[00:00:06] Speaker 03:
The next case on the oral argument calendar is Gonzalez versus Battelle, 25-1037.

[00:00:37] Speaker 01:
I have to make a note.

[00:00:42] Speaker 03:
Take your time, your honor.

[00:01:00] Speaker 03:
Okay, I'm all set.

[00:01:02] Speaker 03:
Go right ahead.

[00:01:04] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:01:06] Speaker 01:
My name is Kelsey Van Overloop from Littler Mendelson, representing Battelle Energy Alliance, which I'll be referring to as Battelle.

[00:01:13] Speaker 01:
This case turns on the District Court's misunderstanding of several issues.

[00:01:18] Speaker 01:
The first is the regulation at issue.

[00:01:20] Speaker 01:
The regulation at issue here was 10 CFR 1046, not Section 712, the Human Reliability Program.

[00:01:28] Speaker 01:
It is the court's misunderstanding of this key regulation that allowed Mr. Gonzalez to fail to exhaust 1046's independent review process, yet still be permitted to submit his ADA claim to the jury, and that allowed judicial review to be applied to the decision that clearly implicates national security and is predictive.

[00:01:48] Speaker 03:
Why do you think a court misunderstood the two certifications?

[00:01:52] Speaker 01:
Well, it's a confusing statute, Your Honor.

[00:01:54] Speaker 03:
No, no, no, I don't mean that.

[00:01:56] Speaker 03:
I mean, what indication is that he misunderstood them?

[00:01:59] Speaker 01:
I think the biggest indication is him saying that 1046 doesn't implicate national security when he was ruling on the Rule 50 motion.

[00:02:08] Speaker 03:
Well, let me just push back on that, because it took me a while to figure it out.

[00:02:11] Speaker 03:
I had to drill down pretty hard on the regulations, and 1046 strikes me as much more limited.

[00:02:17] Speaker 03:
What I wound up shorthanding

[00:02:20] Speaker 03:
and it's too abbreviated, is that that strikes me as a physical fitness test.

[00:02:24] Speaker 03:
Maybe a physical fitness test on steroids, but a physical agility test and fitness admittedly with a psychological component.

[00:02:33] Speaker 03:
But the other, the HRP is a security clearance.

[00:02:37] Speaker 03:
It includes a background check.

[00:02:39] Speaker 03:
It includes a polygraph.

[00:02:40] Speaker 03:
It includes inquiring into foreign contacts.

[00:02:43] Speaker 03:
It's a really different analysis.

[00:02:46] Speaker 03:
And it seems to me that the district court understood that quite well.

[00:02:49] Speaker 03:
I disagree respectfully your honor.

[00:02:51] Speaker 03:
Okay what's the indication in the record that the court misunderstood the purpose of the two regulations please?

[00:02:58] Speaker 01:
Of the two regulations?

[00:03:00] Speaker 03:
That's the point you're making right?

[00:03:02] Speaker 01:
Yes.

[00:03:02] Speaker 01:
Okay.

[00:03:06] Speaker 01:
I believe it was permeating throughout the trial, that the focus of every witness was HRP when Mr. Gonzalez was decertified under 1046.

[00:03:16] Speaker 01:
This is discussed explicitly when he's discussing the Rule 50B motion on the first day of trial.

[00:03:24] Speaker 01:
And I disagree with you, Your Honor, that 1046 is simply a... I agree it's not simply a physical fitness test.

[00:03:32] Speaker 03:
I was just trying to, for purposes of conversation, recognize that it is.

[00:03:35] Speaker 03:
significantly more limited when we drill down on those rigs.

[00:03:39] Speaker 03:
It is predictive, which is a key.

[00:03:43] Speaker 03:
Yes, but it has to be predictive of a national security concern.

[00:03:46] Speaker 03:
Justice Kavanaugh talked about this in one of his other cases and talked about this is the highest level security clearance that DOE has if we're talking about HRP.

[00:03:55] Speaker 03:
And I do have the question for both of you about why people spent so much time at trial on HRP.

[00:04:00] Speaker 03:
I appreciate you raising that because that's not very clearly.

[00:04:03] Speaker 03:
not the provision that Battelle relied upon to terminate this employee.

[00:04:07] Speaker 03:
But I think I'm guessing that the reason it was, I think, twofold.

[00:04:12] Speaker 03:
One is that that process was not completed by Battelle.

[00:04:17] Speaker 03:
And had Battelle wanted to go that route, it certainly would have had to consult with the DOE.

[00:04:24] Speaker 03:
The DOE is the one who gave him that security clearance at the outset.

[00:04:28] Speaker 03:
And I think it's because he's arguing pretext.

[00:04:32] Speaker 03:
Isn't that why he invoked both of them?

[00:04:36] Speaker 01:
So the reason that HRP was the focus is because that's what Mr. Gonzalez understood the whole focus to be.

[00:04:42] Speaker 01:
He testified that he didn't understand that 1046 was even involved until much later in the case.

[00:04:48] Speaker 01:
But that's not what Bataille thought.

[00:04:51] Speaker 01:
As early as July of 2018, Dr. Magnan raised the fact that,

[00:04:58] Speaker 01:
this chronic opioid use invoked both HRP and 1046.

[00:05:02] Speaker 01:
1046 is predictive.

[00:05:06] Speaker 01:
I also dug into the regs quite a bit on this, too, and it's different.

[00:05:10] Speaker 01:
If you look at Hale v. Johnson, so that's a case that's where they found that Egan didn't apply, and that was what you're talking about.

[00:05:18] Speaker 01:
That's the strictly physical attributes.

[00:05:20] Speaker 01:
That was a pulmonary function test.

[00:05:22] Speaker 01:
But here we have a case where we have something that's predictive, where we're looking forward.

[00:05:28] Speaker 01:
When you look at 1046.26, the accept... Can I stop you there so you can aim to this?

[00:05:35] Speaker 03:
I understand what predictive means, but it has to be, for Egan, it has to be predictive of a national security concern.

[00:05:41] Speaker 01:
Yes.

[00:05:41] Speaker 03:
As opposed to his ability to physically undertake the position.

[00:05:45] Speaker 01:
The regulation itself explicitly talks about national security.

[00:05:50] Speaker 01:
If you look at 1046.17E3, it talks about the day-to-day functions of an SPO.

[00:05:57] Speaker 01:
Each SO must possess the knowledge, skills, and abilities necessary to protect DOE security interests from theft, sabotage, and other acts that may harm national security.

[00:06:08] Speaker 01:
It's explicitly in the regulation.

[00:06:10] Speaker 01:
The same is true of section 1046.11 F through G. An SPO must be able to support the pursuit and recovery of a department's security interests.

[00:06:21] Speaker 01:
The primary role is to recapture, pursuit, and or recover DOE security interests.

[00:06:27] Speaker 01:
Now I know my friend took issue with the fact that I cited Cleghorn v. Harrington, but that case explicitly talks about how 1046 is connected to national security.

[00:06:39] Speaker 01:
We don't want a terrorist attack at a nuclear facility.

[00:06:42] Speaker 01:
But the entire reason that 1046 exists is to ensure that the security force is able to complete the essential functions with or without accommodation to protect our nuclear reactors and where nuclear things are stored.

[00:07:00] Speaker 03:
Can I ask you, you mentioned with or without accommodation, and I want to make sure I'm understanding your asterisk there.

[00:07:06] Speaker 03:
Is it correct that, and maybe uncontested, that 1046 requires accommodation pursuant to the ADA?

[00:07:12] Speaker 01:
So I think this was another issue that the court got wrong.

[00:07:16] Speaker 01:
The court saw that the ADA was mentioned in 1046.2 and said, well, it's just completely incorporated.

[00:07:23] Speaker 01:
That's not the case.

[00:07:25] Speaker 01:
Accommodations are required under 1046, but 1046 itself states the essential functions.

[00:07:34] Speaker 01:
It states that

[00:07:37] Speaker 01:
If you are not certified under 1046, you cannot meet the essential functions of your role with or without reasonable accommodation.

[00:07:46] Speaker 01:
That is in the definition of medical certification at 1046.3.

[00:07:51] Speaker 03:
So 1046.13C requires accommodation, reasonable accommodation only.

[00:08:00] Speaker 03:
Yes.

[00:08:00] Speaker 03:
But you're not disputing that.

[00:08:01] Speaker 01:
No, I'm not saying that accommodations don't come into play, and Bataille,

[00:08:06] Speaker 01:
did attempt to accommodate Mr. Gonzalez here by offering him roles he was qualified for.

[00:08:14] Speaker 01:
The accommodation he was asking for is to do the essential functions of the job while chronically using opioids.

[00:08:21] Speaker 01:
And the decertification itself considers that.

[00:08:25] Speaker 01:
It says that you cannot do the essential functions of your job with or without accommodations.

[00:08:31] Speaker 01:
So the certification is the qualification under the ADA.

[00:08:35] Speaker 01:
The 1046 has not incorporated the qualification requirement of the ADA.

[00:08:40] Speaker 01:
It has only incorporated the accommodation requirement.

[00:08:48] Speaker 01:
The next issue, Your Honor, is that judicial review or is that 1046 is a threshold requirement.

[00:08:59] Speaker 01:
It means that you cannot meet it.

[00:09:01] Speaker 01:
If you cannot meet it, you are not a qualified individual.

[00:09:05] Speaker 01:
If you don't agree that Egan applies, the language of the statute itself says that you are not qualified.

[00:09:13] Speaker 01:
So how then can you submit an ADA claim to a jury if the statute says by finding you are decertified, you are not qualified?

[00:09:21] Speaker 03:
Well, the theory is pretext.

[00:09:24] Speaker 01:
It's a regarded as claim, definitely.

[00:09:28] Speaker 03:
But where?

[00:09:29] Speaker 03:
I don't hear that acknowledged in your argument.

[00:09:30] Speaker 03:
Can you help back up and explain?

[00:09:32] Speaker 01:
Sure.

[00:09:33] Speaker 01:
So because the jury found that they did not discriminate him on the basis of his back injury, that it was regarded as claim, his whole theory is that they were going down the HRP road.

[00:09:44] Speaker 01:
They didn't like what they were getting for other people on HRP, so they quickly switched to 1046 because they don't like opioid addicts.

[00:09:54] Speaker 01:
That's his theory of the case.

[00:09:56] Speaker 03:
I was just translating when you said they.

[00:10:00] Speaker 03:
You mean, Mr. Gonzalez thought that his employer didn't proceed with the review process under HRP, which would have required that they send this to DOE.

[00:10:13] Speaker 03:
And his theory, I think you're referring to this, is that then they switch to 1046.

[00:10:17] Speaker 03:
Yes.

[00:10:18] Speaker 03:
All right.

[00:10:18] Speaker 03:
Now I'm caught up to you.

[00:10:20] Speaker 01:
Now you're with me.

[00:10:20] Speaker 01:
I'm sorry.

[00:10:21] Speaker 01:
I'm not pronouncing your honor.

[00:10:22] Speaker 01:
It's the pronouns make it tough.

[00:10:23] Speaker 03:
But I'm with you.

[00:10:24] Speaker 03:
Go ahead.

[00:10:25] Speaker 01:
So to say that it's all on pretext is to ignore the requirements of 1046 and Egan.

[00:10:34] Speaker 03:
Well, the difficulty, forgive me for interrupting, but the difficulty is the jury knew very well that DOE had given him what I'm calling the security clearance.

[00:10:41] Speaker 03:
That's my shorthand under HRP.

[00:10:43] Speaker 03:
And that he performed the job for many, many years until there was this revocation.

[00:10:48] Speaker 03:
And I think the jury heard that there had been two positive drug tests,

[00:10:52] Speaker 03:
And after those drug tests, he was recertified because there hadn't been any reports of him not being able to do the job.

[00:11:04] Speaker 03:
So it was up to the jury to decide the reason for the termination.

[00:11:08] Speaker 03:
And that entailed the reason for the termination.

[00:11:11] Speaker 03:
revoking the 1046, right?

[00:11:13] Speaker 03:
So could you respond to that?

[00:11:14] Speaker 01:
So there's two answers to that, Your Honor.

[00:11:16] Speaker 01:
First, the jury isn't the one who should be making the decision.

[00:11:19] Speaker 01:
If you believe that Egan applies, which we do, then this case... What's your best case that Egan has ever applied to a 1046?

[00:11:27] Speaker 03:
I don't see one at all.

[00:11:29] Speaker 03:
This is a decision not made by an agency counsel, as you know, of course.

[00:11:33] Speaker 03:
And so it strikes me that you're asking for a significant expansion of Egan, but please tell me if I'm wrong.

[00:11:40] Speaker 01:
I do think you're wrong, Your Honor, respectfully.

[00:11:42] Speaker 03:
That's okay.

[00:11:43] Speaker 01:
Because of Bataille.

[00:11:46] Speaker 01:
I know Bataille is not a 1046 decision, but that is a case where the Air Force delegated basically a security clearance to a private contractor and when the private contractor withdrew that access, that decision was found to be an agency decision.

[00:12:06] Speaker 01:
The same is what happened under 1046.

[00:12:08] Speaker 01:
So it's not 1046.

[00:12:11] Speaker 03:
So can we just be clear that I don't think you have a case where this has ever been applied, Egan's ever been applied to a 1046.

[00:12:18] Speaker 03:
That was the question.

[00:12:19] Speaker 03:
I just want to get that before we move on.

[00:12:22] Speaker 03:
Is that a yes?

[00:12:23] Speaker 03:
Yes, you don't have one?

[00:12:24] Speaker 03:
Because I can't find one.

[00:12:26] Speaker 03:
There is only cases where it applies to HRP.

[00:12:28] Speaker 03:
Well, and I get that you want this to be the first.

[00:12:29] Speaker 03:
I'm just trying to make sure I'm not missing one.

[00:12:31] Speaker 03:
So then go to the next, if you would.

[00:12:33] Speaker 03:
Because I think you're insisting that your client, the DOE, delegated this authority to your client the way it had been delegated in the Boeing case.

[00:12:40] Speaker 01:
The way it had been delegated in the Boeing and in the DOT cases.

[00:12:43] Speaker 03:
But here, DOE expressly reserved the authority.

[00:12:47] Speaker 03:
They didn't delegate.

[00:12:48] Speaker 01:
No.

[00:12:50] Speaker 01:
That's not entirely true, Your Honor.

[00:12:52] Speaker 03:
Okay, so what's the best showing?

[00:12:54] Speaker 03:
Help me out with this point.

[00:12:55] Speaker 01:
Yes.

[00:12:55] Speaker 03:
Where does it tell me that DOE delegated this authority to your client, please?

[00:13:05] Speaker 01:
So it's under the, just like with the DOE, where the statute delegates authority to the Department of Transportation, the enforcing statute delegates authority to the DOE.

[00:13:18] Speaker 01:
Within 1046,

[00:13:20] Speaker 01:
Starting at 1046.1, the DOE has delegated to its contracting force the ability to manage and evaluate its protective force.

[00:13:34] Speaker 03:
I certainly appreciate that there's delegation to DOE pursuant to the statute.

[00:13:38] Speaker 03:
Where has DOE delegated to your client?

[00:13:46] Speaker 01:
In 1046.1 and 2.

[00:13:48] Speaker 03:
Okay.

[00:13:50] Speaker 01:
And it has delegated to it because the DOE cannot do all the things that is required by 1046.

[00:13:57] Speaker 01:
1046 defines what the PPMD is.

[00:14:01] Speaker 01:
It defines who... Sorry, the physicians that make the decision about decertification.

[00:14:08] Speaker 03:
They are the... They have almost as many initials as an environmental... I know.

[00:14:11] Speaker 03:
There are a lot here.

[00:14:12] Speaker 03:
It's the military and environmental cases.

[00:14:14] Speaker 01:
Yes.

[00:14:14] Speaker 03:
But I've got a glossary, so it's okay.

[00:14:16] Speaker 01:
Go ahead.

[00:14:17] Speaker 01:
I'd like to reserve some time.

[00:14:19] Speaker 01:
So by delegating this authority to both evaluate its protective force and have the protective force through its government contractors, it's acting exactly as Boeing was on that Air Force contract.

[00:14:38] Speaker 01:
Beating applies.

[00:14:40] Speaker 01:
I also think Maori versus National Geospatial Intelligence Agency is helpful here because there it lays out a three-part test to apply to these regulations and stuff.

[00:14:51] Speaker 03:
Excuse me, that's case site?

[00:14:53] Speaker 01:
Sure, 142F4th428.

[00:14:56] Speaker 01:
It's also cited in our brief.

[00:14:57] Speaker 01:
It's a fourth circuit case.

[00:14:59] Speaker 03:
Hang on one second.

[00:15:00] Speaker 03:
I thought I had read every one of them.

[00:15:01] Speaker 03:
142F4th what?

[00:15:03] Speaker 01:
428.

[00:15:04] Speaker 03:
I'll make sure that I have.

[00:15:05] Speaker 03:
OK, go ahead.

[00:15:06] Speaker 01:
And it lays out the elements that you consider when applying EGIN, which is does the agency derive its authority from the executive?

[00:15:13] Speaker 01:
Yes.

[00:15:14] Speaker 01:
Here Battelle derives its authority from the fact that it works with the DOE to provide a protective force.

[00:15:21] Speaker 01:
Second, the decision implicates national security.

[00:15:24] Speaker 01:
The text of the regulation itself discusses national security explicitly.

[00:15:30] Speaker 01:
And third, does the decision involve predictions about someone's future content?

[00:15:35] Speaker 01:
Here there are explicit references to will not endanger, what will happen in the future.

[00:15:41] Speaker 01:
The fact that the jury heard things that had happened in the past, that Mr. Gonzalez had never had an issue, that is not what 1046 asks.

[00:15:48] Speaker 01:
Each time a protective force member comes before a medical officer, they have to decide, go looking into the future, can this person do the job?

[00:15:59] Speaker 01:
Thank you.

[00:16:00] Speaker 03:
Thank you.

[00:16:01] Speaker 03:
For planning purposes, when you come back, we'll put two minutes on the clock.

[00:16:04] Speaker 01:
I appreciate that.

[00:16:05] Speaker 03:
You're welcome.

[00:16:14] Speaker 02:
May it please the court?

[00:16:15] Speaker 02:
My name is Deanne Casperson, and I'm here today on behalf of my client, Roman Gonzalez.

[00:16:21] Speaker 02:
This case is about Battelle substituting assumption for evaluation.

[00:16:27] Speaker 02:
The ADA allows employers even in safety-sensitive roles to act on actual risk.

[00:16:33] Speaker 02:
What it forbids is exactly what happened here.

[00:16:36] Speaker 02:
It presumed that a long-term employee who had no performance issues, no supervisory complaints, no issues of poor performance or behavior, and just assumed that he was a drug addict.

[00:16:52] Speaker 02:
Instead, the ADA requires that

[00:16:55] Speaker 02:
There has to be an objective, individualized evidence in order to support this.

[00:17:02] Speaker 03:
Well, they don't have to wait for an accident, that's for sure.

[00:17:05] Speaker 03:
And these are very sensitive areas.

[00:17:07] Speaker 03:
And they knew he was, opposing counsel says, a chronic user.

[00:17:13] Speaker 03:
He was taking a prescription to manage pain.

[00:17:16] Speaker 03:
So that allowed them to do what?

[00:17:21] Speaker 03:
Periodic drug testing, surely?

[00:17:22] Speaker 02:
Surely.

[00:17:24] Speaker 03:
Yes, so as he... If this new medical director had a concern about this, what were his options?

[00:17:31] Speaker 02:
Well, actually, he wasn't a new medical director.

[00:17:34] Speaker 02:
He came in as one of the additional doctors.

[00:17:38] Speaker 02:
Dr. Curtis was actually... No, I'm talking about... It doesn't matter.

[00:17:41] Speaker 03:
Just pick a doctor.

[00:17:43] Speaker 03:
I had to work for your client.

[00:17:44] Speaker 03:
There was a concern.

[00:17:45] Speaker 03:
What are they allowed to do?

[00:17:47] Speaker 02:
So if they have a legitimate concern and Dr. Mangan expressed concern, not, he indicated that the drug tests were MRO negative.

[00:17:57] Speaker 02:
That means that they came in at really low levels.

[00:18:00] Speaker 02:
He knew he had a prescription.

[00:18:02] Speaker 02:
And so he marked them off as MRO negative.

[00:18:05] Speaker 02:
That's another acronym.

[00:18:06] Speaker 02:
What's MRO?

[00:18:07] Speaker 02:
It's Medical Review Officer.

[00:18:09] Speaker 02:
And that Dr. Mangan was serving as that.

[00:18:12] Speaker 02:
He signed off on those two drug tests as negative.

[00:18:17] Speaker 02:
But he kept raising concern about the fact that Mr. Gonzalez had this prescription and he thought he had too many pills that were being given to him.

[00:18:30] Speaker 03:
That's the part we do understand.

[00:18:32] Speaker 03:
My question is what were the defendant's options, please?

[00:18:35] Speaker 02:
Yes.

[00:18:37] Speaker 02:
Their options, if they have a concern, and we didn't contest this, they can temporarily remove him from HRP.

[00:18:45] Speaker 02:
And we didn't have any objection to that.

[00:18:47] Speaker 02:
And then what happened?

[00:18:48] Speaker 02:
So after that, then they're supposed to do analysis.

[00:18:53] Speaker 02:
In fact, they told DOE that they would send him to be separately evaluated.

[00:18:59] Speaker 02:
They did do an MMPI because it was his second year and it has to be done every two years.

[00:19:05] Speaker 02:
It came back without any indication that there was addiction.

[00:19:10] Speaker 02:
What they did instead of actually evaluating or talking to his... Hang on, hang on, hang on.

[00:19:15] Speaker 03:
What was supposed to happen next?

[00:19:17] Speaker 02:
So what was supposed to happen next is they were supposed to investigate, evaluate, then they prepare a report if they still have concern and they haven't resolved it.

[00:19:26] Speaker 02:
and they prepare that report and they submit it to DOE.

[00:19:30] Speaker 02:
And then DOE is supposed to take a look at that and decide whether this person should continue in HRP or not.

[00:19:39] Speaker 03:
My understanding is the regulation requires that the DOE manager make that decision if we're talking about HRP, which we're not, because he wasn't fired pursuant to HRP, right?

[00:19:50] Speaker 03:
So they went with 1046.

[00:19:53] Speaker 03:
Well, I'm not sure I would agree that they didn't really fire him for that because what they... I appreciate that and I get that this is a pretext case, but I just mean they didn't complete that process, right?

[00:20:04] Speaker 03:
It didn't happen.

[00:20:05] Speaker 02:
They didn't complete that process, but they admitted in their briefing that without HRP access in place, plaintiff could not perform the central functions of his assigned job under 1046.

[00:20:18] Speaker 02:
And they admitted that these two regulations are combined.

[00:20:22] Speaker 02:
And yes, we did make the argument because of what happened with employee 165 where that got raised to DOE and DOE disagreed with Battelle's complete exclusion of having someone just not be able to work if they had a legal prescription for opioid medications.

[00:20:42] Speaker 02:
And so, instead of preparing that report, what Battelle did is they held Mr. Gonzalez hostage.

[00:20:49] Speaker 02:
They said, unless you will sign this stipulation of understanding that we won't let you read beforehand, we will not certify you for HRP.

[00:21:01] Speaker 02:
And then when he said, I can't sign something that you won't let me read and I really want you to talk to my doctor because I have tried treatment after treatment and this is the only thing that works for me.

[00:21:13] Speaker 02:
I never take it while I work.

[00:21:15] Speaker 02:
I never take it within eight hours of coming to work.

[00:21:18] Speaker 03:
When you said treatment after treatment for pain management?

[00:21:21] Speaker 02:
Yes.

[00:21:22] Speaker 02:
Yes, and Dr. Reinflesch testified about the painful injections that he had gone for, the other drugs that he had tried to use.

[00:21:31] Speaker 02:
I understand.

[00:21:32] Speaker 02:
And so instead of going forward and submitting this to DOE, and of course that's Battelle's obligation to do so, not Mr. Gonzalez's,

[00:21:47] Speaker 02:
They suddenly switch and say, oh, well, you're not qualified now under 1046.

[00:21:53] Speaker 02:
They never talk to his doctor.

[00:21:55] Speaker 02:
They never do any testing.

[00:21:57] Speaker 02:
They never send him out for this evaluation.

[00:21:59] Speaker 02:
Why isn't that an option for them?

[00:22:02] Speaker 03:
Why is that not an option for them?

[00:22:04] Speaker 03:
Why is that not an option for them?

[00:22:06] Speaker 03:
They have the authority to decertify under 1046, unlike HRP.

[00:22:12] Speaker 03:
So can I just understand your theory about why it was impermissible for them to proceed under 1046?

[00:22:17] Speaker 02:
Well, number one, our argument, obviously, is that it is pretextual.

[00:22:23] Speaker 02:
They're not DOE.

[00:22:25] Speaker 03:
They don't have the... They didn't have to be DOE under 1046.

[00:22:29] Speaker 03:
I understand your first argument is pretextual, right?

[00:22:33] Speaker 02:
Yes.

[00:22:33] Speaker 03:
What's your second argument?

[00:22:35] Speaker 02:
My second argument is that even under that regulation they have to do, they have to have objective evidence because they're still subject to the ADA.

[00:22:45] Speaker 02:
They don't get to just do 1046 without still being subject to the ADA.

[00:22:51] Speaker 03:
Can you tell me about that latter point?

[00:22:54] Speaker 03:
On the ADA, I think you cited a different provision when you said that 1046 has to accommodate, meaning the employer has to accommodate pursuant

[00:23:06] Speaker 03:
The ADA, and I don't know why you aren't relying on both of you.

[00:23:11] Speaker 03:
1046.13C, you seem to point out both of you.

[00:23:16] Speaker 03:
1046.2.

[00:23:17] Speaker 03:
Is there something I'm missing about 1046.13?

[00:23:27] Speaker 03:
Are you familiar with that provision or am I just?

[00:23:29] Speaker 02:
I am taking a look at that and I think I am.

[00:23:32] Speaker 02:
And that I think still requires, I'm not sure that it references specifically the ADA, but I think it talks about the specificity and the objective evidence that you need.

[00:23:45] Speaker 03:
All right.

[00:23:47] Speaker 03:
So at any rate, that's a question of law.

[00:23:48] Speaker 03:
We can probably handle that given what we do for a living.

[00:23:50] Speaker 03:
So your position is when they went forward,

[00:23:55] Speaker 03:
Under 1046, they were required to talk to his doctor, do a medical evaluation or what?

[00:24:02] Speaker 03:
Why wasn't their concern enough?

[00:24:04] Speaker 02:
So, our position is that they're still subject to the ADA just like any other private employer.

[00:24:11] Speaker 02:
They have to have this subjective evidence.

[00:24:14] Speaker 02:
They know that he has performed the job for years.

[00:24:17] Speaker 02:
He has followed the same regimen.

[00:24:19] Speaker 02:
We know that Dr. Curtis just in May, just a few months earlier,

[00:24:23] Speaker 02:
certified him and now without even looking at his records or talking to his doctor or taking, you know, any other kind of objective qualification like maybe evaluation by a third party physician for any kind of addiction concern, they just decide that he's decertified.

[00:24:47] Speaker 02:
And the difficult part of this is that, I mean, I think it's kind of ironic that Patel argues that somehow Mr. Gonzalez didn't exhaust 1046 when he's not given any of the provisions of that regulation.

[00:25:04] Speaker 02:
He has 10 days.

[00:25:06] Speaker 02:
That's it.

[00:25:07] Speaker 02:
They've sat on the HRP for months, never prepared the report, never took it to DOE, never gave him a chance there.

[00:25:15] Speaker 02:
And yet they want to say, well, Mr. Gonzalez, it's your fault because you didn't appeal and you could have.

[00:25:22] Speaker 02:
And the bottom line is I don't think this is about what DOE would or wouldn't have done.

[00:25:27] Speaker 02:
This is about what Battelle did.

[00:25:30] Speaker 02:
Without any objective evidence, they just decided that he was a drug addict.

[00:25:36] Speaker 02:
And that is not allowed under the ADA.

[00:25:39] Speaker 03:
I think it is.

[00:25:39] Speaker 03:
I think that what they could have done is decide they have a real security risk, and they could have

[00:25:45] Speaker 03:
Completed the HRP process and that would require DOE making the decision right yes again They don't have to wait for an accident, and that's why I want to be clear to say that it seems to me more limited than what you're describing But they could have gone through the 1046 process, but that requires a true evaluation and accommodation and

[00:26:07] Speaker 03:
That's a question.

[00:26:08] Speaker 03:
Am I misunderstanding this?

[00:26:10] Speaker 02:
No, I think you understand it correctly.

[00:26:12] Speaker 02:
HRP would allow, I mean, in both regulations DOE reserves its right to be the final decision maker.

[00:26:21] Speaker 02:
And the problem that we have under 1046 is without him getting notice of his appeal rights, that 10 days, of course, was long gone by the time he ever knew about it.

[00:26:32] Speaker 03:
What's your best argument that Egan does not apply to 1046?

[00:26:37] Speaker 02:
My best argument is they're a private contractor, just like the amount of private contractors that contract with the government.

[00:26:46] Speaker 02:
I mean, this exception would swallow the rule.

[00:26:49] Speaker 02:
And I think Beatty or Beatty, the Boeing case, I think is the single exception where a private employer came under that Eagan rule.

[00:27:01] Speaker 03:
And that was... But that was an express delegation.

[00:27:04] Speaker 02:
It was an expressed allegation because they had a specific contract to allow them to do the security clearance.

[00:27:10] Speaker 02:
Now, we do have the HRP cases that fall under Egan as well because, again, DOE has reserved that right and... But if an agency is making a security clearance determination, you would agree those are not justiciable claims?

[00:27:26] Speaker 02:
I would agree.

[00:27:27] Speaker 02:
Okay.

[00:27:28] Speaker 02:
I do think there's a narrow point here because I think you could have a situation where the contractor still had a regarded as claimed and they submitted false information.

[00:27:38] Speaker 02:
And I'm really talking about the Zanalee exception where you might have a situation that wouldn't require that you challenge the agency

[00:27:49] Speaker 02:
But if you're going to challenge the merits of the agency decision, then I would agree, yes, Egan applies and would bar it.

[00:27:56] Speaker 03:
I haven't really let my colleagues get in a word edgewise.

[00:27:58] Speaker 03:
Do you have questions?

[00:28:00] Speaker 03:
I don't think so.

[00:28:01] Speaker 03:
Is there further argument?

[00:28:02] Speaker 02:
Yeah.

[00:28:03] Speaker 02:
The only thing that I wanted to address, too, was just the case that we submitted in our 28-J letter on the exhaustion, because I think that case is,

[00:28:14] Speaker 02:
really important in terms of not inferring some kind of exhaustion requirement or looking to see the kind of remedies that are available under the two different statutory schemes.

[00:28:26] Speaker 02:
We received your 28-J.

[00:28:27] Speaker 02:
Okay.

[00:28:28] Speaker 02:
Thank you for that.

[00:28:29] Speaker 00:
I'll take you back to your 1046 argument for a second.

[00:28:32] Speaker 00:
Yes.

[00:28:34] Speaker 00:
Why can't the contractor make a decision

[00:28:37] Speaker 00:
that the employee is a drug addict and that that is a valid basis upon which to discharge it or, yes, to discharge him.

[00:28:52] Speaker 00:
Are you claiming that that is pretextual in this case?

[00:28:56] Speaker 02:
I am arguing that it's pretextual in this case.

[00:28:58] Speaker 00:
In cases where they have kept people on oxycodone in their employ even though they have the same

[00:29:07] Speaker 00:
or greater amounts of oxycodone in their blood than did Gonzalez?

[00:29:13] Speaker 02:
The only other probably situation we have would probably be employee 165, that his levels when he... But in 165 they went through the HRP process with DOE.

[00:29:28] Speaker 00:
So what you're saying that the failure to go through with the DOE process as they did in 165 is an indication of pretext for their use of 1046.

[00:29:41] Speaker 02:
Yes.

[00:29:42] Speaker 00:
Okay, I've got you.

[00:29:43] Speaker 02:
Yes.

[00:29:44] Speaker 02:
Anyway, at the end of the day, we think this clearly is a pretextual.

[00:29:49] Speaker 00:
Was there any evidence that you can remember as to the explanation by Battelle why they did not use the DOE process under HRP and only 1046?

[00:30:00] Speaker 02:
They did not explain it at all.

[00:30:04] Speaker 00:
And have they explained it in their briefing here?

[00:30:07] Speaker 02:
I don't believe so.

[00:30:08] Speaker 02:
The only thing that they've explained.

[00:30:09] Speaker 00:
I'll ask Battelle.

[00:30:11] Speaker 02:
They have, you know, admitted that those two, HRP and 1046, are inextricably intertwined, I think is the words that they used.

[00:30:20] Speaker 02:
And so, by not following that process, it really limited Mr. Gonzalez's ability to contest it.

[00:30:26] Speaker 03:
Before you leave the microphone, on the reinstatement, the briefing suggests that part of the claim may be moot, that your client is back at work, but I don't know.

[00:30:35] Speaker 02:
He is back at work, but he was reinstated, but they have now,

[00:30:41] Speaker 02:
Disqualified him under 1046 again, but at least this time he got the appeal rights and so we're going through that process Okay, so I'm not going to go there because that's beyond our record I was asking about whether reinstatement here is moot.

[00:30:54] Speaker 03:
Is your position?

[00:30:56] Speaker 03:
That's a yes on this case.

[00:30:57] Speaker 02:
It is.

[00:30:58] Speaker 02:
Thank you.

[00:30:58] Speaker 03:
Okay.

[00:30:58] Speaker 03:
That's what I needed to understand anything further judge aside I guess not.

[00:31:03] Speaker 03:
Thank you

[00:31:21] Speaker 00:
Are there any other cases besides Gonzalez where Battelle has disqualified or fired an employee who's on oxycodone without going through DOE?

[00:31:36] Speaker 01:
So in the other comparator that they pointed to, Osley, that's briefed, he was taken off HRP and decertified under 1046.

[00:31:47] Speaker 01:
Both.

[00:31:47] Speaker 01:
And then the reason he was allowed to stay an employee at Bataille is because he had been injured on the job and was given specific workplaces.

[00:31:55] Speaker 00:
I don't think you're answering my question.

[00:31:56] Speaker 01:
Oh, I'm sorry, Your Honor.

[00:31:58] Speaker 00:
My question is, are there any other cases where without a DOE, without a report to DOE, without DOE action, the employee was terminated for oxycodone use other than Gonzales?

[00:32:13] Speaker 01:
Osley Osley was take he was both taken HRP was taken off and 1046 So and they do and it was submitted to DOE.

[00:32:23] Speaker 00:
I think that that's Judge Bayes question so I concentrate on 1046 forget you we okay any other employees who were discharged solely on a 1046 and

[00:32:38] Speaker 00:
determination because of the use of oxycodone and were not reported to DOE.

[00:32:44] Speaker 01:
Under HRB.

[00:32:46] Speaker 01:
Yeah.

[00:32:46] Speaker 01:
And not Osley.

[00:32:48] Speaker 01:
I don't know the answer to that, Your Honor.

[00:32:50] Speaker 01:
All right.

[00:32:50] Speaker 01:
I can submit supplemental briefing if you'd like it.

[00:32:53] Speaker 01:
I would like to point out that they do run in parallel.

[00:32:56] Speaker 01:
So these are evaluations that are taking place at the same time.

[00:33:00] Speaker 00:
They could have run in parallel with Gonzalez.

[00:33:02] Speaker 01:
They were also, I'm sorry.

[00:33:03] Speaker 00:
They could have run in parallel with Gonzalez.

[00:33:06] Speaker 00:
You could have treated him the same way as 165 or Osley.

[00:33:10] Speaker 01:
They were running in parallel.

[00:33:11] Speaker 01:
They began talking about 1046 as early as July while the HRP discussion was going on.

[00:33:17] Speaker 01:
It is a complicated regulatory scheme, so people were confused, especially Mr. Gonzalez.

[00:33:23] Speaker 01:
One, he was having these discussions.

[00:33:25] Speaker 01:
But to say that he wasn't evaluated under 1046 is simply incorrect.

[00:33:29] Speaker 01:
It's not that they were going through HRP and then quickly switched.

[00:33:33] Speaker 01:
They had the same evaluation that Dr. Clark did, which is what they take issue with.

[00:33:43] Speaker 01:
The same cycle evaluation is done in both instances.

[00:33:46] Speaker 01:
They don't send employees to do the same drug testing,

[00:33:49] Speaker 01:
medical certification, they are all happening in parallel.

[00:33:52] Speaker 03:
So to say that they're... So, Counsel, now you're way over your extra time.

[00:33:56] Speaker 03:
No, no.

[00:33:56] Speaker 03:
If you could just wrap up.

[00:33:58] Speaker 03:
I think we understand that point, and it's in the briefing that the same was missing.

[00:34:02] Speaker 01:
Okay.

[00:34:02] Speaker 03:
Thank you.

[00:34:02] Speaker 03:
So we got that.

[00:34:03] Speaker 03:
But if you could wrap up.

[00:34:04] Speaker 01:
Yes.

[00:34:04] Speaker 01:
I'd also like to say that Mr. Gonzalez was provided with the information about how to do an independent review.

[00:34:12] Speaker 01:
That's at 8ER1329.

[00:34:14] Speaker 01:
That's not accurate.

[00:34:15] Speaker 01:
And also in our reply, we discussed the fact that Bataille never

[00:34:19] Speaker 01:
never conceded that it was because of HRP that we terminated his employment that was because of 1046.

[00:34:29] Speaker 01:
So with that, I will rest on my briefs and thank you for your time today.

[00:34:32] Speaker 03:
Thank you for your careful briefing, both of you, and for your argument.

[00:34:35] Speaker 03:
We'll take that case under advisement and stand in recess today.