[00:00:01] Speaker 03:
Well, good morning and welcome to the Ninth Circuit. I'm Judge Nelson, and it's a pleasure to be joined by Judge Hawkins and Judge Clifton. We want to welcome counsel, and we're grateful to our court staff who has consistently made it convenient for us in another week without any hiccups. We ask that during an argument, just pay attention to your time. Let us know if you want to reserve time for rebuttal. And then sum up as the time's expiring. And we've got two cases set for argument. We've submitted some others.

[00:00:34] Speaker 03:
Luxton v. Washington State Department of Veteran Affairs, case number 25-3542.

[00:00:43] Speaker 03:
And Mr. McLaughlin, I think.

[00:00:45] Speaker 04:
Thank you, Your Honor. Good morning, Your Honors. May I please the court?

[00:00:50] Speaker 04:
My name's Dennis McLaughlin. I'm with the Western Washington Law Group, and I represent Dr. David Luxton, who's also a major in the Air Guard and the Civil Air Patrol.

[00:01:03] Speaker 04:
We're asking this court today to reverse the vacate the decision by the district court that granted summary judgment in favor of the Washington Department of Veterans Affairs and to reverse this and to remand it back to them, to the court, with the instructions to enter a partial summary judgment in favor of the plaintiff or the appellant in this case and to have proceedings on just a few issues.

[00:01:35] Speaker 04:
And that's the first thing I'd like to clear up for you is to say why this case is different and how we're going to expedite and clean up some of the causes of access.

[00:01:45] Speaker 03:
The biggest issue is Title VII, right? The biggest issue. In fact, that's the only merits issue, isn't it?

[00:01:51] Speaker 04:
That's the only merits issue, exactly. And that has the federal gravitas to send it back. A lot of the constitutional claims, I think, are not going to be – they shouldn't be raised. The only ones that were going to – On appeal, they shouldn't be raised?

[00:02:07] Speaker 03:
Well – You didn't raise – I thought it was only Title VII.

[00:02:10] Speaker 04:
Well, it was that and the technical dismissal of the federal claims. because they named the agency and not the individual director. That's the other issue.

[00:02:21] Speaker 01:
They did name the agency and not the individual, right?

[00:02:24] Speaker 04:
Yeah, they named the agency, which they shouldn't have done, and not the individual, but the agency got the notice, and under Kentucky v. Graham, that's the important part. They're the real party in interest on the official capacity suit.

[00:02:40] Speaker 01:
The law is pretty clear that you can't sue the state Oh, I agree. And at what point was there a request to amend that?

[00:02:47] Speaker 04:
Oh, it was in the response to the summary judgment.

[00:02:50] Speaker 01:
Which is well after the time when...

[00:02:53] Speaker 04:
Oh, I agree with your honors, but at the same point, I do look at the liberality of amendments, even if they're not requested.

[00:03:05] Speaker 03:
Yeah, but we have to find abuse of discretion, and that's a tall order. I mean, are there cases that say that it's an abuse of discretion to deny amendment after discovery closes through an improper vehicle? What's your best case for that?

[00:03:20] Speaker 04:
Well, I think Bacon v. Woodward, Your Honor, just to be honest with you.

[00:03:23] Speaker 03:
Yeah, everybody loves that case, at least when I'm on the panel.

[00:03:28] Speaker 04:
Well, you know, to be honest with you, that one is cited for that proposition more than any other one. Even if it's not requested, courts should look at it. And if you think about it, we should allow trials on the merits. And that's why I want to focus.

[00:03:48] Speaker 03:
Yeah, but I mean, counsel, and I don't, honestly, I'd have to go back and look at Bacon on this specific issue, but... Discovery closes. You do it in a summary judgment motion. Like, we've got to have some normalcy here or else we're going to drag these things. I mean, you're talking about reopening. Fine, go to trial if you can get to trial. But don't extend it another two years once you're ready to go to trial.

[00:04:11] Speaker 04:
And I'm not suggesting that. That's what I want to talk about, Your Honor, is because— You don't think more discovery will be required? It shouldn't be. And here's the reason why there's no prejudice. Because the agency, which is the real party in interest, if you name a person in their official capacity.

[00:04:26] Speaker 01:
You're undoing decades of law by saying, well, it really doesn't matter. We can name the state and we'll just convert it later. Is there a case that holds that proposition?

[00:04:38] Speaker 04:
No, the only thing I can tell you. Maybe we should get to the merits.

[00:04:41] Speaker 01:
Yeah. I like this.

[00:04:42] Speaker 04:
OK, let me let me just get to the merits, because this is why this case is different.

[00:04:47] Speaker 03:
So, OK, go ahead. All right.

[00:04:49] Speaker 04:
Let me let me get to why this case is different. First of all, this is not Dr. Luxton is not a first responder. He there's a disputed issue of fact as to what his truly essential job functions were.

[00:05:00] Speaker 01:
Who do we look to to define the job function? The employee who's had the job for a little more than a month or the employer trying to anticipate what the needs of that position that they've hired are? I mean, the description talks about site visits. The description talks about in-person meetings.

[00:05:19] Speaker 04:
That's true, Your Honor, but in this case, that's one of the peculiar parts of this case. Dr. Luxton, as he laid out about his experience, he is the telehealth professional.

[00:05:32] Speaker 04:
He's the one who brought telehealth. His unit was the first to bring telehealth to Army veterans. He was the one who brought telehealth for the True Blood and the DSHS. He was the guy who got that started so they could do the remote evaluations. He got hired on here. to be the guy who is going to coordinate telehealth.

[00:05:55] Speaker 01:
And that doesn't mean that the job is exclusively telehealth. The job description requires site visits.

[00:06:03] Speaker 04:
It requires site inspections, but as he said in his declaration— The word used in the description is site visits. Right.

[00:06:10] Speaker 01:
That's what it says.

[00:06:12] Speaker 04:
It's there, isn't it? The July 1, 2011 version of that job description does say site visits.

[00:06:19] Speaker 03:
Well, you act as if the July version might not be the right—I mean, isn't that what we looked at?

[00:06:23] Speaker 04:
Well, we're talking about reasonable accommodations, too, Your Honor.

[00:06:25] Speaker 03:
Okay, so that's where I wanted to go. Okay, good.

[00:06:29] Speaker 03:
The district court ruled on both issues and the district court said they offered to reassign.

[00:06:37] Speaker 03:
They told him how to apply for reassignment and he never did it.

[00:06:41] Speaker 04:
They didn't offer him a reassignment.

[00:06:43] Speaker 03:
Well, they, they told him he would be eligible for reassignment. Now I understand that this is murky because the, you know, the facts aren't exactly detailed here, but what, They told him you could apply for reassignment, do it within seven days, and he didn't do that. So why isn't that – I mean that doesn't sound like a – I believe your argument is going to be it was futile and everything suggests that it would have been futile to apply for reassignment.

[00:07:14] Speaker 04:
That's one argument, but there's even a better argument in my opinion. And it's got to be that in September – 14th, before he went on medical leave, he asked them what the what the what the accommodation policy is. They sent him the medical accommodation policy saying we don't have one for religion. We're using this one. They sent that again to him on October 6th. That policy says it's your appointing authority that makes the determination right. regarding accommodations.

[00:07:45] Speaker 04:
He had that conversation with his appointing authority on October 5th, right after he got the notice. And she said, there's nothing that can be done. The decision's made. I'm posting your job.

[00:07:56] Speaker 03:
Wait a second. Is that exactly what was said? I had understood what she said is, I don't have anything to do with the reassignment.

[00:08:05] Speaker 04:
No, that's not at all. She said the decision's already been made. And I'm posting your job. That's why she called him is to give him the heads up that she was posting his job.

[00:08:15] Speaker 01:
That's not what I recall either. So where in the record is it?

[00:08:20] Speaker 04:
well articulated the way you just said it's in, it's in, it's in Dr. Luxon's declaration. And in fact, there's a whole, there's a whole litany of him saying that decisions already been made. I had nothing.

[00:08:35] Speaker 03:
I think you're okay. So we might be talking past each other because I think it is true that they said, we cannot accommodate you in your current job, uh, But then they said you can't apply for a reassignment. And so we've got all this case law that says, well, reassignment can be okay in certain circumstances. Well, here we don't know because he never applied. They said here's – apply, seek reassignment by sending a letter to – or an email, had to email a contact at Human Resources, Mrs. Dredger, no later than seven days from the date of this notice.

[00:09:16] Speaker 03:
And he didn't do that. That's undisputed, right?

[00:09:19] Speaker 04:
He did not do that. But if you let me, I want to pull his declaration so we get the exact language of what his testimony was as to his conversation with Colonel Forbes.

[00:09:30] Speaker 03:
You can, except that my point is I'm not sure it matters because the question, it seems to me, for reasonable accommodation is, They had made a determination that he couldn't do his current job remotely. I think you're going to come up with a declaration that says he heard that, and I don't think there's a disagreement on that. The question is, is reassignment a reasonable accommodation?

[00:09:57] Speaker 04:
Let me answer that first of all by just saying he definitely disagrees that he couldn't be accommodated in his current job, and he bases that on three things.

[00:10:07] Speaker 04:
I want to be – that's the first point of contention. That's what separates this case from a lot of the other cases that you've heard. I watched you on Tuesday, obviously, and I know that you've got a lot of these cases churning through. This one is different. He does testify, and Judge Hawkins makes a good point. Why should we listen to the guy who's been on the job for five or six weeks as opposed to the – At that time, the assistant director, now director. I understand that. But that goes to the weight of the evidence.

[00:10:38] Speaker 04:
He definitely says he could do the job 100%.

[00:10:40] Speaker 01:
As he defines the job. But the job description, among other things, calls for site visits. You don't do that by telemedicine.

[00:10:49] Speaker 04:
Right. But you understand that in March of 2020, the governor ordered everyone to stay home.

[00:10:58] Speaker 01:
Oh, yeah. And we stayed home. I went months having oral arguments wearing shorts and no long pants. I bet you liked that. The good thing of being in Hawaii, I could do that. Not shoes either. But that was the time. And as developments unfolded, things that were done at home could be done on site, and on site was preferable. So we are here now, and we came back as soon as our judgment said we could.

[00:11:32] Speaker 01:
I don't understand how He's supposed to be the person who can define what his job requires when it's purely a matter. I mean, it's clearly the employer who thinks that site visits are supposed to be part of the job. Indeed, the site visit language comes from saying it's the primary of making contact, primary way of making contact and supervising the counselors and so forth.

[00:12:00] Speaker 01:
And a department that has lost a good number of residents of those veterans' homes to COVID. So they're trying to figure out how to deal with these two things.

[00:12:11] Speaker 01:
And for you to tell me that he thinks he can do it entirely remotely, but the department doesn't, I'm not sure why it is we're supposed to listen to his preferred route if the department thinks the job needs to be done at least partially in person.

[00:12:27] Speaker 04:
Thank you, Your Honor. I agree. And you kind of make my point, and I don't really... I look forward to hearing how. So if I ask a question, it's rhetorical, okay? Sure. So if you have a religious conviction that makes you opposed to taking the COVID-19 vaccine, in this case, it was admitted in the pleadings that he had a sincerely held religious belief that he... He was given a religious exemption.

[00:12:55] Speaker 01:
That's not at issue here.

[00:12:57] Speaker 04:
Right. So you said, well, we came back when our judgment told us that it was okay to come back. And, you know, the requirement was in order for you to come back, you had to have a primary series of the COVID-19 vaccine.

[00:13:13] Speaker 04:
He, for religious reasons, was opposed to getting the COVID vaccine because of his religious beliefs, and they're sincerely held. So the question is, did the department have a duty to accommodate that? And the answer is, if they've been accommodating it since March of 2020.

[00:13:31] Speaker 01:
Not a dispute that they did. The question is, does doing so impose undue hardship?

[00:13:38] Speaker 04:
Well, first of all, all exemptions, whether they're medical or whether they're religious, according to the OFM guidelines, which they followed, was only good for 60 days. So he was only asking for a 60-day exempt and see where we're at then, see what the situation is. It's not a permanent deal. He certainly could be doing it now. It was just a short term.

[00:14:04] Speaker 04:
It was short term to see what was happening. That's what we were all doing back then. We were seeing what was happening because I didn't leave the house. I was scared. You were scared. Everybody was in uncertainty. And so was the department. And if you have a religious conviction on that job requirement, it is our contention that You have to accommodate religion.

[00:14:27] Speaker 03:
Well, so I don't – nobody I think disagrees with you. You're just restating the law. But of course, as you know, the devil's in the details. And the question I have is when they said we can reassign you and he doesn't apply for the reassignment – why does he then get to come in and say, well, you didn't reasonably accommodate me? Well, they don't know. I mean, we assume that we assume there's a lot of like anecdotal evidence that maybe they couldn't reassign him, but he never applied for it.

[00:15:04] Speaker 03:
And why can't we set a law or a rule that says, look, when they say we might be able to reassign you, you got to go through the process. We do that with a whole series of, I mean, prisoners, we tell them that you got to exhaust, the administrative requirements. Why can't we tell religious objectors, you got to do the same thing. And maybe you're right. Maybe they couldn't have accommodated them. And then you might've had a claim, but you didn't email HR. That's not a big burden.

[00:15:36] Speaker 03:
You didn't email HR. You didn't put in your resume and that was what they told you to do.

[00:15:41] Speaker 04:
Thank you, your honor. I'd like to just challenge you just a little bit on that. He just got hired in September. They had his resume. That wasn't – they didn't – okay? That is a technical – That's the way he's fighting this.

[00:15:54] Speaker 03:
Did he email HR and ask for a reassignment?

[00:15:57] Speaker 04:
He emailed – well, it's not – No, he didn't. Well, it says – if you read the – The answer is no, he didn't. No, he didn't. But he asked his appointing authority.

[00:16:08] Speaker 03:
That's not what they told him to do. And his appointing authority said, I don't make the decision on reassignment.

[00:16:14] Speaker 04:
No, but that's what the – they gave him a written policy that says she is the person who makes the final decision. That's what I'm trying to say.

[00:16:24] Speaker 03:
Well, look at that, but I assume what it says is she'll make the final decision.

[00:16:27] Speaker 00:
You're assuming that if he had applied, the request for accommodation would have been denied?

[00:16:35] Speaker 04:
Your Honor, they didn't accommodate one exemptor. Not one exemption. Not one of them. Nobody. How many are we talking about? Twenty-nine.

[00:16:45] Speaker 04:
Not one person was accommodated.

[00:16:49] Speaker 04:
Zero.

[00:16:50] Speaker 00:
Accommodated for the job that they're in or for other potential jobs.

[00:16:58] Speaker 04:
The way the system worked, according to the letter that was written, was you can apply and you can't get a promotion. You have to stay at your level or lower, but it's any available job.

[00:17:14] Speaker 04:
within the department, and then it goes statewide.

[00:17:17] Speaker 00:
Did he ever assert in the record that the reason he didn't apply for accommodation was that that would be futile?

[00:17:27] Speaker 04:
He did assert that. He went to his, both on September 14th when he asked for the policy, and again from HR, they sent him the policy on October 6th. And the policy clearly states that the appointing authority is the person that makes the final determination as to any accommodation.

[00:17:50] Speaker 04:
He went to his appointing authority to request an accommodation. And she said, the decision's already been made. I'm posting your job. But the answer is no.

[00:18:02] Speaker 03:
But, counsel, there's two decisions. One decision is, can you stay in your job? And the other is, can you be reassigned?

[00:18:09] Speaker 04:
Well, no.

[00:18:11] Speaker 03:
That's the crux of this.

[00:18:14] Speaker 03:
You're saying, no, I don't want reassignment. That's not a reasonable accommodation.

[00:18:19] Speaker 04:
No, we're not.

[00:18:21] Speaker 03:
No. You are. You're saying that they should have let him stay in his job and work remotely. No, no, no. I'm not saying that.

[00:18:26] Speaker 04:
Okay. I'm sorry, Your Honor. That's why I wanted to— You said earlier in the argument. Well, I'm saying, A— First, under the 29 CFR 16052, which is really important, it says that you have to see if you can accommodate them in their initial position. And then if you can't, you consider reassignment to a lateral transfer.

[00:18:50] Speaker 01:
And you're citing to us a statement you cited more than once. I'm posting your position. They have concluded that his inability to be available in person, at least in times...

[00:19:03] Speaker 01:
did not present an accommodation in his current position. That's not the same as saying, by contacting HR or doing something else, I seek moving to a different position that I can do remotely. And so we have another example of ships passing in the night. I don't hear something that says...

[00:19:28] Speaker 01:
I seek reassignment as distinguished from I want my existing job.

[00:19:34] Speaker 04:
Okay, let me be real clear about how the declarations work, because this is now turning out to be a very, very crucial issue.

[00:19:43] Speaker 04:
He filed the declaration in support of his motion for summary judgment. And it says, I talked to Colonel Forbes, which is the appointing authority, right? And I said...

[00:19:54] Speaker 04:
Is there any kind of accommodation? I want to stay working here, including reassignment.

[00:20:02] Speaker 01:
That's not the person to whom the question is supposed to be directed, but it is an official within the agency.

[00:20:07] Speaker 04:
But it is according to their written policy.

[00:20:09] Speaker 03:
But he got a letter that said email HR.

[00:20:11] Speaker 04:
But he also got a written policy that says this is what you need to follow that says that the appointing authority has the final determination.

[00:20:20] Speaker 04:
That's what I'm trying. That's what I'm that's. And he got that on September 14th saying this is the policy we're following. He got it again from H.R. on October 6th in response to the email he sent them on October 5th. He got the same policy.

[00:20:36] Speaker 04:
And so he's talking to the appointing authority and he says, I want to talk about accommodations, including reassignment.

[00:20:44] Speaker 03:
No, I think that's the question. And that's why I'm trying to pull this up, because I don't know why he's talking about reassignment to his supervisor. Why would his supervisor know about reassignment? Because she's the one who makes the ultimate.

[00:20:57] Speaker 04:
According to the policy.

[00:20:59] Speaker 03:
Come on, counsel.

[00:21:01] Speaker 03:
You've got to be the supervisor has no idea whether he can be reassigned somewhere else. The supervisor knows whether he can be accommodated in the job he's serving in. That may be true. But I'm sorry. You're being a little bit obstinate in answering the questions here. He should have gone to HR, and he didn't. Just acknowledge that.

[00:21:26] Speaker 04:
In hindsight, that is obviously true, Your Honor. I'm not trying to pick a fight with you, but I am saying that when you look at the written description that they sent him, it does say – The appointing authority, for better or for worse, that's what it says.

[00:21:44] Speaker 04:
And it was given on October 6th and September 14th.

[00:21:49] Speaker 04:
Okay.

[00:21:50] Speaker 03:
Well, we've taken you over. I wonder if we should give you some time for rebuttal. And I want to go look at these declarations because I don't think they're as clear as you're representing them, that he talked to his supervisor about reassignment.

[00:22:05] Speaker 03:
I think that's a very important key point. I want – during the break, I'd like you to come up with the declaration and cite me that specific statement. where he talked to his supervisor about reassignment.

[00:22:17] Speaker 04:
I will do that because I see that that is going to be a quintessential issue.

[00:22:20] Speaker 03:
Okay.

[00:22:21] Speaker 04:
I'm sorry if I came across as obvious.

[00:22:23] Speaker 03:
No, no, no. I mean, look, we're trying to nail this down, and I think we're not getting the answer that we need, and hopefully you can provide that. Thank you.

[00:22:34] Speaker 04:
Thank you.

[00:22:57] Speaker 03:
Go ahead.

[00:22:57] Speaker 02:
Good morning, Your Honor. Kevin Kennedy, Special Assistant Attorney General for the Appellee.

[00:23:05] Speaker 02:
As three court of appeals have held where an employer offers a reasonable reassignment process and an employee without good reason fails to participate in that process, the employer is entitled to judgment on the Title VII claims. That's precisely what happened here.

[00:23:20] Speaker 03:
And that's what the district court said. So let's get into where we just got kind of the trains wrecking on the railroad here.

[00:23:32] Speaker 03:
He claims that there's a policy, a written policy that gave different advice than the letter. I don't think he has disputed that he got a letter that said go to HR, but the policy said reasonable accommodation is handled by your supervisor. Why isn't that a problem?

[00:23:53] Speaker 02:
A few reasons, Your Honor. First, I don't see that argument in Luxton's briefs before this court. He doesn't quote any policy directing him to his supervising authority to deal with accommodations. So to that extent, the argument seems to be forfeited. Furthermore, the letter is crystal clear, the one that he did receive, the one that we quote in our brief and the one that's in the record. And it says, this is the reassignment process. Your reassignment, your HR representative is Ashley Drescher.

[00:24:24] Speaker 02:
Email her within a week. Send your resume to express interest in reassignment, and we'll look for reassignment positions with you. Dr. Luxton did respond to that email, but not to request reassignment. He asked a variety of other unrelated questions about the accommodation process.

[00:24:38] Speaker 00:
Is it possible that he was confused between the difference between accommodation and reassignment?

[00:24:51] Speaker 02:
The letter is quite clear on this. It says that the only accommodation that the department has found would be a reasonable accommodation.

[00:24:59] Speaker 01:
After we've heard lots of cases, it's easy for us to divide between qualification for the exemption and determination of whether your current position can be fit with that exemption and the possibility of being moved to a different position.

[00:25:20] Speaker 01:
it's not so clear that that was on the table as a given for everybody at the time. I look at the discussion and I have some of the same questions that Judge Nelson has raised, but I also have, you know, if you've got a conversation going on, he makes clear his desire to stay with the department. He may not have pursued the specific reassignment to a different position, but and the way the letter is spelled out.

[00:25:51] Speaker 01:
But the department is capable of communicating internally as well. And so it does get a little murky in terms of what he's thinking about and how he's trying to pursue it. So it would seem harsh to erect a rule, and I recognize that some courts appear to have adopted it, that says, follow this to the letter of the letter or else.

[00:26:17] Speaker 01:
When, in fact, there is some degree of ongoing dialogue, why is it we should erect such a strict wall that if you don't actually follow the path laid out here, you're out?

[00:26:31] Speaker 02:
A few reasons, Your Honor. First, the letter is quite clear on what the next steps would be. And Luxton indisputably did not follow those clear directions.

[00:26:41] Speaker 01:
But that's for reassignment to a different position. He was still making the contention he could do his existing position.

[00:26:49] Speaker 01:
And we didn't want to abandon that proposition. So is he supposed to take two different paths at the same time? Understandably, in retrospect, the answer is probably yes. Was that clear? evident at the time in question. I mean, part of the problem, we're all trying to send our minds back to what it was like five years ago, times of uncertainty. Is it really so unreasonable for an employee to think that, well, I'm trying to talk my way back into my, or explain why my current position should be available, but I'm willing to take plan B if that's what is all that's available?

[00:27:29] Speaker 02:
All of the accommodations for staying in his current position, as the department has demonstrated, would have imposed an undue hardship on the department. And so we have our two separate affirmative defenses here. There's the offer of a reasonable reassignment process, and there's separately the affirmative defense that accommodating him in his position would have represented an undue hardship on the department.

[00:27:52] Speaker 00:
If we conclude...

[00:27:56] Speaker 00:
that the district court was correct in concluding that it would impose an undue hardship on the agency. Do we need to get to reasonable accommodation?

[00:28:08] Speaker 02:
No, Your Honor, because the only accommodations that Luxton really sought were accommodations in his job, telework. masking, distancing, and the department has demonstrated that all of those accommodations that he sought would have imposed an undue hardship on the department. In what way? Luxton's title was the Director of Counseling and Wellness Services.

[00:28:33] Speaker 02:
As the description of his job made clear, as well as Director Puente's declaration, it was a core function of that job to provide oversight of the contractor's facilities throughout the state. That required site visits. to supervise those contractor facilities, he had to walk up and down the ramps. He had to go into providers' rooms. That would put him in direct contact with the department's vulnerable clientele, the veterans.

[00:28:56] Speaker 03:
Wait, why would that have put him in contact with the veterans? I mean... So the other cases that we have are like firefighter cases or, you know, doctor cases. This one does seem different. Now, I'm not saying you can't win on undue burden, but I'm not sure Peterson and Williams and some of these and, you know, other cases control it because it does seem like his position was more of a background.

[00:29:27] Speaker 03:
Now, he might have had contact with the employees, right? But you say, oh, well, he would have been in contact with the vulnerable patients.

[00:29:37] Speaker 03:
I don't see why that's necessarily true. None of his job responsibilities included talking to the patients or interacting with the patients.

[00:29:46] Speaker 02:
I would take one exception to that.

[00:29:50] Speaker 02:
As Director Puente describes, part of his responsibilities were providing bereavement services in the veterans' homes in the case of a death by a veteran. And in that capacity... But he had to be there? He had to be there. He had to be at every bereavement...

[00:30:05] Speaker 02:
it's not appropriate to provide bereavement services through a computer screen. Was the department's reasonable determination?

[00:30:12] Speaker 03:
Oh, but he was the director. The director had to be at every bereavement service, or he had staff that he had to direct on who could be there?

[00:30:20] Speaker 02:
I mean... The record in this case indicates that he had to be at the bereavement services. Furthermore, his core function was providing oversight over the contractor facilities. And again, the record on this is quite clear that The primary way and the only way it could be adequately performed was by going to these contractor facilities. But that's a different question.

[00:30:38] Speaker 03:
Everybody now is trying to shoehorn everything in and say this is an undue burden because we had contact with vulnerable individuals. I'm pushing back on that because I don't think that the record supports that here.

[00:30:52] Speaker 03:
And now the record does support what you said, which is you're supposed to go to the facilities. But I'm not sure that just because you have to have an in-site visit to check on a facility that that is the same thing as these other cases that we've heard where you have to have contact with individuals.

[00:31:15] Speaker 02:
I direct your honor to 4ER 861 to 66 of the excerpts of record, which is Director Puente's declaration, which describes why and how Dr. Luxton's job responsibilities put him in direct and indirect contact with the department's vulnerable clientele, the veterans in healthcare facilities. I mean, and I'll just provide some color for that. You can imagine to make sure that the facilities are providing adequate services you would need to go into those facilities into the waiting rooms into the provider rooms and in that capacity you would be in direct contact with veterans with their families with other service providers and so that clearly demonstrates that the job entailed substantial contact with vulnerable populations.

[00:32:03] Speaker 02:
And the other, and the question, the legal question of Peterson and Williams is that where there is a realistic risk of increased COVID-19 health and safety costs, that that readily satisfies the undue burden standard. And here, We have the in-person contacts for the reasons that I've just described, and the evidence that COVID-19 was, the vaccine was effective, indeed the most effective remedy, and that the veterans are a particularly vulnerable population.

[00:32:37] Speaker 02:
They have significant comorbidities and face serious risks due to generally being an older population, and indeed this was borne out between October 2020 and Between February 2020 and October 2021, 35 veterans died in department's facilities. So in that context, the department was entirely reasonable in determining that.

[00:32:59] Speaker 03:
The problem with your argument here is that your argument is basically the model for why no religious exemption ever had to be granted.

[00:33:12] Speaker 03:
And that is a problem because I don't see our case law going that way.

[00:33:16] Speaker 02:
Respectfully, Your Honor, I disagree. There is, of course, a line where a person's job does not have significant enough in-person responsibilities, not enough contacts with vulnerable populations. But this is not your case.

[00:33:27] Speaker 03:
But he had no duty. Any contact with these populations was incidental. It was not required by his job.

[00:33:37] Speaker 02:
It was not – his job was not to treat patients, but his job, his core job responsibilities did put him foreseeably and sort of unavoidably in direct contact.

[00:33:48] Speaker 03:
He couldn't have visited during off hours. He couldn't have worn a mask when he went in. He couldn't have socially distanced for six feet. I mean we are on a very slippery slope here, and the position that you're taking is – If there's any chance that he would have come in contact with a vulnerable person.

[00:34:11] Speaker 03:
I mean, I could come into contact with a vulnerable person walking into a grocery store.

[00:34:15] Speaker 02:
I understand that, Your Honor, but your job is not to go into contractor facilities, health care facilities, and to inspect the level of care being provided. His job was to supervise these health care providers and make sure that they were providing adequate care to veterans. Yes. That is a health care position. It was a core feature of his job that he was going into these facilities and having direct contact with veterans. It's not some incidental contact unforeseen.

[00:34:46] Speaker 02:
And so to the extent that the court is concerned about drawing a line, I think it can draw the line safely beyond this case because here it was a health care position that required going into health care facilities and having direct contact With vulnerable populations.

[00:35:00] Speaker 03:
Can you give me the, you cited to 4ER, what was it?

[00:35:05] Speaker 02:
861 to 66.

[00:35:07] Speaker 02:
I know that's a bit of a range.

[00:35:10] Speaker 01:
The specific point you made is 863.

[00:35:16] Speaker 01:
Thank you, Your Honor.

[00:35:18] Speaker 01:
We live to serve.

[00:35:22] Speaker 01:
Let me ask you, as you heard on Wednesday, we were dealing with lots of different state departments. For some of them, we had statistics on the number of accommodations that could be made and the request for accommodations that were denied. Do we have any information with regard to this department?

[00:35:46] Speaker 02:
Yes, Your Honor. There were 78 total accommodation requests, and no accommodations were provided. But I take, Your Honor, to be asking about that in the context of the reassignment process.

[00:35:59] Speaker 01:
Well, yeah, because, I mean, I got to believe every department has back office operations. Somebody's doing the finances and wouldn't have contact and so forth. And I got two different paths here, so let me try to keep them separate.

[00:36:22] Speaker 01:
The fact that there were no accommodations granted does raise some concern as to whether the department applied too strict a standard. Were there no requests from people who actually were in the accounting department and didn't actually go out and deal with patients?

[00:36:43] Speaker 02:
So the record doesn't, I think, show one way or another on that question. With respect to undue hardship, I think it's an individualized inquiry. And with respect to Dr. Luxton, for all the reasons, I won't belabor them again, we think that the department has readily satisfied the showing here. With respect to the reassignment process, I don't think it gives any reason to doubt the efficacy of the reassignment process, because there's no evidence that of those 78 how many were offered reassignment as an option. There's no evidence that, you know, of the ones that were offered, how many pursued the Luxton route and decided to short circuit the process, and how many actually went through and applied for available positions.

[00:37:23] Speaker 02:
So it really doesn't sort of show one way or another whether the process was reasonable.

[00:37:28] Speaker 02:
So can I ask you about that?

[00:37:30] Speaker 03:
Because I think, I mean, we're going to hear on rebuttal and I want to hear his response, but I don't think that there was a request even to Dressler about reassignment. I'll be interested to hear what he comes up with, but his testimony was that he didn't ask about reassignment.

[00:37:49] Speaker 02:
That's correct. The deposition test.

[00:37:53] Speaker 03:
But there is this separate question about futility and Dressler does testify granted a year later that said, The department did not identify any positions at or below that pay range for which Mr. Lexner was paid at and which he qualified for that would allow for reassignment and allow for unvaccinated status. Why doesn't that create an issue that this would have been a futile endeavor? You know, so what we're doing is we're putting forward this this this, you know, procedural requirement email when we kind of all know what the end result was going to be.

[00:38:28] Speaker 03:
He was at a high enough level this wasn't going to work.

[00:38:32] Speaker 03:
Why isn't that a response to this?

[00:38:35] Speaker 02:
On that specific evidence, that evidence, as the district court, I think, quite rightly explained, it was a decontextualized excerpt of a transcript that we don't have. We don't even know in what context Drescher was making that statement. I thought she testified to that. She testified to that, but in what sort of hearing, we're not sure. We don't know whether what she's referring to exactly. Is it about the potentially available positions at the time that Luxton was terminated and didn't seek reassignment, or was it in a later context of him seeking filing an unemployment claim?

[00:39:09] Speaker 02:
So on that score, I don't think that evidence really goes one way or another. More broadly, to your point, The record doesn't show whether there were available positions because Luxton himself did not seek out and try and figure out whether there were available positions.

[00:39:26] Speaker 03:
I give you that. So there's two routes we could go. Well, the route we could go is, as you're advocating, he didn't ask, end of story. Okay, maybe. But we also create exceptions in other contexts for that requirement, for prisoners, for all of these others where we say, yeah, but if it was futile, then we're not going to require you to do that. And there is some suggestion in the record that it was – that that was really not a viable option.

[00:39:57] Speaker 03:
And so why wouldn't we – why – I mean I'm a little bit worried about the unintended consequences of adopting a rule like you say – Because there is some evidence here that makes it a little bit murky.

[00:40:09] Speaker 02:
The department's position is the rule should be this, where the employer offers a good faith reassignment process and the employee without good reason fails to participate in that process.

[00:40:25] Speaker 02:
then the employee's claim fails. There are two sort of exceptions built into that standard. There's the good faith exception. So if there's reason to believe that the employer's process was not offered in good faith, then I think there's a reason to send it to the jury or something else. And then if the employee had good reason for not participating in the process, again, it's not a clear judgment in favor of the employer. Neither of those are the case here.

[00:40:52] Speaker 02:
Your Honor, you've referenced evidence in the record indicating that this was futile. That evidence simply is not there.

[00:40:59] Speaker 03:
Well, he does say – I think this is his declaration – He said, I specifically asked, this is at 2ER239, he says, I specifically asked COL Forbes, now not his supervisor, I'm not sure where Forbes fits into it, about my reassignment options and how I could exercise them when I met with her on October 5th, 2024. So that's much later, I guess.

[00:41:29] Speaker 03:
That is confusing to me. She advised that the decision had already been made and there was nothing that could be done. I wonder if that's a wrong date. That wouldn't make sense that 2024.

[00:41:40] Speaker 02:
I'm not sure, Your Honor, and we can double check that.

[00:41:43] Speaker 03:
Are you aware of this?

[00:41:45] Speaker 02:
I'm aware of the declaration testimony, but again, he knew that Forbes had nothing to do with reassignment. What she's not saying is that there's no reassignment. But Forbes didn't say I have nothing to do with reassignment. She said there's nothing she can do.

[00:41:57] Speaker 03:
No, according to the declaration that the decision had already been made and there was nothing that could be done. I guess that's open to interpretation.

[00:42:07] Speaker 01:
Has anybody identified a position? Part of what I'm fighting through here, I hypothesize there's going to be an accountant someplace that works in the back office. He's not an accountant. He's a psychologist. Was there any attention, and maybe this is where his direct supervisor can speak, In terms of somebody who is a psychologist and whose field will be counseling and patient wellness, is it just the problem not that maybe there's another job in the department that somebody could do remotely, but this skill set, which seeks, who is a psychologist and is a counselor and supervising, that's a position that we don't know how to accommodate because Patient contact is inherent in the position.

[00:43:00] Speaker 01:
Do we have any – the record, as it turns out, doesn't speak to some of these questions. Is there anything that speaks at all to that?

[00:43:10] Speaker 02:
Each accommodation, each reassignment question is an individualized process based on the employee's particular qualifications and their fit for a particular role. And so to that extent, you know, there's really no evidence indicating that if Luxton had gone through the process, we don't know which way it would have gone. And I think where the employer has provided what is a good faith process, the onus shifts under this court's cases where the employer has provided initiated good faith efforts to accommodate an employee that triggers.

[00:43:44] Speaker 02:
the employee's concomitant duty to cooperate in good faith. And here, Luxton did not do that. Asking his supervisor, who was not on the letter with the clear instructions about reassignment, is not cooperation.

[00:43:58] Speaker 03:
Forbes' supervisor? That's my understanding. Okay, well, I thought Dreschler was the supervisor.

[00:44:03] Speaker 02:
Dreschler is the HR representative.

[00:44:06] Speaker 02:
Oh.

[00:44:07] Speaker 03:
Okay, I got it. I got it. Okay, well, this is interesting because this says he did. Okay, so this is a declaration where he said he did ask a supervisor about reassignment, which is interesting because that's different than his testimony under oath.

[00:44:24] Speaker 02:
So again, there is a clear conflict between his deposition testimony, and this is what the district court found, is that the deposition testimony makes quite clear that Luxton never requested reassignment from his supervisor. When asked in his deposition whether he requested reassignment, he said he asked for any accommodation. And then in the deposition testimony, when followed up and said, okay, what specific accommodations did you request? He listed numerous accommodations, telework, masking, distancing.

[00:44:54] Speaker 02:
He never once mentioned reassignment. So his later attempt, as the district court found, to contradict that earlier deposition testimony in an effort to create a genuine dispute of fact for summary judgment can't control. There's no genuine dispute of fact under this court's cases like Kennedy, and the district court made that sham affidavit finding.

[00:45:11] Speaker 03:
Okay.

[00:45:14] Speaker 02:
Thank you, Your Honor. We've let you go over. Thank you.

[00:45:16] Speaker 01:
You get paid overtime for this? No.

[00:45:23] Speaker 03:
We'll give you two minutes for rebuttal.

[00:45:30] Speaker 03:
So I think we've started to crystallize the question because you're citing to his declaration where his declaration says, I asked Forbes, the supervisor, about reassignment.

[00:45:43] Speaker 04:
Supervisor and appointing authority.

[00:45:45] Speaker 03:
Okay.

[00:45:46] Speaker 04:
Okay.

[00:45:46] Speaker 03:
But then go back to 2ER93 and the deposition testimony and your client said, no, I never asked about reassignment.

[00:45:56] Speaker 04:
It doesn't say that. You just didn't specifically address it. You said you talked about accommodations, but a reassignment is an accommodation. I mean. Hold on.

[00:46:06] Speaker 03:
I want to read it again because.

[00:46:11] Speaker 03:
Sorry.

[00:46:13] Speaker 03:
So you think that the deposition testimony is not inconsistent with the declaration?

[00:46:18] Speaker 04:
There was also in his original declaration that he filed in support of a summary judgment. He said, I discussed accommodations, including reassignment. And the court accepted that declaration. So we don't even have to go beyond that.

[00:46:32] Speaker 04:
But then he didn't accept the second declaration where he said, I specifically asked about reassignment because then I guess that crossed the Rubicon.

[00:46:41] Speaker 01:
Do you ever identify a position to which he could be reassigned consistent with the limitations he thought should be imposed?

[00:46:47] Speaker 04:
I did not, Your Honor, and that's the point I wanted to address. It's called burden of proof because the burden of proof under Ansonia, which is where we created this exception to having to prove to the Supreme Court, created the exception to having to prove undue hardship. And it says you have to offer a reasonable accommodation. A reasonable accommodation eliminates the religious conflicts and preserves the preserves the status they didn't offer an accommodation they offered a process that he'd be an accountant which could work in the back office i mean i'm having trouble figuring out given his qualifications and skill set what is it that he could do remotely entirely i'm glad you asked that question because it says in his job description his written job description says office back office that's your office environment It also says site visit.

[00:47:43] Speaker 01:
And it also says up to 100% telework. Up to. Up to. And during the time of COVID, we were all doing 100%.

[00:47:52] Speaker 01:
But that doesn't mean at a time when they can try to put people in contact with each other, they shouldn't try to do it.

[00:47:59] Speaker 04:
But this is his overall job description. Okay, and it says it can be done up to 100%? Up to.

[00:48:04] Speaker 01:
Up to is not the same as equals 100%. And that description says site visit. You haven't denied that. He tried to change it, but he didn't deny it. So how can I accept the proposition that he can do the job he wants? Entirely remotely.

[00:48:20] Speaker 04:
Because up to means that 100% telework is a possibility. And during the height of the pandemic, it was.

[00:48:27] Speaker 01:
But when you're past that point, why is it the department is required to accept somebody whose job description clearly anticipates travel? It says travel is required. You go to all these facilities. You make site visits. Right. Well, during the height of the pandemic, we're all staying home. They had to accommodate for that. But once, you know, shoots of green start poking up through the burned-out forest, and we've got ways to try to get people back in touch with doing the things that we want those people to do, why is it and what position is there for somebody with this skill set that can be entirely by telework?

[00:49:12] Speaker 01:
You haven't identified such a position. I have difficulty imagining such a position.

[00:49:18] Speaker 04:
Your Honor, again, this was not the job description for COVID. This was the overall job description that says up to. Now, I agree, it doesn't say 100% you work remotely all the time. It doesn't say that, right? But we know that it was ordered to be 100% remote since March of 2020 all the way through August 9th of 2021.

[00:49:42] Speaker 04:
And so they had operated for, you know, a year and a half plus with no site visits, with no travel. And we're all talking about an accommodation, which is an alteration to the essential functions of the job to accommodate somebody's religious belief. And that is what he was asking for, is just the accommodation to see what panned out. Now, in hindsight, we know that that ended in October of 2022, less than a year later.

[00:50:11] Speaker 04:
And he could have got – they could have won another year.

[00:50:14] Speaker 03:
Can I ask about this bereavement? There is this testimony that he needed to go into the family's homes or a declaration that he needed to go into the family's homes when there was – It doesn't talk about location. Oh, I guess that's right. So it could have been – I'd have to go back to it. At the facility. So, yeah, was that at the facility? Did he have to meet with them? Was he the only person who could do that?

[00:50:40] Speaker 04:
Absolutely not, Your Honor. You hit it right on the head. Was he going to go to Spokane one day and then he's going to go to Richland the next day? No, these are remote facilities.

[00:50:50] Speaker 01:
They don't die every day. They had 35 or 39 deaths over a period of longer than a year. So if they have two people dying at the same time in two cities, okay, I get it. Well, that's what we're talking about.

[00:51:02] Speaker 04:
But there's other people who die in veterans homes.

[00:51:04] Speaker 03:
Right. Like my client's mother. Well, how did they handle that during COVID?

[00:51:09] Speaker 04:
It's in the job description, Your Honor. He's got a case manager.

[00:51:13] Speaker 04:
He's got these level fives. He's got these level fours. He's got these level threes, all of whom he supervises. And he states and they could have they could have attended one of these. They did. They had crisis counselors at the sites. He testifies to that in his declaration. He goes, I ever since he left. the armed forces and he went into civilian he worked for the navy he is not in the beginning of his career he provided some counseling to veterans he designed the telehealth program he's not the counselor that provides direct care that's not as he has the credentials as a bureaucrat i understand all that i'm just i'm i i hadn't focused before on this bereavement part so i was trying to

[00:51:56] Speaker 03:
I think you've given me the answer.

[00:51:57] Speaker 04:
And it's not in his job description. It's not in his performance development plan. It's nowhere to be found except in Director Puente's declaration. And Dr. Luxton disputes that. He's not the person who should be providing direct care for bereavement or otherwise. That's not his forte.

[00:52:13] Speaker 03:
Any other questions? Yeah, yeah. I think we've hit the time, and we appreciate everything that you've done to help us with this.

[00:52:23] Speaker 04:
The only thing I'd like to make sure you – just 32-3 in the trial court record is the policy where it talks about the appointing authority. It talks about the supervisor, that they make the ultimate decision, and HR makes recommendations to them.

[00:52:39] Speaker 03:
Okay. No, look, I think we know what we're looking at. So we thank you for your time, and the case is now submitted. Both counsel have helped us out.

[00:52:50] Speaker 04:
I want to thank you, and I'm sorry for your law clerks because I have a funny feeling they're going to have some more work to do on this. But thank you very much for your time and attention and great questions.

[00:52:58] Speaker 03:
I'd love to do. All right, thank you.