[00:00:00] Speaker 03:
We'll now turn to the next argument on our calendar, 25-6100, SUCHAC versus tech systems.

[00:00:13] Speaker 03:
And I'm not sure, I guess, Ms.

[00:00:16] Speaker 03:
Franz Gilmour is first.

[00:00:18] Speaker 00:
Yes, Your Honor.

[00:00:19] Speaker 03:
Please proceed.

[00:00:22] Speaker 03:
Would someone please close the door in the back?

[00:00:27] Speaker 03:
I think.

[00:00:28] Speaker 00:
May it please the court.

[00:00:30] Speaker 00:
Ray Franz Gilmore appearing on behalf of Mr. Suchak, alongside my co-counsel, Alexa Schwartzfin.

[00:00:36] Speaker 00:
I will argue the September and April inquiry claims for the court, while Ms.

[00:00:39] Speaker 00:
Schwartzfin will argue the retaliation claim.

[00:00:42] Speaker 00:
We'd like to reserve three minutes for rebuttal.

[00:00:45] Speaker 00:
We're asking that this court reverse or remand the district court's grant of summary judgment as to all three claims today.

[00:00:52] Speaker 00:
Beginning with the inquiry claims, I want to spend the bulk of my time on the April inquiry.

[00:00:57] Speaker 00:
But to first briefly address the September inquiry, we've shown that that claim was administratively exhausted by the OFCCP complaint and that the district court applied the wrong causation standard for an inquiry claim.

[00:01:11] Speaker 00:
Turning to April, however, that claim instead hinges on liability.

[00:01:15] Speaker 00:
TEC is liable for the April inquiry under both the plain text of the ADA as well as the joint employer standard for liability.

[00:01:24] Speaker 00:
Beginning with the plain tax, under section B2, tech is liable for participating in a relationship with a company that has the effect of discriminating against tech's own employee.

[00:01:37] Speaker 00:
Now, the district court acknowledged that under the standard tech would be liable.

[00:01:42] Speaker 00:
However, the district court erred in holding that a regulatory exception applied

[00:01:46] Speaker 00:
because the inquiry only impacted Mr. Suchak as an applicant of Mahindra and not as an employee of Tech.

[00:01:55] Speaker 00:
But the record contradicts this, Your Honors.

[00:01:57] Speaker 00:
At a minimum, because his job placement was at Mahindra, he had to continue to work with the very people who had discriminated against him for months after the inquiry as a part of his assignment with Tech.

[00:02:11] Speaker 02:
Let me ask you this.

[00:02:12] Speaker 02:
Even if we assume exhaustion,

[00:02:15] Speaker 02:
and we assume that the inquiry itself was a violation, doesn't your client have to show damages?

[00:02:23] Speaker 02:
And here, he worked through his entire assignment, wasn't fired, even though he didn't fill out the form.

[00:02:32] Speaker 02:
What are your damages for the inquiry, just focused on the inquiry?

[00:02:36] Speaker 00:
Your Honor, could you clarify whether you're referring to the September or the April?

[00:02:39] Speaker 02:
Either one, frankly, but you're talking about the April and September 2020.

[00:02:45] Speaker 02:
So you can focus on that.

[00:02:49] Speaker 00:
Your Honor, as to the September inquiry, the district court aired because regarding the question of damages, it held that Mr. Suchak had to demonstrate intentional discrimination stemming from his disability.

[00:03:01] Speaker 02:
Even if I agree with you, you don't have to show intentional discrimination.

[00:03:05] Speaker 02:
You still have to show damages, right?

[00:03:08] Speaker 02:
And you've argued compensatory and punitive damages.

[00:03:12] Speaker 02:
Focus first on compensatory.

[00:03:14] Speaker 02:
What are his compensatory damages here for just the inquiry of April and September of 2020?

[00:03:22] Speaker 00:
Your Honor, specifically for the September claim, while we believe that he was afforded a trial where he could present the full breadth of the evidence, we hold that under the evidence presented at summary judgment

[00:03:35] Speaker 00:
It was sufficient that he presented evidence of punitive damages.

[00:03:39] Speaker 02:
You have to have compensatories to have punitive.

[00:03:42] Speaker 02:
So start with compensatory.

[00:03:43] Speaker 02:
What are his compensatories?

[00:03:46] Speaker 00:
Your Honor, in a way, this is a chain of causation effects where his initial inquiry then created a relationship that ultimately led to the April inquiry and later led to the retaliation.

[00:04:00] Speaker 00:
So how a jury chooses to draw the line there, we would say that that's a question best left to the jury, but that he did show that because of these inquiries, he was in his opposition to those inquiries, he was later terminated.

[00:04:13] Speaker 02:
Okay, so you're admitting that if we focus just on the inquiry from April 2020, you can't show any compensatory damages.

[00:04:24] Speaker 00:
Your Honor, as to the April claim,

[00:04:26] Speaker 00:
He not only was he terminated from tech systems, but he also lost this possible conversion in future employment through Mahindra.

[00:04:34] Speaker 02:
Okay, you've got a separate claim for termination, right?

[00:04:39] Speaker 02:
Correct.

[00:04:39] Speaker 02:
As retaliation.

[00:04:40] Speaker 02:
So right now I'm just focused here on your inquiry claims.

[00:04:44] Speaker 02:
And so what I'm asking you to do is point me to any evidence you produced on summary judgment of compensatory damages suffered

[00:04:54] Speaker 02:
by Mr. Suchak as a result of these inquiries?

[00:05:00] Speaker 00:
Yes, Your Honor.

[00:05:00] Speaker 00:
I would still point the court to the ultimate termination.

[00:05:04] Speaker 02:
OK, so it was a dominoes effect.

[00:05:07] Speaker 00:
Yes, Your Honor.

[00:05:08] Speaker 00:
A chain of causation, if you will, where his opposition to the inquiry ultimately was what caused this dominoes to fall.

[00:05:18] Speaker 00:
Now, under the plain text of the ADA, specifically section B2, there's that relationship aspect.

[00:05:24] Speaker 00:
But again, as I said, his assignment required him to work at Mahindra.

[00:05:27] Speaker 00:
And because of this inquiry, he was later terminated.

[00:05:30] Speaker 04:
But even if it's- Could I just have a factual question for you about the April claim?

[00:05:40] Speaker 04:
As I understand it, Tech Mahindra offered Mr. Suchak this internal position to start after he was done at Integra's.

[00:05:52] Speaker 04:
And Mr. Suchek told Tech Systems that Tech Mahindra was requiring him to file this form, CC305.

[00:06:02] Speaker 04:
Tech said that these onboarding documents really weren't associated with Tech.

[00:06:10] Speaker 04:
And later on, I guess my question is after this kind of back and forth about filling out the form,

[00:06:20] Speaker 04:
Does the record show whether the alleged inquiry ever ended up happening?

[00:06:27] Speaker 00:
Your Honor, the record shows that to Tech's knowledge in the affidavits they submitted, that they were told that Mahindra did make the inquiry of Mr. Suchak in September and April.

[00:06:39] Speaker 00:
And in fact, in September, Tech was directly involved in supplying that form.

[00:06:44] Speaker 00:
So going on the credibility of Mr. Suchak,

[00:06:48] Speaker 00:
The record he did in for his employers on page 160 and 200, that got discrimination.

[00:06:54] Speaker 04:
So it's actually, the form is actually tendered to Mr. Suchak.

[00:06:58] Speaker 00:
Yes, Your Honor.

[00:06:59] Speaker 00:
The inquiry claims that he raises are always for form CC305.

[00:07:03] Speaker 04:
Well, I'm talking about April.

[00:07:05] Speaker 04:
I'm not so sure about September, but I'm just talking about April.

[00:07:08] Speaker 00:
Your Honor, in both the September and the April claims, it was form CC305 that was the inquiry.

[00:07:13] Speaker 04:
Right, but they backed off on September, right?

[00:07:16] Speaker 00:
Can you clarify, Your Honor, what you mean?

[00:07:18] Speaker 04:
Did it happen in September as well?

[00:07:20] Speaker 04:
Did he?

[00:07:20] Speaker 04:
Did he?

[00:07:21] Speaker 04:
Was he forced to fill out the form?

[00:07:24] Speaker 00:
Your Honor, in both cases, what happened was that he was presented with form CC305.

[00:07:30] Speaker 00:
He felt uncomfortable with completing it, so he reached out to the Department of Labor for guidance.

[00:07:34] Speaker 00:
He asked for more time.

[00:07:35] Speaker 00:
And he came back to his employer after hearing from the Department of Labor, which said that he did not have to return this form because the form was inherently voluntary.

[00:07:44] Speaker 04:
So where's the problem?

[00:07:45] Speaker 04:
Where's the inquiry violation, if that's where we end up?

[00:07:48] Speaker 00:
Your Honor, as to April, under the Joint Employer's Standard, TEC is liable because it knew or should have known of the violation, yet it took no corrective action.

[00:07:58] Speaker 04:
I'm asking if there was a violation, if that's where things shook out.

[00:08:02] Speaker 00:
Yes, Your Honor.

[00:08:03] Speaker 00:
We're asking this court to hold that Form CC305, because TEC has not raised the affirmative defense of business necessity, did constitute an impermissible inquiry claim.

[00:08:14] Speaker 00:
because it asks whether the employee has a disability.

[00:08:17] Speaker 00:
And then they leverage his continued employment on him answering that question.

[00:08:22] Speaker 00:
I'd like to yield the remainder of my time to my co-counsel.

[00:08:32] Speaker 01:
May it please the court?

[00:08:33] Speaker 01:
My name is Alexa Schwartzman.

[00:08:35] Speaker 01:
And as to the retaliation issue, we ask this court to reverse the district court

[00:08:39] Speaker 01:
because Tech failed to meet its burden at step two of McDonald Douglas to offer legitimate defenses for all three adverse actions.

[00:08:47] Speaker 01:
Tech gave no reason at all for two of the adverse actions Mr. Suchak suffered, and its defense for its own termination of Mr. Suchak was illegitimate.

[00:08:55] Speaker 01:
Tech has argued consistently that the sole reason it terminated Mr. Suchak was because Mahindra decided not to extend or renew his temporary assignment.

[00:09:05] Speaker 01:
However, we have shown that Mahindra's decision not to extend or renew the assignment was retaliatory.

[00:09:10] Speaker 02:
And this cannot serve as a legitimate non-retaliatory defense for his text termination at step two under Burton from... Why is tech responsible for Mahindra's insistence on the form or retaliation for not filling out the form?

[00:09:29] Speaker 01:
Your Honor, text liability hinges primarily on the fact that they both knew or should have known of Mahindra's discrimination and retaliatory intent, and because it failed to take corrective action within its control.

[00:09:41] Speaker 02:
What was the corrective action within its control?

[00:09:43] Speaker 02:
It can't offer him a position at Mahindra, can it?

[00:09:47] Speaker 01:
No, Your Honor.

[00:09:48] Speaker 01:
However, it could have, as it did in September of 2020 when it learned that Mahindra was

[00:09:53] Speaker 01:
requiring that he complete the form in order to receive the extension.

[00:09:58] Speaker 01:
Tech, in September of 2020, asked Mahindra to waive the form requirement in that instance, which shows that it did have corrective action that it could have taken in April of 2021 when the communication logs show that Tech did reach out to Mahindra to ask if they were going to extend or renew the contract.

[00:10:15] Speaker 01:
And only after they confirmed that Mahindra was not going to extend or renew that Tech then terminated him.

[00:10:22] Speaker 01:
Furthermore, we would argue that TEC could have had freedom of contract and could have put in its contract some sort of escape clause for this kind of situation.

[00:10:32] Speaker 01:
It could have contracted and said that if Mahindra makes a unilateral decision that requires TEC to violate the law, that TEC can override that decision.

[00:10:41] Speaker 01:
So TEC could override it by ordering Mahindra to hire him?

[00:10:46] Speaker 01:
Tech could have required that Mahindra not immediately terminate at the end of the contract, that there could have been a probationary area where Tech had conducted an investigation into the retaliatory allegations that Mr. Suchek was putting forth.

[00:11:01] Speaker 01:
Tech had ample opportunity to take corrective action in this case and took none.

[00:11:06] Speaker 01:
However, Your Honors, even if Tech is not liable per se for the retaliation of Mahindra,

[00:11:11] Speaker 01:
Mahindra's retaliation still cannot be a legitimate non-retaliatory defense at step two for text actions.

[00:11:19] Speaker 01:
This is supported by Burton from the Fifth Circuit, from the Third Circuit, and from the Northern District of Oklahoma.

[00:11:26] Speaker 01:
Another entity's retaliatory intent cannot be a non-retaliatory defense at step two.

[00:11:33] Speaker 04:
What is step two?

[00:11:34] Speaker 01:
At step two, Your Honor, of the McDonnell Douglas framework is the burden on the defendant employer to show that they had a legitimate non-retaliatory reason for the adverse action that it took against the plaintiff.

[00:11:46] Speaker 04:
And the adverse action, but the adverse action was the termination of employment attack.

[00:11:53] Speaker 01:
Yes, Your Honor, that is correct.

[00:11:54] Speaker 04:
Well, didn't that happen by virtue of the contract?

[00:11:58] Speaker 01:
Your Honor, it happened by virtue of Mahindra deciding not to extend or renew the contract.

[00:12:03] Speaker 04:
Well, but the contract on its face and its self-executing said that it ended when the assignment ended.

[00:12:09] Speaker 01:
Your Honor, the record supports that on page 152 of the record, which contains those clauses from the employment agreement, it says that the employment ends when it ends with the client because the client decided or otherwise.

[00:12:21] Speaker 01:
So yes, it could have just automatically terminated.

[00:12:24] Speaker 01:
However, the record also supports that Mahindra considered extending or renewing his assignment and it was only their decision not to extend or renew that caused Mr. Suchak to be terminated.

[00:12:35] Speaker 03:
I'm confused here.

[00:12:37] Speaker 03:
Tech provides workers for companies that it contracts with.

[00:12:43] Speaker 03:
If you need somebody, we'll supply that person.

[00:12:46] Speaker 03:
And you're saying that if that person says, we don't want this person and we're ending the contract, the tech can tell them, no, you've got to keep working?

[00:12:54] Speaker 03:
You've got to keep them working?

[00:12:55] Speaker 01:
Not necessarily.

[00:12:56] Speaker 01:
What are you saying?

[00:12:57] Speaker 01:
We're arguing that in this case, because tech knew or should have known that Mahindra's decision not to extend or renew the contract was retaliatory.

[00:13:05] Speaker 01:
Tech knew that this was a violation.

[00:13:07] Speaker 03:
So what could it do?

[00:13:07] Speaker 03:
Could it say, Mahindra, you have to keep this guy on?

[00:13:10] Speaker 03:
I mean, that's a good way to lose all your clients, isn't it?

[00:13:14] Speaker 01:
Your Honor, not necessarily saying that TEC could have or should have unilaterally extended the contract.

[00:13:20] Speaker 01:
However, TEC could have investigated the reason as to why Mahindra... To what end?

[00:13:25] Speaker 03:
I mean, the whole contract is probably an employee to somebody who wants an employee.

[00:13:32] Speaker 03:
And you're saying they can't make Mahindra keep the employee, but they can investigate Mahindra and see whether they

[00:13:42] Speaker 03:
violated some law itself, they're going to enforce the equal employment statutes?

[00:13:48] Speaker 01:
Yes, Your Honor.

[00:13:48] Speaker 01:
It is tech's duty in contracting with another business entity to ensure that that entity is not retaliating or discriminating against its own employees in violation of the Americans with Disabilities Act.

[00:14:00] Speaker 01:
Tech cannot hide behind blind contractual compliance to shield itself from liability from the law.

[00:14:06] Speaker 01:
And we would ask that we could reserve the rest of the time.

[00:14:08] Speaker 04:
Could I just, it's a follow-up.

[00:14:10] Speaker 04:
If Tech Mahindra had told Mr. Suchak on September 1, 2021, it's the day after August 31, that it would not hire him for permanent employment, would Tech still be liable?

[00:14:28] Speaker 01:
No, Your Honor, because at that point, Mr. Suchak would no longer have been an employee of both Tech and Mahindra.

[00:14:33] Speaker 01:
However, throughout all of the events underlying this case, Mr. Suchak was an employee of both Tech and Mahindra, and the conversion was only for a position extending his temporary assignment with Mahindra at Tech to a full-time position in that same role.

[00:14:49] Speaker 02:
Which, if he had been full-time, Tech would have had no involvement whatsoever in that employment, right?

[00:14:55] Speaker 01:
Right, Your Honor.

[00:14:56] Speaker 02:
However... They do temporary employees.

[00:15:01] Speaker 01:
Yes, Your Honor, and for this temporary assignment.

[00:15:04] Speaker 02:
Tech, do you have any evidence in the record that Tech is involved in Mahindra's decisions to hire permanent employees?

[00:15:13] Speaker 01:
Yes, Your Honor.

[00:15:13] Speaker 01:
On pages 176 to 178 of the record, there are communication logs that Tech attached to its motion for summary judgment that show that Tech was communicating with Mahindra and, quote, working on the conversion.

[00:15:26] Speaker 01:
Now, Judge Matheson, in Parker excavating, you found that a termination letter by one client's managers

[00:15:32] Speaker 01:
that ended up being on the temporary employment agency's letterhead was sufficient to create a genuine dispute as to liability.

[00:15:39] Speaker 01:
So we would ask that you would find the same here.

[00:15:41] Speaker 04:
Just one last clarification.

[00:15:43] Speaker 04:
Was Mr. Chuchak placed with Integra or was he placed with Mahindra?

[00:15:49] Speaker 01:
Originally, Your Honor, he was placed with Integra and then Integra brought Mahindra in about three months into his initial temporary assignment.

[00:15:57] Speaker 04:
Wasn't he still placed with Integra?

[00:15:59] Speaker 01:
Yes, your honor.

[00:16:00] Speaker 01:
However, Mahindra took over as his day-to-day supervisor, and all communications in the record support that after Mahindra was introduced, that all communications about Mr. Suchak's assignment happened between Tech and Mahindra rather than Integress.

[00:16:15] Speaker 03:
Thank you.

[00:16:15] Speaker 01:
Thank you.

[00:16:27] Speaker 05:
Good morning.

[00:16:28] Speaker 05:
My name is Eric Pacquell on behalf of Tech Systems, along with Megan Hansen and our client Megan O'Meara.

[00:16:34] Speaker 05:
May it please the court.

[00:16:36] Speaker 05:
I'd like to pick up on the last point that was made, because I think it's an important point in terms of the relationship.

[00:16:43] Speaker 05:
If we talk about the relationship in this case, the relationship was with Integra.

[00:16:49] Speaker 05:
And Tech just happened to inherit Mahindra later as Integra's IT services company.

[00:16:56] Speaker 05:
But overall, I would like to begin with tech systems did not make any impermissible inquiry that's at issue in this case.

[00:17:06] Speaker 05:
Mahindra is the company that allegedly asked Mr. Suchak to complete a self-disclosure form.

[00:17:14] Speaker 05:
And that's undisputed.

[00:17:16] Speaker 05:
That's in the record.

[00:17:18] Speaker 05:
And as far as the termination itself,

[00:17:20] Speaker 05:
Tech Systems terminated Mr. Suchak's employment because the assignment ended.

[00:17:26] Speaker 05:
And the contract said that's when employment ends.

[00:17:29] Speaker 05:
And there's no record evidence to contradict that.

[00:17:34] Speaker 05:
What's this?

[00:17:35] Speaker 05:
Go ahead.

[00:17:36] Speaker 02:
Does Tech have continuing relationship with Mr. Suchak?

[00:17:40] Speaker 02:
Have they placed him in any other job since this?

[00:17:44] Speaker 05:
They have had a continuing relationship trying to place him in other positions.

[00:17:50] Speaker 05:
I don't believe he's been placed, and I don't know that that's in the record, Judge, but they still have communications with him, yes.

[00:17:58] Speaker 05:
Judge Hartz?

[00:18:01] Speaker 03:
I wasn't going to ask you for the answer.

[00:18:03] Speaker 03:
I thought you had another question.

[00:18:05] Speaker 03:
I do.

[00:18:06] Speaker 03:
The proposing counsel mentioned that

[00:18:10] Speaker 03:
Tech said that they would work with Mahindra on this transfer to permanent employment from temporary employment.

[00:18:19] Speaker 03:
So it did have some involvement in that process.

[00:18:24] Speaker 03:
How do you immunize Tech from what happened during that process that may have violated the employment discrimination laws?

[00:18:36] Speaker 05:
First of all, to hold tech systems liable in this case for what Mahindra did would be to impose strict liability on tech systems.

[00:18:44] Speaker 03:
I thought they were saying that tech said, we will work with you on this.

[00:18:51] Speaker 03:
That's not strict liability if tech is involved in the process.

[00:18:55] Speaker 05:
Tech, the record evidence is that tech tried to assist Mr. Suchak and did communicate with Mahindra.

[00:19:04] Speaker 05:
while Mr. Suchek was trying to get to work there.

[00:19:08] Speaker 05:
As permanent employee?

[00:19:09] Speaker 05:
As Mahindra's permanent full-time employee, yes, for Mahindra.

[00:19:15] Speaker 03:
So what was their involvement?

[00:19:16] Speaker 03:
How did they try to help him?

[00:19:19] Speaker 05:
They essentially communicated with him and he communicated with Tech, which brings up a big point because Mr. Suchek... And they communicated with Tech or with Mahindra?

[00:19:32] Speaker 03:
Tech communicated with both.

[00:19:34] Speaker 03:
So in terms of Mr. Suchak seeking permanent employee, Tech was involved in that process of claims getting a permanent job with Mahindra.

[00:19:48] Speaker 03:
Is that correct?

[00:19:49] Speaker 05:
In a passive sense, Tech was not involved in the decision by Mahindra.

[00:19:54] Speaker 03:
In what way did it try to assist?

[00:19:59] Speaker 05:
By essentially communicating with Mr. Suchak and Mr. Suchak

[00:20:04] Speaker 05:
at one point emailed Tech and said, they're asking me to complete this CC305.

[00:20:12] Speaker 05:
And Wiley O'Daniel from Tech said, we have nothing to do with that.

[00:20:17] Speaker 05:
That's not us.

[00:20:18] Speaker 05:
That's a Mahindra requirement.

[00:20:20] Speaker 05:
We're not involved in their decision making.

[00:20:22] Speaker 05:
We're not involved in the onboarding for Mahindra.

[00:20:26] Speaker 05:
Sorry to hear that.

[00:20:27] Speaker 05:
And that's in the record.

[00:20:29] Speaker 03:
Did you say sorry to hear that?

[00:20:30] Speaker 03:
Well, I'm paraphrasing.

[00:20:33] Speaker 03:
They didn't say that Mahindra was doing something improper.

[00:20:36] Speaker 05:
No.

[00:20:37] Speaker 03:
They just said we have nothing to do with that.

[00:20:39] Speaker 05:
Correct.

[00:20:40] Speaker 05:
Mr. Suchak said that, which is another point when there's references to the record about there being something illegal going on.

[00:20:48] Speaker 05:
That's what Mr. Suchak says that the OFCCP says, but that's not in the record from the OFCCP.

[00:20:55] Speaker 05:
There's nothing in the record from Mahindra saying why Mahindra didn't hire him.

[00:21:01] Speaker 05:
There's no record of that.

[00:21:03] Speaker 05:
But the record evidence is that the contract states once the assignment ends, then the employment ends with tech.

[00:21:14] Speaker 04:
Could I just ask, there was the possibility of permanent employment later on with Mahindra, but there was also an extension of the temporary assignment, correct?

[00:21:28] Speaker 05:
Yes, sir.

[00:21:29] Speaker 04:
So why couldn't that be viewed as tech

[00:21:33] Speaker 04:
by being part of the extension of the assignment as having some role in facilitating the ultimate employment with Mahindra.

[00:21:48] Speaker 05:
Well, so two points.

[00:21:50] Speaker 05:
One is, and this was referenced earlier, but tech systems can only do so much.

[00:21:54] Speaker 05:
Tech systems cannot force Mahindra to continue the contract.

[00:22:01] Speaker 05:
Mahindra can terminate the contract when the assignment ends and Mahindra determines when the assignment ends.

[00:22:08] Speaker 05:
Well, really, it should be integrous, by the way.

[00:22:10] Speaker 05:
But on September 2020, and that's the first time that tech is told by Mr. Suchak that Mahindra is requesting this, what did tech do?

[00:22:23] Speaker 05:
Tech did ask Mahindra to waive that requirement.

[00:22:27] Speaker 05:
And Mr. Suchak was allowed to continue to work for tech systems for another 11 months.

[00:22:34] Speaker 05:
The initial term was supposed to be six months.

[00:22:38] Speaker 05:
So when we talk about 29 CFR 1630.6 has been alluded to, I don't think specifically mentioned, the effect of the relationship between Tech and Integra's was that Mr. Suchak got to work at Integra's for six months.

[00:22:57] Speaker 05:
And the effect of Mahindra inheriting being the IT manager was that Mr. Suchak's assignment

[00:23:06] Speaker 05:
extended for another 11 months beyond when it was supposed to have been.

[00:23:12] Speaker 02:
And without filling out the form?

[00:23:15] Speaker 05:
That is absolutely correct, Your Honor.

[00:23:19] Speaker 02:
So I guess looking just at the claims that are based on the request for information,

[00:23:31] Speaker 02:
Are there any damages for that?

[00:23:35] Speaker 02:
Any compensatory damages?

[00:23:37] Speaker 05:
Well, not in the record.

[00:23:39] Speaker 02:
I don't know if Your Honor is asking me hypothetically or somebody... I'm trying to figure out whether summary judgment was appropriate because there were no damages that were evidence of damages.

[00:23:52] Speaker 05:
In either instance.

[00:23:53] Speaker 05:
In either instance.

[00:23:54] Speaker 02:
So let's talk about... Well, the retaliation claim, you know, the argument is that I would have had this permanent job

[00:24:02] Speaker 02:
but for this illegal request, right?

[00:24:06] Speaker 02:
So, I mean, are you saying there's no evidence of damages there?

[00:24:10] Speaker 05:
Well, I haven't seen record evidence of damage there.

[00:24:14] Speaker 05:
I understand your Honor's point that he didn't get hired by Mahindra.

[00:24:20] Speaker 05:
We don't know if he got hired somewhere else after that.

[00:24:24] Speaker 05:
So I'm not saying he couldn't get compensatory damages from Mahindra.

[00:24:30] Speaker 05:
for the August 31, 2021.

[00:24:34] Speaker 05:
But September 2020, I think is what your honor was alluding to also.

[00:24:39] Speaker 05:
I've already mentioned it, but he kept working there for 11 months until I didn't use this phrase in the briefing, but I would call it an intervening factor.

[00:24:49] Speaker 05:
And the intervening factor is

[00:24:51] Speaker 05:
that around April or May of 2021, Mahindra decides that they want to hire people internally for a full-time position.

[00:25:01] Speaker 05:
And then it's Mahindra's call.

[00:25:04] Speaker 05:
And there's case law that supports tech's position on all of this, but a couple of cases we cited, the Venegas case is another case, Venegas versus Aerotech.

[00:25:19] Speaker 05:
That's a case out of the Northern District of Illinois where the client of Aerotech learned that the employee was pregnant and told Aerotech they wanted to end the assignment.

[00:25:34] Speaker 05:
And so the assignment was ended.

[00:25:36] Speaker 05:
And even there, the district court

[00:25:39] Speaker 05:
held that there's no precedent that supports plaintiff's position that a staffing agency should be held liable for its client's actions when the staffing agency has no power over the client.

[00:25:50] Speaker 05:
In the McQueen versus Wells Fargo case, it's an age and race case.

[00:25:55] Speaker 05:
And this was in our briefing.

[00:25:56] Speaker 05:
This is out of the northern district of Alabama.

[00:26:01] Speaker 05:
And the court granted Aerotech summary judgment because it played no part in the decision

[00:26:07] Speaker 05:
to terminate the plaintiff.

[00:26:10] Speaker 05:
And here, there's no evidence.

[00:26:13] Speaker 05:
The record evidence that exists here is that the action Tech took was, in September 2020, asked Mahindra to waive the requirement.

[00:26:24] Speaker 05:
That's what the evidence is about Tech's involvement in any decision.

[00:26:29] Speaker 05:
And Mr. Suchek was allowed to continue working there.

[00:26:33] Speaker 04:
Counsel, could I just go back?

[00:26:36] Speaker 04:
Yes, sir.

[00:26:36] Speaker 04:
You mentioned a few minutes ago the regulation 1630-60.

[00:26:43] Speaker 04:
I think you know what I'm talking about.

[00:26:47] Speaker 04:
And then there was also the statute entitled 42-12112-B2.

[00:26:55] Speaker 04:
Mr. Suchak argues that the statute and the regulation supports their

[00:27:04] Speaker 04:
argument or his argument that Tech on the inquiry claims had some kind of responsibility to protect him from improper disability inquiries and also that Tech had a responsibility for Mahindra's alleged adverse actions.

[00:27:29] Speaker 04:
Could you

[00:27:30] Speaker 04:
address these arguments relative to the statute and the regulation?

[00:27:37] Speaker 05:
I'll certainly try.

[00:27:38] Speaker 05:
So as far as 12112D2, that concerns applicants.

[00:27:45] Speaker 05:
So when we talk about Mr. Suchak in September 2020, he's not an applicant for tech.

[00:27:53] Speaker 05:
And then when we get to April and May of 2021, he's not an applicant for tech.

[00:27:59] Speaker 05:
He's an applicant to go work at Mahindra.

[00:28:03] Speaker 05:
So D2 wouldn't apply.

[00:28:04] Speaker 05:
D4 does concern current employees.

[00:28:10] Speaker 05:
And it says a covered entity shall not require a med exam or make inquiries of an employee as to whether the employee is an individual with a disability, et cetera.

[00:28:21] Speaker 05:
Well, first of all, I get back to,

[00:28:24] Speaker 05:
Tech didn't make an inquiry.

[00:28:26] Speaker 05:
That's the first part of the statute, is that the covered entity make an inquiry or conduct a medical exam.

[00:28:35] Speaker 05:
Tech systems didn't either.

[00:28:38] Speaker 05:
But then it concerns an employee.

[00:28:41] Speaker 05:
And so, again, the point on both of those, for D2, Mr. Suchak was never, for our purposes, a tech applicant.

[00:28:51] Speaker 05:
And for D4, tech never made an inquiry or required a medical examination.

[00:28:59] Speaker 05:
But then, Your Honor, also you mentioned, I mentioned, 29 CFR 1630.6 is the reg about that.

[00:29:08] Speaker 05:
And when we look at the literal language of the regulation, it's unlawful for a covered entity to participate in a contractual or other relationship that has the effect of subjecting the covered entity's applicant or employee to the discrimination prohibited.

[00:29:29] Speaker 05:
The effect of the relationship, I mentioned this earlier, between tech and integrists was Mr. Suchek

[00:29:38] Speaker 05:
got to work for Tech at Integris.

[00:29:42] Speaker 05:
And then the effect of Tech inheriting Mahindra, who they didn't ask to have any relationship with, was that Mr. Suchak's employment got extended for another 11 months beyond what it was supposed to be in the first place.

[00:29:59] Speaker 05:
I hope that answers your question, Judge Matheson, but that's the response to 12112D2 and 4 and the regulation.

[00:30:10] Speaker 04:
Could I ask you just one procedural question?

[00:30:11] Speaker 04:
Absolutely.

[00:30:12] Speaker 04:
We're on de novo review of summary judgment.

[00:30:15] Speaker 04:
Are we precluded from considering the documents presented to the district court?

[00:30:25] Speaker 05:
The documents were not referenced below in the actual briefing.

[00:30:29] Speaker 04:
Well, I guess the documents that the tech provided with its summary judgment motion.

[00:30:36] Speaker 04:
that's fair game for us in terms of consideration.

[00:30:40] Speaker 05:
I think I know what you're asking.

[00:30:42] Speaker 05:
Is it fair game for Mr. Suchek to refer to it?

[00:30:45] Speaker 04:
Yes.

[00:30:46] Speaker 04:
I got you.

[00:30:46] Speaker 04:
Yeah.

[00:30:47] Speaker 04:
Thanks for helping me on that.

[00:30:49] Speaker 04:
What's your answer?

[00:30:50] Speaker 05:
Well, let me help you again by citing you.

[00:30:56] Speaker 04:
I'm getting cited too much today.

[00:30:57] Speaker 05:
There you go.

[00:30:59] Speaker 05:
According to you, maybe not.

[00:31:02] Speaker 05:
I'm sorry, Judge.

[00:31:05] Speaker 05:
One of your honor's opinions that's, well.

[00:31:13] Speaker 03:
It wouldn't be valued on this panel anyway.

[00:31:19] Speaker 05:
Well, technically, this court can disregard it because it wasn't properly referred to below.

[00:31:25] Speaker 05:
We understand Mr. Suchek was a pro se below.

[00:31:29] Speaker 05:
So I'm not going to raise a big stink about that.

[00:31:33] Speaker 05:
Thank you, counsel.

[00:31:34] Speaker 05:
Thank you.

[00:31:37] Speaker 03:
Do appellants have more time?

[00:31:41] Speaker 03:
Okay.

[00:31:42] Speaker 03:
Well, case submitted, counselor excused.

[00:31:44] Speaker 03:
We're going to take a brief recess.

[00:31:47] Speaker 03:
Appellants, counselor, or students, is that right?

[00:31:50] Speaker 03:
Well, the reason I'm asking is you couldn't have told that by just your argument.

[00:31:54] Speaker 03:
Very well done.

[00:31:57] Speaker 03:
We'd like to have very good counsel on both sides, and only one side can win.

[00:32:02] Speaker 03:
So that's not how we measure how well you did.

[00:32:04] Speaker 03:
Your instructor should be proud of you.