[00:00:00] Speaker 03:
Thank you, judges.

[00:00:02] Speaker 02:
Next case, case number 25-4763, Paul Cherry, et al., versus Washington Department of Fish and Wildlife, et al.

[00:01:03] Speaker 03:
Good morning, Your Honor. May it please the court, and I apologize for the cough drop. I hope I don't sound half as bad as I feel with the amount of pollen in the air.

[00:01:12] Speaker 03:
Your Honor, we're here today on a case that was initially filed on behalf of 18 plaintiffs who were separated from the Washington Department of Fish and Wildlife pursuant to the then-in-place Governor Inslee's COVID-19 vaccination proclamation. Six of those 18 plaintiffs were reinstated with back pay through settlement. Two more were reinstated through union arbitrations.

[00:01:39] Speaker 03:
Those two were among the six who survived the summary judgment motion that we're talking about here this morning, Your Honor.

[00:01:46] Speaker 03:
And then five of those who did not survive that Rule 56 are the appellants in this case. Your Honor, I would first draw the court's attention to 1ER55, which is a section of the order that indicates that the lower court found that defendants failed to show that accommodations would have posed an undue hardship within the specific context at WDOW during the relevant time period, and that the evidence on the record suggests defendants likely made an across-the-board determination that employees who could not work 100% remotely could not be accommodated.

[00:02:28] Speaker 03:
And the court then sums up and says a reasonable jury could reject defendant's undue hardship defense. The issue of undue hardship remains a fact issue for the jury. Now, despite that general finding about undue hardship, the lower court dismissed the six appellate's claims on the basis they did not cooperate with the accommodation process. The problem there, Your Honor, is that the state... failed to ever identify a concrete accommodation.

[00:03:01] Speaker 03:
And so until the state identifies that concrete accommodation, and in this case, the state is relying on the reassignment process as its reasonable accommodation, but until the state or the employer, rather, state or otherwise, Your Honor, to be more precise, identifies that actually available open position or a position that it reasonably believes will come open soon, there is nothing for the employee to accept or reject.

[00:03:29] Speaker 02:
Counsel, doesn't the employer discharge its obligation if it initiates in good faith a process by which a reasonable accommodation can be found? And once it's done that, that triggers a correlative duty on the part of the employee to cooperate in the process. And so why hasn't the state initiated a process And why is the state wrong to argue that your clients fail to cooperate?

[00:03:59] Speaker 03:
Thank you, Your Honor. First, I would remind the court that we're in a Rule 56 posture where the facts should be drawn in favor of the non-moving party. And the correlative duty doctrine does exist, certainly. We see that from American postal workers, for example. I would point out that American postal workers, for example, though, there was an actual concrete accommodation that was put forth that the employee was able to either accept or reject. So this question of good faith, as Your Honor pointed out, I think that's very important.

[00:04:32] Speaker 03:
When we talk about things like good faith or reasonableness, those are typically fact-intensive inquiries. I think particularly in the Title VII or Washington Law and Discrimination context, after the United States Supreme Court's decision in Groff, I think it's clear this is even more fact-intensive than ever. So when we have We have this group that their facts they put forth was a level of cooperation or a level of interest, and then the opposite facts are what were accepted on summary judgment.

[00:05:04] Speaker 03:
That raises the problem. But without even going there, Your Honor, and I do contend that there needs to be – let me back up, actually, Your Honor, to address another point that you raised.

[00:05:18] Speaker 03:
What is reasonable under some steps?

[00:05:22] Speaker 03:
Something more than sitting down at a computer to think about whether or not someone will be accommodated. I would contend a reasonable jury could find is not reasonable or shows a lack of good faith. We have here in the record indication that the department was intended to and obligated to search for specific open roles. And we do not see that any open role was actually offered. what was that search effort?

[00:05:49] Speaker 03:
Was there in fact, good faith as your honor points out was in fact reasonable.

[00:05:53] Speaker 02:
Well, a concrete council, a concrete position wasn't offered. The state would argue because your clients did not even participate in the process. So it wouldn't submit a resume, didn't follow up and said, we're done with this process. We're not, we're not going to cooperate. So there was no opportunity for the state to engage in dialogue, uh, with the employees. Why isn't that a valid argument?

[00:06:19] Speaker 03:
I believe that that is a valid argument for a jury, Your Honor, on a fully developed factual record that is then put in front of the fact finder. I think that the district court resolving those issues against the non-movement is not appropriate under Rule 56. I'd point out, for example, on the resume issue, Your Honor, specifically, that was an individual who had worked for the department for decades as the record indicates.

[00:06:46] Speaker 03:
His resume is his personnel file. In fact, his personnel file is more complete than any CV he could put together. At least I think a jury could infer that, a reasonable jury could find that the department had significantly more information at its fingertips for that specific individual than a CV would have provided. And that's where we come back to your honor's point about good faith and reasonableness. Those are fact-intensive issues that should have gone to a jury just as they were going to a jury on undue burden for the six who survived.

[00:07:19] Speaker 03:
Those six that survived the same summary judgment order, and I believe the public record, if not our appellate record, reflects that through the efforts of U.S. Magistrate Judge Fricke, we actually resolved those remaining damages claims, I believe two court days before trial was supposed to commence. But just as the lower court determined that it could not rule as a matter of law on undue hardship for accommodation within their position, it should have applied that same line of reasoning to these five as well.

[00:07:54] Speaker 03:
That is, if the court finds, and again, this is at 1ER 55, if the court finds a blanket policy and a failure to consider certain accommodations within that job of hire, which is within that then present position, That logic or that finding, rather, not just the logic, Your Honor, that should have applied to these five as well. And that's separate and distinct from the reassignment process.

[00:08:19] Speaker 00:
So I understand you'd be saying now that we should remand this case for a trial. What would the specific factual issue that would go before the jury be?

[00:08:28] Speaker 03:
The specific factual issues would include the reasonableness of the process as far on the reassignment piece.

[00:08:40] Speaker 03:
On accommodation more generally, there is undue hardship defense that's raised by the department. That is a fact intensive inquiry under Groff, as we now know from the Supreme Court. So that's what I believe would ultimately be tried here, Your Honor, on these discrete issues would be undue hardship of accommodating these five specific individuals within their then present position.

[00:09:05] Speaker 03:
And then also, I think there could potentially be a defense raised of cooperation and a jury, I will concede a jury could find that it is that one of these five did not participate to a level that reached their obligation to collaborate. That is a possible jury outcome. I think I have to concede that because there are always possible jury outcomes.

[00:09:29] Speaker 00:
There's a number of cases where circuit courts have ruled as a matter of law that the plaintiff's claim is barred for failing to cooperate. Where is the line when that issue can be decided as a matter of law or when it has to be decided by a jury on the facts?

[00:09:48] Speaker 03:
I think the critical line is a concrete position being offered by the employer. That is a position that is available or reasonably believed to soon become available and which also preserves the employee's employment status. We see that from American Postal Workers and I believe in Sony as well, where employees what the statutory duty of the employer, the statutory duty of the employer has is to accommodate those religious beliefs, absent an undue hardship.

[00:10:20] Speaker 03:
And when that an actual accommodation is offered and then rejected by the employee, I believe that is the clearest example, your honor of where cooperation would not be sufficient.

[00:10:34] Speaker 02:
Counsel, you mentioned if, if, um, a concrete position were offered or a concrete position is reasonably possible or on the horizon, so to speak.

[00:10:47] Speaker 02:
What's your evidence that this process was unreasonable, either because it didn't offer a concrete position or because there was no reasonable prospect of your clients filling any of those positions?

[00:11:03] Speaker 03:
Your Honor, I think there's a little more to it than that. Where the employer does not put forth that concrete position or reasonably believed to soon be available position, that also maintains the employee's status. The employer still has an obligation to show an undue hardship in that position of hire, in their then-present position.

[00:11:30] Speaker 02:
But hasn't the state – employer put forth at least some evidence about their reassignment process, that some employees were reassigned, they were accommodated, I think, you know, under 50%, not a lot, but some were. Why isn't that enough to satisfy their initial burden of showing some kind of reasonable prospect? And then the burden shifts over to you to dispute that on summary judgment.

[00:11:56] Speaker 03:
Your Honor, I believe that the employer is it is incumbent upon the employer to show the reasonable accommodation, the specific reasonable accommodation, whether it's reassignment or otherwise that's considered for that specific employee.

[00:12:12] Speaker 03:
And then if they can show an undue hardship, that is an appropriate defense, but that's not what we have here. The fact that other employees may have been accommodated in other ways is I would suggest strong evidence that cuts both ways. Certainly on the plaintiff side, I would then argue to a jury that, These are parallel positions, and this person could have been accommodated. If it's not an undue hardship for this position, it was not an undue hardship for that position. The state would presumably take a different approach with that evidence and suggest that, well, there was this process in place, so it could have yielded something.

[00:12:48] Speaker 03:
But again, that's for a jury. That's not an appropriate – Rule 56 is not the appropriate juncture for that to be resolved. Your Honor, I see I'm getting kind of low on time, so if I could reserve three minutes, please. Of course. Thank you, Your Honor.

[00:13:15] Speaker 01:
May it please the Court, Kevin Kennedy, Special Assistant Attorney General for the Appellees. There are a number of issues in this case, but I'd like to begin with the title, the District Court's Award of Summary Judgment on Title VII, Reasonable Accommodation Grounds. This Court and the Supreme Court have emphasized that mutual cooperation between an employer and an employee is proper in the search for a reasonable accommodation, and the three courts of appeals to apply that principle in this context of reassignment process have all awarded summary judgment to the employer in where it offered a reassignment process and the employee failed to participate in that process.

[00:13:48] Speaker 00:
Are you referring to the Shelton, Brough, and Walden cases? I am, Your Honor. So in those cases, I've read them, and the facts are more compelling from the employer's perspective. And so what I'm sort of wrestling with as I look at these cases is, when is the employee's duty to cooperate triggered? I mean, what does the employer have to actually do to trigger that duty? And is it enough just to say, we have this process, we have a person here who can help you, but if there's really not a reasonable prospect of finding a new job or the employer hasn't gone to the effort to identify specific jobs that might suit that employee, is that enough to trigger it?

[00:14:29] Speaker 00:
And what is the rule that district courts can follow in the future to sort of make this decision as to when it can be resolved as a matter of law and when it's a fact issue that has to go to the jury or is it ever a fact issue? Absolutely, Your Honor.

[00:14:43] Speaker 01:
The department's position is that there's a two-part test to govern the reasonable accommodation inquiry as a matter of law in this context. The first question is whether the employer has offered a good faith reassignment process to the employee. And the second question is whether the employee fails to participate in that process without good reason. So on the first question, I get, Your Honor, to be asking about the first question. The question is whether it's a good faith process. That's one that's capable of yielding a reassignment position. Here we know that the process was a good faith process because the department found reassignment positions for multiple employees.

[00:15:20] Speaker 02:
Do we have any details about the nature of those reassigned positions? Did it preserve the employees' status in those reassignments?

[00:15:30] Speaker 01:
We know that they were full-time positions in the finance division. Is that in the record? Yes, that's in – HR Representative Moore's testimony, deposition testimony at 14ER3823.

[00:15:50] Speaker 01:
Furthermore, so as a matter of law, here the department's offer of a process triggered the employee's duty to cooperate.

[00:16:00] Speaker 00:
So what if you say the trigger should be a good faith process capable of yielding a job that's a reasonable accommodation? Have I got that correct? That's correct. So would it ever be a fact issue for the jury to decide whether that's happened or not?

[00:16:15] Speaker 01:
Whether there was a good faith process?

[00:16:17] Speaker 00:
Yeah.

[00:16:18] Speaker 01:
Yes, Your Honor. I think, for example, if there were evidence in the record indicating that the department officially had this process, but the process was not designed to lead anywhere, there were emails saying, yes, we've got this process, but we don't really want to reassign anyone. But there's nothing like that here. We know it was a good faith process in which, as I just mentioned to your colleague, Judge Tongue, there were reassignment positions. Furthermore, we know that elsewhere for other employees who submitted their resume, the department searched for positions.

[00:16:54] Speaker 01:
Sometimes that yielded reassignment positions and sometimes it didn't. But that's the hallmark of a genuine process that's conducting an individualized inquiry for each employee. It's impossible to know in advance whether the reassignment process will yield a position for an employee.

[00:17:10] Speaker 00:
And that's a very fair argument. And this is a difficult sort of set of circumstances. But is there any case law that actually drills down and talks about what the rule is for when the duty to cooperate is triggered? Because the cases that we've talked about, Walden, Brough, Shelton, they just sort of go there. And I don't see any sort of guidance as to when that duty is actually triggered. Is it just a good faith process and that's enough?

[00:17:40] Speaker 01:
Your Honor, that's what those cases stand for. I think if you read those cases, they all lay out the rule and they don't lay it out in quite the terms that we do, but the facts support the rule that we're setting forth, which is that where an employer offers a good faith process capable of yielding a reassignment position, that as a matter of law triggers the employee's duty.

[00:18:00] Speaker 00:
There's some factual distinctions there too. And in Shelton, they offered the employee a job in the NICU that was apparently a reasonable accommodation and she refused it for the reasons given. In Brough, there were some possible assignments that were identified. I think Walden is closer to this case in that sense.

[00:18:21] Speaker 00:
But isn't that really the only case that sort of speaks to this issue?

[00:18:25] Speaker 01:
Your Honor, I'd like to rehabilitate those cases a little bit for you. For example, in Walden, you know, the The record only showed that there were available positions because the plaintiff themselves went online and looked to show that there were available positions. It wasn't some sort of freestanding obligation on the employer to put that evidence into the record. In Shelton, there was this other reasonable accommodation analysis, but in the portion of the opinion where the court's talking about the reassignment process, it notes that the plaintiff failed to investigate whether there were available positions such that that wasn't in the record one way or another.

[00:19:05] Speaker 01:
And so I think both of those cases are on point here. Also, if you look at the deposition testimony, for example, Anderson and DeBoer both attest to seeing open positions. They looked at them. They just didn't apply to any. And so I think what this underscores is that the question is whether the employee has participated and gone along in the process. And this sort of, you know, what would the eventual outcome be for the employee inquiry is not one the courts should mire themselves in. I think once we know it's a good faith process, then that should trigger the employee's duty.

[00:19:39] Speaker 01:
And the reason is that if the employee participates in the process, if they submit their resume, if they follow the directions from the employer, then the reasonable accommodation analysis for the court will be easy because consider it. If the employee goes through the process, obtains a position, then you can evaluate whether the position preserves their employment status. If the employee goes through the process and does not obtain a position, then then the employer has no reasonable accommodation defense.

[00:20:05] Speaker 02:
At the outset, counsel, isn't there still a question of fact as to whether the process itself would be futile? In other words, you have claimed placement of various employees, but we don't have any details as to what the office held out.

[00:20:23] Speaker 02:
With the only detail we have, the only specifics we have is one position in which the employee who was reassigned got 50% of her original pay. I don't think anyone would dispute that that's not a reasonable accommodation. So doesn't the state need to provide more evidence as to its process?

[00:20:41] Speaker 01:
Your Honor, so I think a few responses. No, the department has put forward evidence indicating that the process here was a genuine one. As I've mentioned before, there is the deposition testimony describing the fact that multiple employees, they found reassignment positions for them. We also know that employees DeBoer and Anderson testify to looking at open positions but not applying to them. So I think the record squarely supports, there's no factual question that this process was futile.

[00:21:11] Speaker 01:
In fact, it yielded reassignment position for others.

[00:21:15] Speaker 01:
And furthermore, I think once the employer has met their duty for the reasons that I've already described, the question is whether the employee failed to participate in that process with good reason. So You can imagine a situation where the employee is alerted to all sorts of facts that say this process is going nowhere. But there's nothing here. None of the employees identify any reason why they failed to participate in the process that would support their departure from that process. They simply, you know, in Lopez's case, she expressed no interest.

[00:21:46] Speaker 01:
In Cherry's case, he failed to respond to an explicit request for his resume. DeBoer withdrew from the process. Frady missed an explicit deadline. And Anderson similarly resigned in the middle of the process. If you look at the excerpts of record 5 ER 1147, he resigned on 10-7. But in his deposition testimony at 15 ER 3860-61, he describes receiving a letter on 10-8 that gave him until 10-13 to initiate the reassignment process.

[00:22:17] Speaker 01:
So again, for each of the employees, the evidence is quite clear that they were the one that short-circuited the process and failed to cooperate.

[00:22:25] Speaker 01:
I'd like to also address, you know, to the extent the court is concerned about a broad holding in this context, I think it can and should under this court's cases consider the cumulative burden facing the employer. This was, the department was facing 130 accommodation requests. And in that context, it's particularly reasonable for an employer to set bright line rules and strictly enforce them, which is what they did here.

[00:22:52] Speaker 01:
And furthermore, this was not only sheer number of accommodation requests, it was in the middle of a global pandemic. And so the department was trying to make sure that its employees were safe, that it was continuing to provide services. And as this court has said in the city of Scottsdale case, courts must ensure proper deference to local agencies in the midst of a public health crisis. And I think that those reasons, to the extent the court wanted to address sort of narrowly this case and recognize that the department's approach was reasonable, particularly here, those are THINGS THEY COULD POINT TO.

[00:23:27] Speaker 01:
FURTHERMORE, I WOULD LIKE TO ADDRESS THAT THIS COURT RECENTLY HEARD ANOTHER CASE PRESENTING A SIMILAR ISSUE IN LUXTON A COUPLE OF WEEKS AGO, AND SO I FLAG THAT FOR THE COURT JUST SO THAT IT KNOWS AND APPLIES WHATEVER PROCEDURES IT NORMALLY APPLIES WHERE THERE'S AN EARLIER ARGUED AND SUBMITTED CASE PRESENTING SUBSTANTIALLY SIMILAR ISSUES.

[00:23:53] Speaker 01:
I'd also like to note that I'd also like to address briefly the employee's argument for injunctive relief.

[00:24:02] Speaker 01:
Their request for injunctive relief falls outside of the scope of the ex parte young exception.

[00:24:07] Speaker 01:
That exception requires under, for example, Lawrence Livermore and the Supreme Court's, this court's decision in Lawrence Livermore and Supreme Court decisions, an ongoing violation of federal law. But here the policy was rescinded. The vaccine mandate was rescinded before they filed their lawsuits. And so there was no ongoing violation of federal law. And this court recently applied that principle in Taylor, an unpublished decision, which is at 2026 WL 1534394.

[00:24:38] Speaker 01:
So this and this court should reach that same same decision here.

[00:24:48] Speaker 01:
So, again, Your Honor, I'd like to reiterate that as a matter of law, this is a question as a matter of law for the court to, there's a clear, when the department offered a reassignment process, it triggered the employee's duty as a matter of law. There's no factual dispute about that for the jury. The department offered the process and this court can hold as a matter of law that that triggered the duty. And there's also no genuine dispute that each of the employees failed to participate in that process or short-circuited that process.

[00:25:21] Speaker 01:
And so in that, CONTEXT AS THREE OTHER COURT OF APPEALS HAVE HELD, SUMMARY JUDGMENT IS PROPER FOR THE EMPLOYER.

[00:25:29] Speaker 01:
IF THE COURT HAS NO FURTHER QUESTIONS, I URGE THE COURT TO AFFIRM.

[00:25:32] Speaker 02:
NEW SPEAKER THANK YOU, COUNSEL.

[00:25:33] Speaker 03:
NEW SPEAKER THANK YOU, YOUR HONOR. I WAS QUICKLY TRYING TO LOOK UP THE DATE but I'm not sure it is accurate that this complaint was filed after Governor Inslee's proclamation was rescinded. I believe this one was actually filed previously, which would be critically distinctive from the Taylor case, the unpublished memorandum the council just indicated.

[00:26:07] Speaker 03:
I was not able to look that up quickly enough, though, I'll admit, Your Honor, but I do think this may be the case that this case was and would therefore, under the recent authority, In Carvalho, for example, a recent en bloc Ninth Circuit opinion, reinstatement would be prospective injunctive relief to restore the status quo at the time that this case was filed. So that would be an exception to ex parte young, and that would be a remedy that would be available for these individuals. And that's independent of what we've been talking about this morning, Your Honor, under the Title VII or WALAD cases.

[00:26:42] Speaker 03:
Those doctrines are going to go to the 1983 claims that were also dismissed in the case, which we just haven't had time to discuss here, Your Honor, but I believe we did brief those. To answer Your Honor's question about where is the line, I would draw the court's attention to Heller v. EBB Auto Company, 8F3rd, 1433 at 1440. It's a 1993 case in the Ninth Circuit. And in that case, this court said an employer's A co-command duty to cooperate, however, arises only after and with after emphasizing the original.

[00:27:21] Speaker 03:
The employer has suggested a possible accommodation. And so here we don't have that. We have a process, a process that might result in an accommodation. And that's the reassignment piece. So we don't have reassignment to a NICU position, for example, that's been rejected by the person for whatever reason. The employer in this case did not identify an actual position, and they didn't even get to that threshold.

[00:27:52] Speaker 03:
They didn't certainly reach the second threshold. The question is, would that actually available or soon to become available position preserve employee status? As Your Honor pointed out, our record does reflect a 50% pay cut offered, a position offered which would result in a 50% pay cut. that was actually to an individual that survived summary judgment. Um, that is someone who was headed to trial and we, we resolved the case just before.

[00:28:17] Speaker 00:
So again, we have, so there's, there's a larger pool of individuals, um, about a hundred who did apply. And I think it's about 14% that were accommodated. Can you explain me what the difference is between those two groups? Cause that's, that's more than just zero out of six. That's 14% out of that's a, that's a better group from which to sort of decide whether or not this process was meaningful and, made in good faith.

[00:28:42] Speaker 03:
And I think that at a trial, the employer could argue that this, and they'd want to have to argue it against something when we're talking about percentages, right? This 14%, the process achieved a result for this 14%. I think that is a fine trial argument for the state to make. Of course, we would be pointing out pretty quickly that that if you were a medical exemptor who had an approved accommodation, if you had approved exemption for a secular reason, a medical request, you had about a 45% chance of being accommodated.

[00:29:16] Speaker 03:
Now that both of those cut both ways, as I indicated earlier, if 45% of medical exemptees exemptors, excuse me, are able to be accommodated, whether it's through their position of hire or through reassignment. And I believe if we look at the data, your honor, that's not, 15% reassignments. Those were accommodations that were either reassignment or in position of hire based on the OFM data.

[00:29:41] Speaker 03:
And that could be an indication that there was a process that worked. For these specific plaintiffs, though, under Heller, their duty to cooperate in the process arise only once a possible accommodation was suggested. The possible accommodation was not suggested. And in fact, Judge Estadio at the district court found a blanket policy of not accommodating within positions, which is distinct from the reassignment defense and allowed those six individuals to proceed to trial.

[00:30:14] Speaker 03:
So that same line, irrespective of reassignment, that same finding by the court should have applied to these six as well.

[00:30:24] Speaker 03:
Maybe reassignment just does not become a factor because the individuals were not the, at least at summary judgment, At least at Rule 56, the employer did not show that it was an undue hardship to keep these five either in their then-present positions or their positions of hire. They, therefore, should have been able to proceed to a jury to make these factual determinations. And I see that I'm well over my time, Your Honor.

[00:30:53] Speaker 02:
Thank you, Counsel.

[00:30:54] Speaker 03:
Thank you, Your Honor. The case is submitted.