[00:30:14] Speaker 00:
him getting better in the absence of those particles in the air.

[00:30:19] Speaker 00:
He's referring at the time he was on leave back in July.

[00:30:25] Speaker 02:
shall I say overridden by the failure to dispute the facts, is that correct?

[00:30:29] Speaker 00:
That's correct.

[00:30:30] Speaker 00:
Yeah, that's correct.

[00:30:31] Speaker 00:
I think the court has to look at the actual evidence, view it in the light most favorable to an unruly party.

[00:30:37] Speaker 00:
And at the very least, that's an issue for the finder of fact, how to read that letter.

[00:30:43] Speaker 00:
The other point that I wanted to quickly make is that the voluntary leave transfer application was actually resubmitted after he was in the annex.

[00:30:52] Speaker 00:
And I think that's a very important fact here, because it shows that he wasn't satisfied with the proposed accommodation here, and that the annex was not a good environment for him.

[00:31:03] Speaker 00:
And so he submitted that on September 14th, and that's in 2ER 171.

[00:31:14] Speaker 00:
The last thing I'll say is that the whole purpose of the voluntary leave transfer application is for people before they run out of time.

[00:31:23] Speaker 00:
It gets approved, and normally it's sent to a steering committee who makes a determination.

[00:31:27] Speaker 00:
And here it would have made a difference if they had told Mr. Raffel, look, here's the rule, here's the CFR, you can reapply later.

[00:31:34] Speaker 00:
But he wasn't told that.

[00:31:35] Speaker 05:
He could have just exhausted his- Excuse me?

[00:31:38] Speaker 05:
Never mind, I'm just thinking of it.

[00:31:40] Speaker 00:
So if they had told him at the time, you know, you need to exhaust your time, perhaps he could have decided, you know what, I'm just going to stay on paid leave, exhaust my time, reapply, and then wait until... Let me just ask you one question.

[00:31:53] Speaker 05:
So what's your understanding of 5 CFR section 630.910?

[00:31:57] Speaker 05:
I guess I missed that one.

[00:31:58] Speaker 05:
I looked at the government's brief.

[00:32:00] Speaker 00:
No, my understanding is that it is not clear from the CFR that in fact he has to completely exhaust his leave.

[00:32:09] Speaker 00:
And based on the ER, we submit that many people apply before they have exhausted their leave in anticipation of exhausting it.

[00:32:17] Speaker 05:
I thought the communications between the officials or his supervisor was that he didn't suffer, he wasn't dealing with an emergency medical situation, therefore he wasn't eligible for leave.

[00:32:28] Speaker 00:
And we would say that that's disputed, of course, and that, in fact, he was in a situation where it was an emergency medical situation.

[00:32:35] Speaker 00:
Okay.

[00:32:36] Speaker 00:
Other questions about my colleague?

[00:32:37] Speaker 02:
No, thank you.

[00:32:38] Speaker 02:
All right.

[00:32:38] Speaker 02:
Thanks to both counsel for your argument.

[00:32:40] Speaker 02:
The case of Ray Health versus U.S.

[00:32:43] Speaker 02:
Department of Homeland Security is submitted.