[00:00:00] Speaker 04:
And we appreciate all the arguments in the case.

[00:00:05] Speaker 04:
We'll move on to the final case set for argument today, Jeffords versus Navex Global.

[00:00:11] Speaker 04:
That's case number 23-35271.

[00:00:58] Speaker 04:
Mr. Carter, you may proceed.

[00:01:01] Speaker 03:
May it please the Court, good morning.

[00:01:02] Speaker 03:
May I reserve four minutes for my rebuttal?

[00:01:05] Speaker 03:
Adam Carter with the Employment Law Group on behalf of Valerie Jeffords.

[00:01:09] Speaker 03:
This is an ADA case, and there was no flexible interactive process between my client and NAVAX.

[00:01:16] Speaker 03:
That's conceded.

[00:01:17] Speaker 03:
There was no job description, importantly, that was used or made available either to my client or to her doctors, against which they could map.

[00:01:27] Speaker 04:
her abilities.

[00:01:29] Speaker 04:
Okay, so let's accept both of those premises as true.

[00:01:33] Speaker 04:
Her doctor submits a statement that says she can't work until June or July, two months later, after the FMLA leave had expired, right?

[00:01:45] Speaker 03:
Right.

[00:01:46] Speaker 03:
The February 28th is what your honor... If... Sorry, the April 28th.

[00:01:50] Speaker 04:
April 28th, and said she can't come back till June.

[00:01:53] Speaker 04:
June 17th.

[00:01:55] Speaker 04:
What basis did the doctor have to write that statement if your position is the doctor didn't even know what the essential job functions were?

[00:02:05] Speaker 03:
Well, that's right.

[00:02:06] Speaker 03:
Navex only gave the doctors the forms and asked the question that Navex wanted to ask.

[00:02:13] Speaker 03:
And our question for the court is, can an employer simply

[00:02:18] Speaker 03:
fail to engage in the interactive process, which this Court has said is the heart of the ADA, can they just decide... I thought the interactive process was about reasonable accommodations.

[00:02:30] Speaker 03:
The interactive process is about two things.

[00:02:33] Speaker 03:
Gould's concurrence in Barnett makes it very clear.

[00:02:36] Speaker 03:
The request for reasonable accommodation is for the employee.

[00:02:43] Speaker 03:
The whole question of undue hardship is for the employer.

[00:02:47] Speaker 03:
Those parties have differing information with respect to the issue at hand.

[00:02:53] Speaker 03:
So, for example, whether an employee can or can't lift

[00:02:57] Speaker 03:
10 pounds, the employees in the best position to know that, whether an employer has other jobs or other positions or economic hardship, or in this case, COVID-19.

[00:03:11] Speaker 04:
And I may have this backwards, so correct me, but I would have thought that the plaintiff, in this case your client,

[00:03:23] Speaker 04:
would have had to come in and ask for reasonable accommodations, and then the interactive process starts.

[00:03:28] Speaker 03:
No, Barnett makes clear that two things, either you can request it, that makes it easy, that didn't happen here, but the employer can know of the client's need for

[00:03:41] Speaker 03:
has disabilities and of their need for accommodations and that triggers the interactive process.

[00:03:47] Speaker 04:
So what did the client know?

[00:03:50] Speaker 04:
What did the employer know?

[00:03:52] Speaker 04:
Sorry, what did the employer know about what reasonable accommodations could have been done or whatnot?

[00:03:58] Speaker 03:
Excellent question.

[00:03:59] Speaker 03:
So what we have is we have the traumatic brain injury in December 2018.

[00:04:04] Speaker 03:
then my client is working for 11 months on the job and gets promoted to senior vice president and doing well.

[00:04:13] Speaker 03:
But then in the fall, December timeframe, November, December timeframe of 2019, starting to be foggy, missing a day or two here and there and decides I really need to address this and then goes and takes four weeks of leave.

[00:04:28] Speaker 03:
That four weeks turns into eight weeks, eight weeks turns into 12 weeks.

[00:04:31] Speaker 02:
But that's not unusual with traumatic brain injuries, is it?

[00:04:34] Speaker 02:
It's not.

[00:04:34] Speaker 02:
Yeah.

[00:04:35] Speaker 02:
I mean, the symptomology can take up to two years to reveal it.

[00:04:40] Speaker 03:
And indeed, that's the case here.

[00:04:41] Speaker 03:
And to your honor's earlier point, this is a big case to my client.

[00:04:46] Speaker 03:
She was making 300K, and she had a 10-year-old daughter.

[00:04:49] Speaker 03:
She's a single mom.

[00:04:50] Speaker 03:
And if she's out of a job as of a given day because her doctors don't answer the question right or fill out the form right,

[00:04:58] Speaker 03:
She's out of out of luck.

[00:05:00] Speaker 03:
And here's the point.

[00:05:02] Speaker 03:
And I don't run from those those forms.

[00:05:06] Speaker 03:
The doctor's interest is in trying to get her the leave.

[00:05:09] Speaker 04:
So she didn't have any she didn't have any participation in filling out the forms.

[00:05:14] Speaker 03:
She told her doctors, I need the form filled out, yes.

[00:05:19] Speaker 03:
There's evidence that on the April 28th, this is after termination, that she went and had it filled out, filled in the form, and then had her doctor sign it.

[00:05:30] Speaker 03:
He testified that he agreed with the points that were made in it.

[00:05:34] Speaker 03:
And the essence of this is the date on which all of this should have happened is on March 16th, the day that she's terminated.

[00:05:44] Speaker 03:
At 8am, they're on the phone terminating her and not engaging in the interactive process.

[00:05:50] Speaker 02:
But if the employer had been told by the doctors that she can't return to work on March 16 and then later learned it wasn't going to be any earlier than June, for ADA purposes, doesn't that render her not a qualified individual sufficient to trigger the protections of the ADA?

[00:06:13] Speaker 03:
No, sir, our argument is that additional leave beyond the 12 weeks is an accommodation.

[00:06:19] Speaker 03:
This court said that in Humphrey.

[00:06:22] Speaker 03:
Humphrey, yes.

[00:06:24] Speaker 03:
Then she's requesting.

[00:06:26] Speaker 03:
But to what degree?

[00:06:29] Speaker 03:
Right.

[00:06:30] Speaker 03:
My friend on the other side makes it seem as though this was some indefinite leave that she was requesting.

[00:06:36] Speaker 04:
Well, it was two months.

[00:06:37] Speaker 04:
I mean, you're saying the ADA inherently

[00:06:41] Speaker 03:
extends the protections of the FMLA?

[00:06:45] Speaker 03:
No, I'm not saying that.

[00:06:45] Speaker 03:
I'm saying that these are done separately.

[00:06:48] Speaker 03:
The FMLA is its own 12 weeks.

[00:06:52] Speaker 03:
Here, we're talking about an interactive process that everyone agrees never took place and that additional leave could have been a solution to the problem.

[00:07:03] Speaker 03:
Could it have been two weeks?

[00:07:05] Speaker 03:
Could it have been three weeks?

[00:07:06] Speaker 03:
Could she have ramped up, started off part-time?

[00:07:09] Speaker 04:
We're talking about whether she... I would give you that, except for the fact that you have a doctor's statement that says she can't do any work for two months.

[00:07:19] Speaker 04:
Your Honor... I don't think the employer's thinking, oh, we need to pressure test the doctor.

[00:07:23] Speaker 04:
Maybe she really can come back.

[00:07:25] Speaker 04:
Maybe, you know, we better call her and see whether she really can come back.

[00:07:29] Speaker 03:
Your honor, the whole question is, what does come back mean as of March 16th?

[00:07:34] Speaker 03:
We were all working in our pajamas at home on March 16th, 2020.

[00:07:39] Speaker 03:
And so coming back meant being available on the phone,

[00:07:43] Speaker 03:
being available to but that's what I mean the doctor sent a note and said can't do it but your honor the doctor also that was February 28th that's before the pandemic.

[00:07:54] Speaker 03:
The governor of Oregon has sent everybody home on on March 8th so my my argument is that the world changed importantly.

[00:08:04] Speaker 03:
The world changed importantly, and the job duties and restrictions in this case changed dramatically as of that moment.

[00:08:13] Speaker 03:
And whatever the doctors had said, the employer cannot just sit back.

[00:08:18] Speaker 03:
The employer and this court has said in Morton and other cases,

[00:08:22] Speaker 03:
This is a fact-intensive, particularized discussion that needs to take place.

[00:08:28] Speaker 02:
Counsel, I think you'd have a powerful argument were it not for the fact that, based on the medical record that the employer had at the time, she was not cleared to return to work, period.

[00:08:42] Speaker 03:
The question is, what does return to work mean?

[00:08:47] Speaker 03:
What were the facts?

[00:08:48] Speaker 03:
What was my client capable of doing?

[00:08:50] Speaker 03:
We know that she wasn't capable of going to the grocery store.

[00:08:53] Speaker 03:
She couldn't drive.

[00:08:55] Speaker 03:
She couldn't get to the bricks and mortar office, but she was fine to work from her bedroom.

[00:09:01] Speaker 03:
She was safe to work from her bedroom.

[00:09:03] Speaker 03:
She could have answered calls.

[00:09:05] Speaker 03:
Well, yes and no.

[00:09:06] Speaker 04:
I mean, there were these restrictions.

[00:09:08] Speaker 04:
Go ahead, Judge Gould.

[00:09:09] Speaker 01:
My question is this, I thought that the FMLA expressly provided that once the employee

[00:09:21] Speaker 01:
had a right to leave and then second and once the leave was over then the employee had a right to be reinstated or restored if the employee could work at that time with or without reasonable accommodations.

[00:09:43] Speaker 01:
So here if the

[00:09:47] Speaker 01:
employers, if the leave ends and the employer doesn't inquire about accommodations that would permit work, does that violate the FMLA?

[00:10:03] Speaker 03:
The FMLA, our argument on the FMLA is that the violation happened earlier and by not allowing her to be reinstated and instead terminated on the morning that the FMLA is expiring.

[00:10:18] Speaker 03:
So that's our argument on the FMLA.

[00:10:20] Speaker 02:
But importantly... But she wasn't saying that she could start work on March 17th.

[00:10:26] Speaker 03:
I'm quite clear on that point, and that's where the ADA then steps in.

[00:10:32] Speaker 02:
I agree.

[00:10:33] Speaker 02:
I think you've got to look at them separately, but I think under the FMLA, as Judge Gould just outlined what the statute provides, she had exhausted the remedies that the FMLA provides, so now we have to look at the ADA claim.

[00:10:49] Speaker 03:
Agreed, but to Judge Gould's question, our argument on FMLA interference is when she's asking the questions about the FMLA on March 10th during FMLA and then the employer is ghosting her and not answering those questions, we believe that that is interference.

[00:11:10] Speaker 03:
Let me go back to my ADA argument just while I have the time.

[00:11:14] Speaker 02:
As a practical matter, what difference would it make if we sent the ADA claim back and ruled that she'd exhausted her remedies under the, or her rights under the LM, FMLA, thank you.

[00:11:28] Speaker 02:
As a practical matter, what difference would it make?

[00:11:31] Speaker 02:
She would still litigate under the ADA whether she could have returned to work with reasonable accommodations, right?

[00:11:37] Speaker 03:
That's right, and the damages structure, if I'm being candid, is better under the ADA than under the FMLA.

[00:11:43] Speaker 03:
The FMLA is a corollary to the Equal Pay Act, and so that would be right.

[00:11:51] Speaker 03:
But let me just walk through what I think is the clear argument.

[00:11:55] Speaker 03:
Additional time of some length is a reasonable accommodation.

[00:12:00] Speaker 03:
That's Humphrey.

[00:12:01] Speaker 03:
She requests some additional leave, whether it's before March 16th and they know it,

[00:12:07] Speaker 03:
or it's on March 16th when she sends that letter, and that's at 5902 of the record.

[00:12:14] Speaker 03:
We know there was no interactive process here.

[00:12:16] Speaker 03:
That's conceded.

[00:12:18] Speaker 03:
And my opponent defends their choice on the grounds of futility.

[00:12:23] Speaker 03:
And what Morton teaches in this case, in this court, is that the futility is for the employer to prove.

[00:12:33] Speaker 03:
and that was not what happened here.

[00:12:35] Speaker 03:
There are material facts in dispute in this record that were not generated in this record because

[00:12:44] Speaker 03:
The employer never engaged in the interactive process.

[00:12:47] Speaker 03:
The employer never called the health care providers, never had my client go meet their own doctor, never spoke to my client.

[00:12:54] Speaker 04:
But counsel, I mean, this is where I struggle with your argument.

[00:12:58] Speaker 04:
I think you've got some equities here, but I just think you're placing way too much of a burden

[00:13:05] Speaker 04:
on the employer.

[00:13:06] Speaker 04:
I mean, at some point, all your client had to do, it's not a heavy burden, is just say, hey, I could do this work now.

[00:13:15] Speaker 04:
I could, or even say, I'm asking for a reasonable accommodation, I'll be back at work in two months, let's have a discussion about that.

[00:13:24] Speaker 04:
That didn't happen.

[00:13:25] Speaker 03:
And a jury is needed to sit down and talk.

[00:13:29] Speaker 03:
This employer was holding the job open.

[00:13:31] Speaker 03:
I've got a very strong set of facts here

[00:13:34] Speaker 03:
that the employer was holding, it's on tape, that they're holding the job open.

[00:13:38] Speaker 03:
So there's no need.

[00:13:40] Speaker 03:
The ordinary incentive for the employer is I need to fill a job that's unfilled.

[00:13:46] Speaker 03:
I've got a very important executive that I need to replace.

[00:13:49] Speaker 03:
That's not the case here.

[00:13:51] Speaker 03:
So I think I should be able to put on that evidence and tell a jury about those facts.

[00:13:58] Speaker 03:
I'll reserve the remainder of my time.

[00:14:00] Speaker 03:
Thank you, counsel.

[00:14:15] Speaker 00:
Please to the court.

[00:14:17] Speaker 00:
My name is Megan Crowhurst.

[00:14:18] Speaker 00:
I represent NAVAX Global Inc.

[00:14:20] Speaker 00:
I'm here today with Chief Legal Officer Sean Ramey and Associate General Counsel and Compliance Officer Mark Robertson.

[00:14:28] Speaker 00:
NAVAX respectfully requests that this court affirm the well-reasoned decision of the District of Oregon.

[00:14:34] Speaker 00:
There are two issues in this case, and both of those issues have already been decided by this court's Ninth Circuit precedent.

[00:14:41] Speaker 00:
The first is related to the FMLA.

[00:14:44] Speaker 00:
At the time that Ms.

[00:14:46] Speaker 00:
Jefford's leave expired, her 12 weeks of continuous leave, Ms.

[00:14:50] Speaker 00:
Jefford's healthcare providers did not release her return to work in any capacity, with or without an accommodation, from home or otherwise.

[00:14:59] Speaker 00:
They simply said she was unable to perform her job.

[00:15:03] Speaker 00:
And one of those health care providers determined that that was from present to TBD.

[00:15:09] Speaker 00:
In other words, indefinitely, unlike what my one of them did say she could come back in on June 17th.

[00:15:16] Speaker 04:
Correct.

[00:15:18] Speaker 00:
So, there were two types of forms that were submitted.

[00:15:22] Speaker 00:
The first was the FMLA Med Cert.

[00:15:24] Speaker 00:
That's the one where Dr. McNally said that she would be incapacitated TBD.

[00:15:30] Speaker 00:
The second form was a medical certification that Dr. Zalinski submitted, and that was for affirming that she would be eligible for short-term disability benefits.

[00:15:39] Speaker 00:
The only way that she could have received short-term disability benefits is if her doctor certified that she was unable to perform any work, and that is the reason why she could even accept those benefits.

[00:15:52] Speaker 00:
So when Dr. Zalinsky submitted the short-term disability medical certification form to Cigna, the disability insurer, in that form he said she would be eligible to,

[00:16:08] Speaker 00:
in his best estimate, she could potentially return to work, it was three months because the form was completed on March 3rd, and so the anticipated return to work date would have been sometime in mid-June.

[00:16:21] Speaker 00:
At that time, that's all NAVAX had to rely upon, and as was clear in the record, Ms.

[00:16:28] Speaker 00:
Jeffords position, she was a senior vice president of global services,

[00:16:32] Speaker 00:
And so her job, she managed hundreds of employees in this role.

[00:16:37] Speaker 00:
The essential functions of her job required high level of cognitive function, required her to be able to use really constant use of a computer, particularly if she was going to be working from home.

[00:16:48] Speaker 00:
and the ability to read and respond to emails, all of that.

[00:16:53] Speaker 00:
It is imperative and cannot be understated the timing of all of this, Your Honors.

[00:16:58] Speaker 00:
The fact that her medical leave or her FMLA entitlement, the 12 weeks of her leave, expired on March 13th of 2020.

[00:17:08] Speaker 00:
Of course, that was on the eve of Governor Brown's stay home, save lives order.

[00:17:12] Speaker 00:
And there is testimony, of course, that Navex, as the good business that it was, had already been in the process of business recession planning because it was already well aware that this pandemic was going to impact its business operations.

[00:17:26] Speaker 00:
So it was in that context that the executive team at Navex needed to make a decision on whether or not it could hold a high-level executive's job open for another three months during that time period.

[00:17:38] Speaker 00:
And that, Your Honors, it's important to understand that the court is permitted to consider the entire period of the leave for which she was asking.

[00:17:45] Speaker 00:
So she'd already expired three months, and now her doctor was saying at the earliest she would need another three months.

[00:17:51] Speaker 04:
Okay, so this is moving into the ADA claim, though, right?

[00:17:56] Speaker 00:
Um, absolutely.

[00:17:59] Speaker 00:
So your, your honor is a FMLA claim I think is really quite apparent.

[00:18:03] Speaker 04:
Well, and I think even opposing counsel sort of agree at least agrees that the ADA claim is a stronger claim.

[00:18:08] Speaker 04:
And I think that that's probably true.

[00:18:11] Speaker 04:
Um, so I want to be clear about what the responsibilities here are under the ADA.

[00:18:17] Speaker 04:
because there are some support for what you're saying.

[00:18:22] Speaker 04:
You're reading this, a doctor says, can't come back for three months.

[00:18:25] Speaker 04:
You're like, holy cow, how big is the executive team?

[00:18:30] Speaker 00:
I mean, are there 10?

[00:18:31] Speaker 00:
The executive team that may have assisted in making this decision or as a whole?

[00:18:34] Speaker 04:
No, well, she was an executive at the company, right?

[00:18:37] Speaker 04:
She was in senior leadership.

[00:18:39] Speaker 04:
Senior, so at what level would she have been?

[00:18:41] Speaker 00:
She was a senior vice president of global services.

[00:18:44] Speaker 04:
And so would she have been one of the top 10 in the company, or one of the top 50 in the company, or?

[00:18:51] Speaker 00:
Likely one of the top 10.

[00:18:53] Speaker 04:
OK.

[00:18:53] Speaker 04:
So do you agree that extended leave under the ADA could be a reasonable accommodation?

[00:19:02] Speaker 00:
Of course.

[00:19:03] Speaker 00:
There are circumstances.

[00:19:04] Speaker 00:
In fact, as my opponent cited in their briefing, the Nunes case.

[00:19:10] Speaker 04:
What was the leave in that?

[00:19:11] Speaker 04:
How much leave was being requested there?

[00:19:14] Speaker 00:
I believe it was eight months of leave, but the important distinction is not the period of time of the leave.

[00:19:19] Speaker 00:
It was the fact that in the Nunes case, the employee was a Walmart retail worker.

[00:19:24] Speaker 04:
And so the Ninth Circuit... There was a lot more ability for the company to... They're more fungible than one of the top 10 in the company.

[00:19:31] Speaker 04:
Totally understood.

[00:19:31] Speaker 04:
Of course.

[00:19:32] Speaker 04:
Here's the complaint that they're making, and I want to hear your response to it.

[00:19:37] Speaker 04:
Why didn't you have this conversation?

[00:19:39] Speaker 04:
Why didn't you go back and say, listen, you know, we would love to accommodate you.

[00:19:45] Speaker 04:
We already have.

[00:19:47] Speaker 04:
We can't do this for three months your position.

[00:19:49] Speaker 04:
You are at such senior leadership.

[00:19:51] Speaker 04:
We just can't allow you not to return for two more months.

[00:19:54] Speaker 04:
It's not it's or

[00:19:57] Speaker 04:
in indefinite period.

[00:19:58] Speaker 04:
You never did that, correct?

[00:20:00] Speaker 00:
They did have that conversation.

[00:20:01] Speaker 00:
That was on March 6th, the Monday following the exhaustion.

[00:20:05] Speaker 04:
And she said, sorry, I just can't come back until at least June.

[00:20:12] Speaker 00:
I don't know if she used those words, but the idea was that on the morning of Monday, March 16th, which her leave exhausted on Friday, March 13th.

[00:20:20] Speaker 00:
So that morning when they called her, they asked her how she was doing.

[00:20:23] Speaker 00:
She recorded the conversation.

[00:20:25] Speaker 00:
NAVAX was not aware of that, but it came up during the Court of Discovery.

[00:20:29] Speaker 04:
Is it in the record before us?

[00:20:32] Speaker 00:
You know, I was wondering about it, Your Honor, because I believe we submitted it to the district court as part of either reading it or they did.

[00:20:37] Speaker 00:
And I think it was submitted as an audio transcript.

[00:20:41] Speaker 00:
And I was realizing as I was sitting back here, I'm not sure if it was submitted to this court in that manner, if at all, because it was not formally transcribed.

[00:20:49] Speaker 04:
But I know that the- Because that would be relevant to whether there was this iterative process that

[00:20:55] Speaker 04:
That appellant seems to be complaining about correct.

[00:20:59] Speaker 00:
Yes and no Because the reality is as your honors understand at the time her FMLA leave exhausted the only information before NavX Was the fact that she could not return to work in any capacity not even well, that's the information we've looked at but if there's a recording of her, you know

[00:21:18] Speaker 04:
making representations to the company, I think that would be relevant to whether there was additional information.

[00:21:24] Speaker 04:
Like if she said, oh, I understand your concerns now, let me take this under advisement and figure out if there's something I could do, that would be relevant.

[00:21:34] Speaker 00:
That's not what she said during the call.

[00:21:35] Speaker 04:
But you would agree that that would be relevant here?

[00:21:38] Speaker 00:
Potentially, but at the same time, I think the employers are well aware that according to this court's precedent, the Department of Labor's regulations, the employer cannot second guess the medical opinions of the doctors presented, even if the employee says, ignore my doctor, I can do this job.

[00:21:55] Speaker 00:
The employer is not allowed to do that.

[00:21:57] Speaker 00:
The employer is not allowed to call up the doctor.

[00:21:59] Speaker 00:
The employer is not allowed to challenge it.

[00:22:01] Speaker 00:
And most certainly, the employer under no circumstances can go back to the employee after providing a doctor's note saying that they cannot perform the job and say, here, could you take this back to your doctor again and tell him you need to perform the job?

[00:22:14] Speaker 00:
That's exactly what these statutes are designed to prevent.

[00:22:18] Speaker 00:
No, I understand that.

[00:22:19] Speaker 04:
But I just wonder.

[00:22:22] Speaker 04:
Anyway, I'd love to hear the recording.

[00:22:23] Speaker 04:
I don't know how we get to it.

[00:22:25] Speaker 00:
Well, I just wanted to ask if if it were the case Wasn't it in that conversation that she said she wasn't sure she could even go to the grocery store exactly and that it does get to that and and the and The district court did address that in the in the lower courts ruling the district court said it although she claims that on that call that

[00:22:47] Speaker 00:
She was cogent, she was coherent, she could have performed the job from home.

[00:22:51] Speaker 00:
The district court as well as an avid think that that recording actually shows quite the opposite.

[00:22:56] Speaker 00:
In fact, during the call when they checked in with her and let her know that they would be ending her employment based on the medical records,

[00:23:02] Speaker 00:
When they asked her, how are you doing, she said, I can't even walk straight.

[00:23:06] Speaker 00:
I can't walk without holding a wall.

[00:23:08] Speaker 00:
I can't brush my teeth.

[00:23:09] Speaker 00:
I don't even know what I'm doing half the time.

[00:23:12] Speaker 00:
I'm unable to leave the house.

[00:23:13] Speaker 00:
So there really is no question that she did not say at that time during that call,

[00:23:18] Speaker 00:
hey, can you give me just another two more months?

[00:23:20] Speaker 00:
But even if she had, in the context of her senior leadership position and all of the Ninth Circuit precedent in this case, there was no reason why the employer necessarily needed to continue to hold the job open for three months.

[00:23:35] Speaker 00:
There are, again, the Nunes case, right?

[00:23:37] Speaker 00:
There are certainly some... Exactly.

[00:23:40] Speaker 04:
If it's a lower level line employee that's more fungible.

[00:23:43] Speaker 04:
No, I totally understand that.

[00:23:44] Speaker 04:
Does a reasonable accommodation, I think the answer is no, but does a reasonable accommodation include sort of a demotion where you could say, okay, we can't keep you on in this job, but you're very qualified.

[00:24:00] Speaker 04:
We'd love to keep you on in a job that's more fungible and we'd love to keep you on if you could do that.

[00:24:09] Speaker 04:
Does that include a reasonable accommodation or only has to be the C-level job we're talking about?

[00:24:14] Speaker 00:
No, of course a company can have that as an interactive process.

[00:24:19] Speaker 00:
You know, hey, we've got this other job.

[00:24:21] Speaker 00:
But again, the medical certification that she had in front of her said she couldn't perform any job.

[00:24:26] Speaker 00:
She was unable to return to work.

[00:24:28] Speaker 00:
And that is why she was eligible to receive the short-term disability benefits.

[00:24:33] Speaker 01:
And we think- I think Judge Gould.

[00:24:34] Speaker 01:
Judge Gould, if I could interject this question, please.

[00:24:38] Speaker 01:
I would certainly understand there's sufficient evidence for the employer

[00:24:45] Speaker 01:
if you had a trial and the court said that.

[00:24:48] Speaker 01:
But my question, what bothered me about this case?

[00:24:52] Speaker 01:
Was it being resolved by a summary judgment?

[00:24:56] Speaker 01:
So I would like you to address why there is no genuine fact issue that could affect the outcome of this trial.

[00:25:09] Speaker 00:
Yes, thank you, Your Honor.

[00:25:10] Speaker 00:
Well, the district court relied upon the Ninth Circuit precedent to demonstrate that where an employee has presented medical certification that says they are unable to perform the essential functions of the job with or without a reasonable accommodation, they are therefore not a qualified individual under the ADA.

[00:25:29] Speaker 00:
And those cases include Anthony versus Tracks.

[00:25:32] Speaker 00:
That's the Ninth Circuit opinion.

[00:25:34] Speaker 00:
in 2020 that expressly says that an employer is obligated to engage in the interactive process only if the individual is otherwise qualified or can perform the job with or without, or can perform the essential functions of the job with or without a reasonable accommodation.

[00:25:51] Speaker 00:
And in this case.

[00:25:52] Speaker 01:
So what was the evidence in this case that the employer identified the essential functions of the job?

[00:26:01] Speaker 00:
Well, yes, Your Honor.

[00:26:02] Speaker 00:
So the FMLA certification actually is really clear, and the lower court addressed that as well.

[00:26:08] Speaker 00:
Because what the FMLA certification says, and I'm going to read this, is that if the employee is...

[00:26:19] Speaker 00:
If the employer fails to provide a list of the employee's essential functions of a job or a job description, answer these questions based upon the employee's own description of his or her job functions.

[00:26:33] Speaker 00:
So again, Ms.

[00:26:34] Speaker 00:
Jeffer, and the lower court acknowledged this, right?

[00:26:37] Speaker 00:
Nobody's in a better position to know the essential functions of the job than the employee themselves.

[00:26:42] Speaker 00:
And so the employee is supposed to communicate with their doctor what the essential functions of their job are if there is no job description.

[00:26:49] Speaker 00:
And that's all within the FMLA's regulations.

[00:26:54] Speaker 00:
And I think that in addition, the only, the very first medical certification that was provided at all to NAVAX that said she could work from home was the one that she submitted.

[00:27:06] Speaker 00:
It was a fitness for duty certification.

[00:27:08] Speaker 00:
She wrote it, as Mr. Carter clarified, she wrote it, she had her doctor sign it.

[00:27:14] Speaker 00:
It was dated April 28th of 2020.

[00:27:16] Speaker 00:
It was submitted to NAVAX on May 9th.

[00:27:19] Speaker 00:
That's six weeks after the termination of her employment.

[00:27:22] Speaker 00:
And even that certification said I could return to work in June to work from home, which is a very different premise than Mr. Carter suggesting to the court.

[00:27:33] Speaker 00:
It wasn't until six weeks after her termination she submitted anything at all that said she could return to work.

[00:27:39] Speaker 00:
And even that, which is dated April 28th, contradicts an April 30th short-term disability medical certification that Dr. Zalinsky submitted.

[00:27:49] Speaker 00:
that also said she was unable to perform her work at all, not released to return to work.

[00:27:55] Speaker 00:
And it's critical that your honors understand that the reason Dr. Zelensky was certifying those short-term disability benefits was so that she could get paid, basically.

[00:28:04] Speaker 00:
And he had to certify she was unable to work in order for her to get those benefits.

[00:28:08] Speaker 04:
So the only thing, before termination, it looks like it's on March 9th, Dr. Zelensky certified that she was not released for work.

[00:28:17] Speaker 04:
and he estimated that she could return to work with restrictions in three months.

[00:28:23] Speaker 04:
That's the best, looking at the facts, most favorable to Jeffords, that's the best facts that the company had to rely on at that time.

[00:28:34] Speaker 04:
So the real question we have to decide is does that trigger

[00:28:38] Speaker 04:
some sort of iterative process, does that trigger some iterative process from the company?

[00:28:43] Speaker 04:
Did they have a duty before terminating or based on that knowledge to say, well, and your point is, no, they had the doctor's note, that's enough.

[00:28:54] Speaker 00:
Correct and there's and there's numerous Ninth Circuit precedent already that we've submitted in our briefing in addition to the Anthony versus tracks case Kennedy versus applause and Kaplan and there's just a lot of precedent for this and I think it can't go understated your honor that

[00:29:09] Speaker 00:
NAVAX is a software company that offers compliance services to businesses, including employment law.

[00:29:16] Speaker 00:
So when the executive team made this decision, they did so relying on the Ninth Circuit.

[00:29:21] Speaker 00:
They're not unintelligible about ADA and FMLA.

[00:29:24] Speaker 00:
They did this based on the regulations, the EEOC's guidance, and the Ninth Circuit precedent, all of which we put before your honors.

[00:29:31] Speaker 00:
And that is why, frankly, the lower court decided on summary judgments that

[00:29:38] Speaker 00:
If you can't rely on all of that case law to make this decision, you shouldn't be able to go before a jury.

[00:29:44] Speaker 00:
Certainly, the arguments were strong enough.

[00:29:46] Speaker 04:
Okay.

[00:29:46] Speaker 04:
Thank you, counsel.

[00:29:47] Speaker 00:
Thank you so much.

[00:29:54] Speaker 03:
Not enough hands.

[00:30:02] Speaker 03:
May it please the court?

[00:30:05] Speaker 03:
If I heard Ms.

[00:30:07] Speaker 03:
Crowhurst correctly, I think she's taking the position that March 16th, the morning call, is an interactive process.

[00:30:14] Speaker 03:
That is not the case.

[00:30:16] Speaker 03:
And there is a transcript of the call.

[00:30:18] Speaker 03:
It is in the record.

[00:30:19] Speaker 03:
It's volume two, starts at page 165.

[00:30:23] Speaker 03:
It's a transcript of the call.

[00:30:26] Speaker 03:
The call itself, Ms.

[00:30:28] Speaker 03:
Crowhurst is right, was also in the record.

[00:30:30] Speaker 03:
But we put the transcript before to make it easier on the court.

[00:30:35] Speaker 04:
And what is it in the transcript that you think changes what Dr. Zelensky said on March 9th, which is she can't return to work at all for three months?

[00:30:50] Speaker 03:
So first of all, on March 9th, it's actually filling it out on March 3rd.

[00:30:53] Speaker 03:
Dr. Zalinsky doesn't know about the pandemic coming.

[00:30:57] Speaker 04:
OK, and he doesn't know what was said.

[00:30:59] Speaker 04:
Just tell me what was said on the call that is different than the information they had from the doctor.

[00:31:05] Speaker 03:
So let's step back, and Ms.

[00:31:07] Speaker 03:
Krohers tried to go through on the job duties.

[00:31:10] Speaker 03:
I'm going to answer your honor's question, but consistent use of a computer.

[00:31:14] Speaker 03:
Is there any accommodation on that?

[00:31:17] Speaker 03:
Read emails.

[00:31:18] Speaker 04:
I just want to know what she's... Okay, I'll just go read the transcript.

[00:31:22] Speaker 03:
No, no, no.

[00:31:23] Speaker 03:
What she said and what's clear from the transcript, it's true.

[00:31:26] Speaker 03:
I need to hold the wall.

[00:31:29] Speaker 03:
I can't go to the grocery store.

[00:31:31] Speaker 03:
Those kinds of things.

[00:31:32] Speaker 03:
It's not an interactive process about what email she can read or whether she can be on a phone call.

[00:31:37] Speaker 04:
The doctor said on March 9th, she had to limit screen time and avoid reading.

[00:31:42] Speaker 04:
It did say that.

[00:31:43] Speaker 04:
And again, that was filled out on March 3rd.

[00:31:45] Speaker 04:
But COVID meant that you don't have to look at screen time and you don't have to read anymore?

[00:31:51] Speaker 03:
But Your Honor, no.

[00:31:51] Speaker 03:
But let's say an executive goes blind and cannot read.

[00:31:55] Speaker 03:
Then the employer has an accommodation to have their email read to them.

[00:32:00] Speaker 03:
If the employee has a disability that they cannot be on screen time, then they have things read to them.

[00:32:07] Speaker 03:
These are questions that the jury needs to ask and the employer can then take the position that, I see I'm out of time, let me just finish the thought, that the employer then gets to weigh in on whether or not this is an undue hardship.

[00:32:23] Speaker 03:
And as I said, I've got a very strong record here that the employer was in no rush to have to fill this position.

[00:32:30] Speaker 04:
Okay.

[00:32:31] Speaker 03:
I thank Your Honor.

[00:32:32] Speaker 04:
Yeah, thank you.

[00:32:32] Speaker 04:
Thank you to both counsel for your arguments.

[00:32:35] Speaker 04:
That concludes our session for the day and the week, and we're adjourned.