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Case number 22-5124, Ghulam Ali, at balance, versus Michael Reagan, Administrator, U.S.

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Environmental Protection Agency.

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Mr. Volchok, I make his curiae for the at balance.

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Mr. Walker, for the appellee.

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Good morning.

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Good morning.

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May I please the court?

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Daniel Volchok, amicus appointed, support of the plaintiff, Ghulam Ali.

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Your Honor, my submission is that reversal is required because a reasonable jury viewing the record in the light most favorable to Mr. Ali could return a verdict for him on his reasonable accommodation claim.

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For example, a jury could find that EPA failed to provide a reasonable accommodation, find that the remote work accommodation EPA offered was not reasonable.

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It wasn't reasonable a jury could find, both because it would have isolated Mr. Ali, segregating him from his colleagues and the workplace, and because it would have exposed him to significant health risks, a severe allergic reaction to emissions from his home printer.

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Now, EPA's principal response is that the agency did not know at the time about the printer issue because Mr. Ali did not explain it.

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But he did, or at least a reasonable jury could find that he did, crediting evidence in the record about a contemporaneous explanation.

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That's sealed J.A.

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page 50, J.A.

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page 89, J.A.

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page 236.

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The court doesn't need to go any further to reject this argument about ignorance of the printer issue, but a jury alternatively could find that if EPA didn't know about the issue, that was the agency's fault.

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That the agency specifically told Mr. Ali to respond to its offer of full-time remote work without an explanation, with simply a quote, yes or no.

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That's JA, again, page 89, and JA, page 171.

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Does your argument about whether EPA should have followed up turn at all on the fact that while their notice to Mr. Ali said that we will talk with you before we take to work on a reasonable accommodation, they in fact never talked to him and just issued this work at home

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accommodation.

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So that is a key part of our argument, Judge Millett, that that EPA had the same obligation under cases like Ward versus McDonald that Mr Ali did to try to move the process forward.

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And they didn't.

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In fact, they repeatedly obstructed the process, right?

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He sent email after email trying to resume the discussions with EPA about his request for reasonable accommodation.

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I'm talking about even the starting point.

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Their starting point was they asked for information about his disability and followed up and they found that satisfactory, unlike work.

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They found it satisfactory.

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And then issued a notice saying, we find you have a disability.

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We will talk with you.

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And then we will work on a reasonable accommodation.

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We'll make, we have discretion in the final decision.

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But in that, I don't know whether it's the same minute, but within an hour or so, they issued work at home.

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That's a reasonable accommodation, at least as best I can tell from the record, without having actually ever

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done what they said they would do is talk with you about what accommodations will work.

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They simply dropped this accommodation proposal on him without any of that dialogue.

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That's correct.

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There's no indication.

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Did they even start an interactive process?

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Well, their position is that the interactive process, and I think this part is actually right, the interactive process includes exchanges of information between employer and employee about the nature of the disability.

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So when they were asking him to follow up with additional medical evidence, I think that is fairly viewed as part of the interactive process.

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On what accommodations going to work, it seems like they didn't, having said they were going to talk with him, didn't.

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That's just announced.

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Here's your accommodation.

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That's absolutely right.

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Judge Mollett.

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And that is a reason that a reasonable jury viewing the light most favorable to Mr. Ali could return a verdict for him.

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That is bad faith participation.

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They didn't actually have any sorts of backs back and forth with him.

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Now they have an argument.

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You can't be held liable just for bad faith participation if the accommodation is otherwise reasonable.

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I think that's wrong both on the law and on the facts here.

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It's wrong because it would encourage agencies to do

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exactly what happened here, which is to take sort of a my way or the highway approach, rather than having the all these events occurred in 2012.

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Is that right?

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But late 2011 through early 2013, Judge Randolph.

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But the offer of the accommodation was in June 2012.

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So what happened after he declined the option of working at home?

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So his position, if I can, I want to go directly to your question, Judge Randolph, but just a threshold response.

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He objected to work at home, but EPA jumped to the conclusion, in our view, that was a definitive rejection without telling him that they were jumping to their view.

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But whether it was.

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He was just bluffing, is that all?

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No, I think he was expressing objection.

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He said that's not an option.

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He said, I have thought about this.

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It's unclear about that.

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All right, so I don't want to get hung up on this, Judge Randolph, because I don't think it matters whether or not it was a definitive rejection.

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But I think it's viewing the light in this posture, viewing the light in the record of his favorite woman, Strat Lee.

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So my question is, from 2012 on, he rejected the author to work at home.

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And he rejected the idea that he could work from a cubicle.

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at in the office building, right?

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So the district court disagreed that he actually rejected that accommodation and now EPA has flipped to tell me what happened to him.

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Sure.

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So through late 2012 and into 2013, he continued to try to continue the discussion with EPA about a reasonable accommodation.

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But in terms of on the ground,

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The record shows that he was essentially trying to make things work.

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He was going from cubicle to cubicle, trying to find one where his allergies would not be triggered.

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And EPA, as part of its argument that it offered a reasonable accommodation in the cubicle, points to JA-72, where Mr. Ali testifies to the EEO, I found a cubicle that became my cubicle.

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EPA cites that.

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You go two or three paragraphs later in the same testimony, JA73, and he says, but actually, even that cubicle didn't work because there was someone there with perfume.

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But he's bouncing around and trying to make things work.

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Ultimately, Judge Randolph, and I think it's 2014, but much later, EPA does give him a private office, and he has had a private office since then.

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Now, I do want to get back to the point.

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Your case rests on the actions in 2012, right?

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2011 through 12, 2012 and 2013.

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You're not seeking an injunction, are you?

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No.

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Well, so to be clear, Your Honor, I don't represent Mr. Olley.

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I am meek as appointed by the court.

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But his complaint asks for retroactive promotions and pay damages for emotional suffering.

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He does not request any sort of injunction, no.

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But I do want to get back to the point that if EPA didn't know about the printer issue,

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That's only because, as I was alluding to, it spent months and months ignoring his efforts to continue the discussion after his initial objection slash rejection of the remote work offer and EPA obstructed it.

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Now it cannot, it's maybe the most important thing I say.

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So what was the basis that he said he couldn't work it out?

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Because he has a severe allergic reaction to certain organic compounds, certain allergens.

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That was the disability that EPA formally recognized.

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And emissions from his printer would trigger the allergy.

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Why does he have to have a printer?

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So there is, first of all, there's testimony that EPA says that, and it's brief at one point.

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It says there's no evidence in the record that he needed to print as part of his job.

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There is, I'll identify in just a moment, but I would submit you don't even need it.

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It is a reasonable inference, and thus has to be drawn in this posture in Mr. Ali's favor, that an economist working at the Environmental Protection Agency will need to print, but in any event.

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They can print remotely.

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And then have somebody email things.

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So you're a judge and EPA is speculating.

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The doctor, at least the part of it that's not under seal, never mentioned printer emissions.

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EPA's own formal determination of the disability is broad and says the allergy extends to a wide range of compounds.

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And EPA has not argued in this court.

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in this record, other than him, has said that the printer emissions cause a reaction, have they?

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Well, if that's true, Judge Randolph, that's enough.

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We're at summary judgment, and it was granted against him.

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So he has testified repeatedly, yes, that that causes, that triggers allergy.

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The medical evidence is consistent with that.

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And even EPA, I want to be clear to your honors, is not arguing here on appeal that that is a reason to affirm.

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If I can just make maybe the most important point I would make this morning is that

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It cannot be the law that an agency can willfully blind itself to information that would render its accommodation unreasonable and then insist in court that the accommodation must be deemed reasonable precisely because of that ignorance that would give agencies all sorts of incentives.

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to do exactly what EPA did here, which is to pre-termit the interactive process and thereby cut off the flow of information when the very purpose of the interactive process is to allow for information flow so that appropriate accommodations will be identified.

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The bottom line is, EPA's position will mean fewer reasonable accommodations being identified for disabled employees.

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to probe a little bit your position on the relationship between the interactive process and the reasonable accommodation.

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Say that there is a familiar kind of disability and the employer has worked with it before and this is what the employee has.

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And promptly, when the employer learns of the disability, it offers an accommodation that is plainly reasonable, maybe something that

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the courts have already seen for someone with a more serious version of what this employee has.

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And the employer offers it.

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And the employee doesn't specify any other

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alternative that it wants the employer to consider.

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But the employer just says, here this is, and then doesn't get back to the employee when the employee says, I don't like that, I don't like that.

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Is your argument really that the employer can face liability?

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And on the hypothesis, the accommodation is reasonable.

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OK, on your hypothesis, if it's reasonable, then no, the employer can't place liability for failing to offer a reasonable accommodation.

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Now, I have proposed an independent grant.

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But I do want to be clear, Judge Pillard, that I believe summary judgment has to be reversed independent of that separate argument about EPA participating in bad faith in the interactive process.

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Obviously, failure to provide

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reasonable accommodation is by itself a ground for liability.

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And because of what I've articulated, a reasonable jury could find here that a reasonable accommodation was not offered.

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But Judge Pillott, on your hypothetical and on the ground of bad faith liability, I agree on your circumstances, it would be a stronger case for the employer.

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Because this is very fact-specific, of course.

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Both aspects of liability and a jury could find in the circumstances you described that it really was on the employee.

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I'm just not sure that I'm following your answer.

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Your answer was cabined.

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You said that they can't be liable for failure to offer a reasonable accommodation.

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But my question really is, could they nonetheless, in that circumstance, be liable for failure to continue the back and forth?

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My submission is, in theory, yes.

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Now, given the hypothetical, because there is not this clear dichotomy between process and substance, that is, between the interactive process and the substantive reasonableness of the accommodations.

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And this case illustrates why, when you've got an agency that is cutting off communication and sort of a first offer and then we're done, the agency is putting itself in a position where it's not going to hear information.

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that could show its accommodation to be unreasonable.

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Take this case.

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If EPA had continued the discussions with Mr. Ali, taking him up on any of his six, seven offers to talk further, they could have said, why did you object?

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He could have said the printer issue, again, assuming they didn't already know.

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And then further discussions could have been had about ways to deal with that, perhaps as Judge Randolph was suggesting, remote printing or various other.

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But EPA can't rely on speculation about those possibilities here when they didn't continue the conversation.

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They can't get summary judgment on that.

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His printer.

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This is a printer he owns at hand.

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It's not clear in the record, Judge Pillard, whether he even had a printer at home, but it doesn't matter.

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The point is, as long as you- It does a little bit.

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If he has a printer at home that he purchased and that he uses for personal use, it makes it a pretty tough inference that

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he couldn't work with that around.

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Well, here's why I think it's not necessarily that tough, Judge Pillard.

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Although, again, it's not clear in the record whether he has a printer at home.

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And given the posture, I think we have to assume he doesn't.

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But he testified, it's time of JA 89, to the point that, look, the allergy is triggered by the emissions the printer gives off when it prints.

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In a few minutes, those emissions dissipate.

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He can go pick up stuff from a printer.

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And the emissions will dissipate more quickly when the printer is in a wide open space, as you might imagine.

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And again, J889, he talked about this.

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The printer's sitting in a big hallway in a government building as compared to it sitting in a small enclosed area like a private home.

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In that circumstance, it might be an hour until he could go pick something up.

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Five minutes may not cause a problem as far as ability to do work.

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A five minute delay between

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printing and picking something up, but an hour.

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Was the printer his only objection to working at home?

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No, he has raised additional objections about his spouse.

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And again, all of this goes to it's not all that developed in the record, but you can imagine, for example, we know from the COVID era, Ford's

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era, for example, that domestic violence went up quite a bit.

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Now, it is not an employer's obligation, obviously, to prevent domestic violence in the home.

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But it brings home the point that for a lot of people, working at home is not safe.

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And again, all of this could have come out.

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Not safe because your wife may attack you.

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Is that your point?

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Or a spouse.

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I mean, we're talking in this particular case, Judge Randolph, about a male employee with a female spouse, the record indicates.

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But of course, it can be flipped.

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I don't want to get- Do you work at home during COVID?

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Well, COVID is much after the record.

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I don't know the answer to that question, Judge Randolph, because COVID is much after the record closes.

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We're talking about all of these events are, as we discussed, 2011 to 2013.

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Now, he did work at home at EPA's direction in 2007 because of an allergic reaction that he suffered.

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He testified that he was barely J.A.

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174 to 175.

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barely able to get his work done, precisely because he did not have a lot of work at that time, as I do nowadays.

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That's the end quote.

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And he was ridiculed by other employees.

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He was ridiculed by other employees for working at home.

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I candidly don't remember that, Judge Malapit.

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I certainly take your representation that that is the case.

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Your Honor, there's much more.

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I can say I'm well over my time.

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I'm happy to proceed or sit as the court prefers.

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Your brief rested more substantially than your argument today on the notion that it's one thing to grant an employee who wants it a work at home as an accommodation, and it's very different to require it where the employee is against it.

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There is a question whether he communicated, the records suggest that he did communicate to the employer that he had this ink problem, printer problem with working at home.

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But putting that aside, if he hadn't,

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made any specific objection to working at home other than I don't want to work at home in your view is that sufficient and why it is sufficient I don't mean to run away from this at all.

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My brief judge I do want to say now you have to put aside to put aside the printer issue.

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You have to put aside not only the evidence that he told EPA at the time, but also the evidence that they told not to explain and the evidence that they didn't know if they didn't only because of them ignoring him for a protracted period of time.

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But Judge Pillard, with that long windup, yes, it would be sufficient.

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As I said at the outset, the other consequence is isolation and segregation of Mr. Ali.

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EPA doesn't claim that it was unaware at the time of that consequence.

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Of course, it was aware it's inherent in the accommodation.

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And it undermines the reasonableness of the accommodation for a couple of reasons.

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We know that a driving factor behind the enactment of the Rehabilitation Act and of the ADA was to promote the integration of disabled employees into society and into the workplace, 29 USC, Section 701.

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EPA's accommodation would undermine integration.

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We also know the regulations provide that an even milder form of isolation and segregation that EPA offered here is prohibited, right?

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The guidance to the regulation says employers cannot segregate in the workplace.

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You can't put all your disabled employees in one office or one floor and you're non-disabled.

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Even more mild form of isolation and segregation, and that's not.

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The regulations also define reasonable accommodation in part as a modification or an adjustment that would allow the disabled employee to enjoy all of the privileges and benefits, the same privileges and benefits that non-disabled employees do.

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One of those privileges and benefits is in-person interaction.

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EPA's accommodation would deny that.

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And, Your Honors, it is going to be the case very often that employers will have a strong incentive to respond to an accommodation request

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by simply telling the employee to go work from home, because all manner of accommodations impose some costs on the employer, installing wheelchair ramps, installing elevators for people in wheelchairs.

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And it will simply be easier for employers most of the time.

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And of course, we're talking about federal employer here, but it's going to apply in the ADA context as well.

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It will simply be easier for the employer not to incur those costs, not to build those wheelchair ramps or install those elevators, and just force the employer, all of their disabled employees, most of them at large percentage, to work from home.

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What if we think that we are required, and I'm not saying that I think this, I'm trying not to probe your legal question, but what if we read the record that we are required to treat Mr. Ali as also taking a kind of my way or the highway.

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Again and again and again, he didn't say, let's talk, I have more concerns about work at home.

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He said, I want a separate office.

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I want a separate office.

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I want a separate office.

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I want a separate office.

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I don't want a different cubicle.

[00:19:03] Speaker 04:
So the area between the two is he's saying, I want a separate office.

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The employer is saying, that's not practicable.

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The employer is saying, you know, cubicles aren't working.

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Work at home.

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And the employer is willing to stand on the reasonableness or not and work at home and doesn't think that the separate office is going to be constructed.

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So what more is going to be learned in a situation like that?

[00:19:33] Speaker 06:
So two responses, Judge Pillard.

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I have to fight the hypothetical just briefly before I delve right into it and say, he did not just say, I want a private office, want a private office, want a private office.

[00:19:41] Speaker 06:
Look at JA241.

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When EPA finally responded to him after seven months of ignoring him and said, we understood you to reject our remote work accommodation, but we're happy to reopen it, he writes back, JA241, and says, I would be happy to discuss or settle the issues.

[00:19:57] Speaker 06:
Okay, so not like I'm only going to do a private office or anything like that.

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EPA never responds.

[00:20:02] Speaker 06:
So all of that is critical because again, the question is just

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could a reasonable jury find in his favor?

[00:20:09] Speaker 06:
But Judge Pillard, to your question, if he had just kept saying reasonable, that would then be a jury question, right?

[00:20:16] Speaker 06:
I'm not saying a jury couldn't find for EPA on this record or on the hypothetical record that you have just posited.

[00:20:23] Speaker 06:
The question is, was his Seventh Amendment right to a jury supposed to be even taken away from him?

[00:20:29] Speaker 06:
So a jury was not even allowed to answer the question of whether an agency that blocked communications for seven months, and of course,

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without having talked to him.

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Correct.

[00:20:38] Speaker 06:
And there's an asymmetry here, right?

[00:20:39] Speaker 06:
I mean, he is one person.

[00:20:41] Speaker 06:
He's an economist.

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He's not a lawyer.

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He's not an HR person.

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You look at the record, EPA was going to talk to its HR people.

[00:20:46] Speaker 06:
It's going up and down the seniority chain.

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They obviously have much more experience in this area.

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So I don't think it would be at all unreasonable.

[00:20:52] Speaker 06:
It's certainly not precluded.

[00:20:54] Speaker 06:
for a jury to say, yes, both sides have obligations in the interactive process.

[00:20:59] Speaker 06:
We know that from Ward.

[00:21:00] Speaker 06:
But on this record, when you've got both people saying, no, no, yes, yes, they're just at loggerheads, we're actually going to fine for the employee.

[00:21:07] Speaker 06:
Again, not required.

[00:21:09] Speaker 06:
But this is summary judgment.

[00:21:10] Speaker 06:
The question is whether he gets a trial.

[00:21:12] Speaker 04:
There is an information asymmetry on certain points.

[00:21:15] Speaker 04:
But doesn't the law require the employee to propose reasonable accommodations, whether you agree with that or not?

[00:21:22] Speaker 06:
No.

[00:21:23] Speaker 06:
It's not my understanding judge colored the obligation that Congress places on employers to provide reasonable combinations there are certainly obligations on employees to provide information as Mister Ali did 3 times when he was asked to provide medical information or medical information or medical information.

[00:21:38] Speaker 06:
This is simply not an individual was trying to stop all he certainly had his preferred accommodation.

[00:21:43] Speaker 06:
and concerns about the accommodation that EPA offered.

[00:21:46] Speaker 06:
But a reasonable jury could find that he made all of the necessary efforts and find the reasons I've said that the proffered accommodation was not reasonable.

[00:21:54] Speaker 04:
And is it not lawful to prohibit employees from wearing scented products in the

[00:22:02] Speaker 06:
I don't know the answer to that question.

[00:22:04] Speaker 06:
EPA took the position, Judge Pillar, that they had consulted with their labor relations folks and been told that they could not direct the employee whose cologne was principally causing the problem to stop doing so.

[00:22:17] Speaker 06:
And there's evidence in the record that he was asked and cajoled and simply declined.

[00:22:21] Speaker 06:
But the mandate the law puts on the employer is to provide a reasonable accommodation.

[00:22:26] Speaker 06:
And a jury could find EPA declining that.

[00:22:30] Speaker 06:
Unless the court has further questions, I'll save my two minutes.

[00:22:32] Speaker 05:
Thank you very much.

[00:22:51] Speaker 02:
Good morning.

[00:22:52] Speaker 02:
May it please the court.

[00:22:53] Speaker 02:
Johnny Walker for the administrator of the EPA.

[00:22:56] Speaker 02:
Your honors, the EPA engaged in an interactive process with Mr. Ali to determine a reasonable accommodation for his workplace allergies.

[00:23:03] Speaker 02:
And on June 21st, 2012, it approved up to full-time telework as a reasonable accommodation and denied Mr. Ali's request to move from a cubicle to an office.

[00:23:13] Speaker 02:
Now, under the EEOC's guidance on the Rehabilitation Act,

[00:23:17] Speaker 02:
It is ultimately the choice of the employer to decide which reasonable accommodation will be afforded.

[00:23:23] Speaker 02:
Mr. Ali's supervisor, Denise Hawkins, made the decision to... Hang on, hang on.

[00:23:28] Speaker 05:
Let's look at that guidance, okay?

[00:23:30] Speaker 05:
Sure.

[00:23:31] Speaker 05:
Doesn't just say...

[00:23:34] Speaker 05:
that they're supposed to involve the employee, consult with the individual with a disability, in consultation with the individual, and considering that person's preferences, come up with a reasonable accommodation.

[00:23:55] Speaker 02:
Yes, but it also says- They didn't do that.

[00:23:57] Speaker 05:
They said, we're going to talk to you.

[00:23:58] Speaker 05:
And you're supposed to obtain the specific physical limitations before doing so.

[00:24:06] Speaker 05:
But the EPA said, we're going to talk to you to come together.

[00:24:11] Speaker 05:
Their form letter was certainly accurate.

[00:24:15] Speaker 05:
We're going to do that.

[00:24:16] Speaker 05:
But they didn't do it.

[00:24:18] Speaker 05:
Judge- Judge- Just to finish my point here, they just said,

[00:24:24] Speaker 05:
We found you disabled.

[00:24:26] Speaker 05:
We're going to talk to you, but didn't drop this reasonable accommodation on him within this, you know, within, within.

[00:24:32] Speaker 02:
That is not at all what EPA did.

[00:24:35] Speaker 02:
What EPA did is when Mr. Ali reported that he was having allergic reactions in the workplace.

[00:24:40] Speaker 02:
Ms.

[00:24:40] Speaker 02:
Hawkins conferred with him and filled out reasonable accommodation paperwork for him.

[00:24:45] Speaker 02:
That reasonable accommodation paperwork shows that she collected information from Mr. Ali.

[00:24:50] Speaker 02:
It specifies what the exact accommodation that he requested was.

[00:24:54] Speaker 02:
It notes that he requested an office with four walls, a door, and a ceiling.

[00:24:58] Speaker 02:
She also, in addition to conferring with him in advance of deciding the reasonable accommodation about which accommodation he wanted, she also conferred with him about the nature of his disability.

[00:25:08] Speaker 02:
He initially submitted a bunch of outdated letters that had already been rejected by the agency and by a district court and by this court in litigation.

[00:25:15] Speaker 02:
He then submitted an updated letter that was just as big as those updated as those old letters.

[00:25:19] Speaker 02:
So she asked him to submit yet another letter that letter.

[00:25:23] Speaker 04:
He has a disability.

[00:25:24] Speaker 04:
He ended up getting them the materials.

[00:25:28] Speaker 04:
So I think the point are you suggesting that Hawkins was frustrated with all that back and forth and therefore had done enough.

[00:25:33] Speaker 02:
No, no, no.

[00:25:34] Speaker 02:
There's no evidence at all that she was frustrated.

[00:25:36] Speaker 02:
I'm just trying to respond to the contention that nobody conferred with Mr. Ali about the nature of his disability.

[00:25:42] Speaker 04:
No, it's the nature of the accommodation and how it matches the established disability.

[00:25:47] Speaker 04:
So that's really if you focus on that's what we're concerned about.

[00:25:51] Speaker 02:
So they both understood the nature of the accommodation that he was requesting.

[00:25:54] Speaker 02:
And after getting updated medical documentation,

[00:25:57] Speaker 05:
They understood the nature of his disabilities, including not just perfumes as you talked about in your brief, but volatile organic compounds.

[00:26:06] Speaker 02:
Absolutely.

[00:26:06] Speaker 02:
So we noted in our brief that the perfumes were certainly the focus.

[00:26:11] Speaker 02:
It was what prompted his communication with Miss Washington.

[00:26:14] Speaker 02:
But I think we acknowledge, you know, Amicus makes the point in the reply, and we completely agree that his doctor noted that he had multiple allergies to a number of different compounds, some specified, some unspecified.

[00:26:27] Speaker 05:
And on June 21, did Hawkins say

[00:26:32] Speaker 05:
She will talk to him before proposing a reasonable accommodation.

[00:26:37] Speaker 02:
Yes, she did.

[00:26:39] Speaker 05:
Did she talk to him that same day before she issued?

[00:26:44] Speaker 05:
Because that same day is when she issued the work at home.

[00:26:47] Speaker 05:
She said, I will talk, and then issued the reasonable accommodation.

[00:26:50] Speaker 05:
Between the communication that said, I will talk with you, and the paper that said, here's your reasonable accommodation, between that time, did she talk with him?

[00:26:58] Speaker 02:
She certainly talked with him in order to fill out the reasonable accommodation paperwork.

[00:27:02] Speaker 05:
Was that that date?

[00:27:03] Speaker 05:
And she certainly... I'm talking about... I'm going to try this again.

[00:27:06] Speaker 05:
On June 21st, she says, we recognize you have a disability.

[00:27:14] Speaker 05:
I'm going to talk to you before proposing a reasonable accommodation.

[00:27:18] Speaker 05:
Right?

[00:27:19] Speaker 05:
That's in the record.

[00:27:21] Speaker 05:
On June 21st, she then offered

[00:27:26] Speaker 05:
the work at home or proposed the work at home accommodation.

[00:27:29] Speaker 02:
It was approved.

[00:27:29] Speaker 02:
That was a final approval.

[00:27:31] Speaker 05:
Same.

[00:27:31] Speaker 05:
Okay.

[00:27:32] Speaker 05:
Approved on the same day.

[00:27:33] Speaker 05:
And she between those two things, when she said she would talk to him and when she issued what you're calling the final approval, did she speak with them?

[00:27:42] Speaker 05:
Does the record or did you only ask you, does the record show any evidence that they spoke in that window?

[00:27:48] Speaker 02:
It was all done at the same time.

[00:27:49] Speaker 02:
What the record shows is that she conferred with Mr. Ollie, certainly when she filled out the paperwork on his behalf.

[00:27:53] Speaker 05:
Before she issued that form, she issued a form, I'm gonna try this one more time.

[00:27:57] Speaker 05:
I'm asking about a specific window of time.

[00:28:00] Speaker 05:
She issued the form that said, we find you disabled.

[00:28:03] Speaker 05:
And that form said, I will talk with you before offering a reasonable accommodation, correct?

[00:28:12] Speaker 02:
Correct, it looks like.

[00:28:13] Speaker 05:
And then she offered the final,

[00:28:17] Speaker 05:
accommodation.

[00:28:19] Speaker 05:
So there may not have been any window of time.

[00:28:21] Speaker 05:
Maybe it was the same exact same moment.

[00:28:25] Speaker 05:
But let's assume there's a window in time between I will talk to you, here's the final offer of accommodation.

[00:28:32] Speaker 05:
If there is anyone, you can tell me if there's no window at all.

[00:28:35] Speaker 05:
But there is a window did she does a record show that there was any communication.

[00:28:38] Speaker 02:
It appears that that determination of disability was issued on the same day as both the approval of the telework and the denial of the office.

[00:28:47] Speaker 05:
And the reason for that is I'm not asking that I'm asking is there any record evidence.

[00:28:53] Speaker 05:
That she spoke with him as she said she would well.

[00:28:57] Speaker 02:
Yes, there's definitely record evidence that she spoke with him.

[00:29:01] Speaker 05:
On June 21st?

[00:29:02] Speaker 02:
I don't know about on June 21st.

[00:29:03] Speaker 05:
That's what it has to be for the window that I'm talking about.

[00:29:06] Speaker 02:
There's no indication one way or another whether she spoke with him on June 21st.

[00:29:11] Speaker 02:
But she certainly spoke with him before.

[00:29:12] Speaker 05:
She would have a record of it if she did.

[00:29:14] Speaker 02:
Not necessarily.

[00:29:15] Speaker 02:
I mean, this is an interactive process.

[00:29:16] Speaker 02:
The regulations describe it as flexible and informal.

[00:29:19] Speaker 02:
It is not necessarily documented in some sort of specific way.

[00:29:22] Speaker 05:
So this is an open factual question, whether having promised to speak with him before offering the reasonable accommodation.

[00:29:31] Speaker 05:
She did or you're saying maybe she didn't.

[00:29:32] Speaker 05:
Maybe she didn't.

[00:29:33] Speaker 05:
We don't know.

[00:29:33] Speaker 05:
She certainly spoke with him before offering reasonable accommodation or between after offering to talk and offering the accommodation.

[00:29:40] Speaker 05:
That's the only window I'm talking about.

[00:29:42] Speaker 02:
I don't believe so because I believe they were issued simultaneously.

[00:29:45] Speaker 02:
She may have also talked to him on that day.

[00:29:47] Speaker 02:
It's not clear one way or the other.

[00:29:48] Speaker 02:
What is there, your honor, is the stone.

[00:29:51] Speaker 03:
I mean, if they say, OK, you can work at home,

[00:29:55] Speaker 03:
There's nothing to prevent him once they say that from coming back and saying, hey, wait a minute, let's talk this over.

[00:30:02] Speaker 03:
There's no problem with that.

[00:30:03] Speaker 03:
There's no law requiring that.

[00:30:06] Speaker 02:
No, that's absolutely right, Judge Randolph.

[00:30:08] Speaker 02:
And it's an important point that I want to hit, because the record actually indicates that many management officials did speak with Mr. Ali after the agency approved that telework.

[00:30:18] Speaker 02:
And again, that approval came after they had considered, as the EEOC's guidance says employers should do,

[00:30:24] Speaker 02:
They considered his proposal for an office and determined that telework would be more appropriate.

[00:30:28] Speaker 02:
They immediately approved that.

[00:30:30] Speaker 05:
What did she mean?

[00:30:32] Speaker 05:
They approved it.

[00:30:34] Speaker 05:
What did she mean when she said on June 21st in finding the disability, at this time, I would like to meet with you to explore and discuss?

[00:30:47] Speaker 05:
What did she mean?

[00:30:48] Speaker 02:
I think it means that it refers to what the interactive process is.

[00:30:53] Speaker 02:
I want to be clear that there was discussions with him beforehand.

[00:30:57] Speaker 02:
They had already considered his proposed accommodation.

[00:30:59] Speaker 02:
And I want to be clear that there were also discussions with him afterwards.

[00:31:02] Speaker 05:
Did she mean it or did she not mean it?

[00:31:03] Speaker 02:
She did speak with him.

[00:31:04] Speaker 02:
I don't think there was any reason.

[00:31:06] Speaker 05:
No, did she mean when she said at this time?

[00:31:07] Speaker 05:
That time was June 21st.

[00:31:09] Speaker 05:
She certainly.

[00:31:10] Speaker 05:
offering a reasonable combination.

[00:31:12] Speaker 05:
I would like to speak with you to explore, explore and discuss at that point.

[00:31:18] Speaker 02:
There was no reason to delay.

[00:31:20] Speaker 02:
Mr. Mr. Ali has complained.

[00:31:22] Speaker 02:
She absolutely meant it.

[00:31:23] Speaker 02:
And she did speak with him.

[00:31:24] Speaker 05:
Mr. Ali has been complaining with him on June 21st.

[00:31:27] Speaker 02:
As I said, the record doesn't indicate one way or the other.

[00:31:30] Speaker 05:
Okay.

[00:31:31] Speaker 05:
All right.

[00:31:33] Speaker 05:
But she said on June 21st before the accommodation, little in the proposal, little on the final,

[00:31:41] Speaker 05:
I would like to meet with you to explore and discuss.

[00:31:45] Speaker 05:
She already knew at that point about his request for an office.

[00:31:48] Speaker 05:
She also knew that for four years he had worked perfectly fine in a cubicle until EPA decided to take this person who had so much cologne he was making people nauseous, setting off asthma, and put them right next to the guy who has severe allergies.

[00:32:07] Speaker 05:
All right, he then

[00:32:10] Speaker 05:
He's looking for other cubicles.

[00:32:12] Speaker 05:
Yes, he asked for a private office.

[00:32:14] Speaker 05:
He probably thought that would be the safest thing for him.

[00:32:16] Speaker 05:
But he tried other cubicles.

[00:32:18] Speaker 05:
He tried talking to the guy.

[00:32:21] Speaker 05:
He was trying a lot of other, and he was emailing nonstop.

[00:32:25] Speaker 05:
But what I'm confused about is why on June 21, he said, at this time, I would like to meet with you to explore, knowing

[00:32:40] Speaker 05:
his office requests, she's not done.

[00:32:42] Speaker 05:
She said, let's explore.

[00:32:43] Speaker 05:
And knowing he'd been doing some cubicle hobby, right?

[00:32:48] Speaker 05:
Let's explore.

[00:32:49] Speaker 05:
And knowing the cubicles can work for him, because they had worked for four years, if they just don't put his appointment.

[00:32:54] Speaker 05:
So let's explore.

[00:32:56] Speaker 05:
And then she didn't explore.

[00:32:58] Speaker 05:
She issued a final proposal, and then they ignored his email first.

[00:33:01] Speaker 02:
No, no, no.

[00:33:02] Speaker 02:
Your Honor, they did not ignore his emails.

[00:33:04] Speaker 02:
Let me get into the multiple verbal discussions that she had with him.

[00:33:06] Speaker 02:
She testifies at JA.

[00:33:08] Speaker 05:
After June 21st?

[00:33:09] Speaker 02:
Yes, after June 21st.

[00:33:10] Speaker 02:
And again, there's no reason to that.

[00:33:11] Speaker 02:
Mr. Ali complains that he is having allergic reactions in the workplace, and there's no reason to not approve him immediate relief.

[00:33:17] Speaker 02:
before having those discussions with him about that further.

[00:33:22] Speaker 02:
But at that point, there's no indication that that was not a reasonable accommodation.

[00:33:25] Speaker 02:
But even still, the agency does speak with him further.

[00:33:27] Speaker 02:
Denise Hawkins at JA 105, this is on page 185 of her EEOC hearing testimony, says that she had several verbal conversations with Mr. Ali, where she said that the agency will provide Mr. Ali with whatever he needs to work for her home,

[00:33:41] Speaker 02:
It will purchase office equipment for him and that it can be a fully flexible arrangement.

[00:33:46] Speaker 02:
He can come into the office as much as he wants and he can work his home as much as he needs for his health.

[00:33:50] Speaker 02:
And this is an important point.

[00:33:51] Speaker 05:
His cubicle is where he's going to have to work is next to this guy with so much perfume.

[00:33:56] Speaker 05:
He's making multiple employees sick.

[00:33:58] Speaker 02:
This is an important point because, well, I mean, Your Honor, he cannot be in any cubicle in the office.

[00:34:04] Speaker 05:
Well, we know he can be in a cubicle.

[00:34:05] Speaker 05:
He was in a cubicle for four years.

[00:34:07] Speaker 02:
But then he says he can.

[00:34:08] Speaker 05:
And he asked them to move this person.

[00:34:09] Speaker 05:
He asked them to ask this person not to wear the loan.

[00:34:13] Speaker 05:
And they said, you move.

[00:34:14] Speaker 02:
And the information from his doctor says that he is allergic to multiple things in the workplace.

[00:34:20] Speaker 02:
Yes, but he didn't.

[00:34:21] Speaker 02:
That his symptoms are worse.

[00:34:21] Speaker 05:
Is it true or false that he worked successfully for four years in a cubicle?

[00:34:25] Speaker 02:
It's true.

[00:34:25] Speaker 02:
It's also true that he- Or this guy showed up.

[00:34:27] Speaker 02:
That's true.

[00:34:28] Speaker 02:
It's also true that he worked for six months successfully on telework in 2007.

[00:34:32] Speaker 05:
It is not.

[00:34:33] Speaker 05:
It is very much a disputed fact because he says he was ridiculed by other employees having worked at home.

[00:34:42] Speaker 05:
He says that he was ridiculed by other employees for having worked at home.

[00:34:47] Speaker 05:
that he's concerned about the fumes within his house.

[00:34:51] Speaker 05:
If he has to do whatever volume of printing, we don't know, disputed fact at his house.

[00:34:56] Speaker 05:
Maybe it's no printing.

[00:34:57] Speaker 05:
You win.

[00:34:59] Speaker 05:
Maybe it's a lot of printing.

[00:35:00] Speaker 05:
That's an issue.

[00:35:03] Speaker 05:
he's concerned about.

[00:35:04] Speaker 05:
So I don't think that's fair to say at all.

[00:35:06] Speaker 05:
And he says there are all kinds of litigation and stuff.

[00:35:09] Speaker 05:
They let me work at home and then they told me to get back.

[00:35:11] Speaker 05:
So it was very unsettling for him when it happened for that six months before.

[00:35:14] Speaker 02:
There's no admissible evidence that he brought that to the attention.

[00:35:17] Speaker 02:
He brought a home printing to the attention of his employer during the interactive process.

[00:35:23] Speaker 02:
There is actually.

[00:35:24] Speaker 02:
There's the OCR report.

[00:35:25] Speaker 04:
Well, he testified that he told the management contemporaneously.

[00:35:31] Speaker 04:
I mean, a jury might just disbelieve it, but that's not evidence that we can make a finding about.

[00:35:36] Speaker 04:
At summary judgment, that could be reduced to admissible evidence.

[00:35:39] Speaker 04:
You do refer to admissible evidence in your brief, but a party's testimony about what he said could, just as Ms.

[00:35:46] Speaker 04:
Hawkins' testimony about what she

[00:35:48] Speaker 04:
had an unrecorded conversations.

[00:35:50] Speaker 04:
But at this posture, no.

[00:35:52] Speaker 02:
No, I think all that is correct, Your Honor.

[00:35:54] Speaker 02:
But I think that he testified in his deposition that that was an issue.

[00:35:58] Speaker 02:
I don't believe he testified in the deposition that he conveyed that to management.

[00:36:02] Speaker 02:
What Amicus refers to to say that he conveyed it to management is notes from an EEO counselor in the OCR report.

[00:36:09] Speaker 04:
But I believe he did say then in the OCR report that he had told them.

[00:36:15] Speaker 02:
He did say that in the OCR report, absolutely.

[00:36:17] Speaker 02:
But the problem with that is it's not only the OCR report is not only hearsay, it's hearsay within hearsay.

[00:36:22] Speaker 02:
And so while the OCR report may be converted to admissible evidence, the hearsay within it cannot be converted to admissible evidence.

[00:36:27] Speaker 04:
Well, he's a party and he said something that if it is true, creates a material issue.

[00:36:35] Speaker 02:
Understood.

[00:36:36] Speaker 02:
But even getting past that, what he says in the OCR report is if he had to print something at home,

[00:36:41] Speaker 02:
it would exacerbate his allergies.

[00:36:42] Speaker 02:
He doesn't say that he would actually have to print something at home.

[00:36:45] Speaker 05:
Where's the evidence in the record on that question of whether he'd have to print or not at home?

[00:36:49] Speaker 02:
The evidence is that he would not.

[00:36:51] Speaker 02:
Because as I said, the accommodation that was afforded to him was that he could come into the office and use it as much as he pleased and work from home as much as he needed.

[00:36:59] Speaker 02:
He says, I can't.

[00:37:00] Speaker 05:
I mean, the whole premise of offering this work at home thing was that there's nothing we can do to accommodate you here in the office.

[00:37:09] Speaker 05:
Well, nothing we can do because you're allergic to so many things.

[00:37:12] Speaker 05:
So the only thing we think is reasonable is for you to go work at home.

[00:37:15] Speaker 05:
That is the entire premise of their offer.

[00:37:19] Speaker 05:
So I understand it.

[00:37:19] Speaker 05:
And so then to say, well, if you need to print, you'll have to come into that office that we sent you home for because you can't work function in the office.

[00:37:29] Speaker 02:
Yeah, I don't think there's any, the employer didn't determine he can't be in the office at all.

[00:37:34] Speaker 02:
The employer certainly accepted.

[00:37:37] Speaker 02:
The employer certainly accepted the medical information after repeat follow ups from his medical provider.

[00:37:45] Speaker 05:
He was allergic to multiple things.

[00:37:48] Speaker 05:
Following the medical report is sufficient or is the guidance vision talking directly about specific, not just the general and not just the medical information specific needs of the individual.

[00:38:01] Speaker 02:
The guidance says that it should learn the needs of the individual, which it did through repeated follow ups for medical documentation with the employee.

[00:38:07] Speaker 02:
But it also says, the ultimate discretion to choose between effective accommodations, let rests with the employer.

[00:38:13] Speaker 05:
That's not exactly right.

[00:38:14] Speaker 02:
That is a quote on page 424.

[00:38:16] Speaker 05:
Want to read the whole thing?

[00:38:18] Speaker 02:
It's 29 CFR.

[00:38:21] Speaker 02:
This is the appendix to part 1630 on page 424 of the 2003 edition.

[00:38:26] Speaker 05:
says, if more than one accommodation will enable the individual to perform the essential functions, or if the individual would prefer to provide his or her own accommodation, the preference of the individual with a disability should be given primary consideration.

[00:38:39] Speaker 05:
However, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations.

[00:38:46] Speaker 02:
Exactly.

[00:38:47] Speaker 05:
OK.

[00:38:48] Speaker 05:
When choosing between effective accommodations according to him, it's a fact dispute.

[00:38:51] Speaker 05:
It's a fact dispute.

[00:38:51] Speaker 02:
That there's no fact dispute that the employer allowed him to work at home as much as he needed to provide for his health and that he could come into the office.

[00:39:00] Speaker 05:
There's a factual dispute as to whether working at home was an effective accommodation and

[00:39:06] Speaker 05:
that then that's a material.

[00:39:08] Speaker 02:
Well, the things that they say that make working from home an ineffective accommodation is the isolation that having to use printer, but but none of that is inherent.

[00:39:18] Speaker 02:
Amicus characterizes the accommodation inherent about the isolation of working from home because he can come into the office as much as his help permits.

[00:39:28] Speaker 05:
If I don't, I'm sorry, I'm just really confused here because

[00:39:32] Speaker 05:
The explanation I saw on the record for work at home was you are allergic to so many things that it just doesn't seem like you're going to be able to work here.

[00:39:43] Speaker 05:
And we can't do private office.

[00:39:44] Speaker 05:
We don't have one for you.

[00:39:46] Speaker 05:
Maybe other sections do, but we don't have one for you.

[00:39:48] Speaker 05:
So it's not going to work for you.

[00:39:49] Speaker 05:
There's nothing we can do for you here in the building, work from home.

[00:39:53] Speaker 05:
And then to say that was an effective accommodation because he would have to come in to do things.

[00:40:00] Speaker 05:
I mean, if he can come in to do some work,

[00:40:03] Speaker 05:
How are they going to accommodate him while he's in there to do this flex work?

[00:40:07] Speaker 05:
What accommodation will they offer then?

[00:40:08] Speaker 02:
If he cannot even be in the office for an hour to use the printer or be in a common area, then the enclosed office would not be an effective accommodation because he would have to be in the common areas in order to do that.

[00:40:20] Speaker 05:
So we know that he can, in fact, function in this office because he did for four years.

[00:40:23] Speaker 02:
On a limited basis, yes.

[00:40:25] Speaker 05:
For four years, that's a pretty long time.

[00:40:26] Speaker 05:
I wouldn't call it a limited basis.

[00:40:28] Speaker 02:
Well, but what he testifies is that by the time he requests the accommodation, his doctor is saying he has multiple allergies that are exacerbated by work.

[00:40:36] Speaker 02:
And he says that he cannot even be in a cubicle that is in a high-traffic area, because the possibility that an individual with perfume simply passing by him will exacerbate his allergies.

[00:40:46] Speaker 02:
And that's the information the agency is working on here.

[00:40:48] Speaker 02:
But the fact that he- Right.

[00:40:50] Speaker 04:
I mean, the agency can say, we're going to take the position that that is a reasonable accommodation and stand on that.

[00:40:55] Speaker 04:
And it didn't.

[00:40:58] Speaker 04:
I find the study about the workplace air quality a little bit frustrating because the agency uses it to say, even if you had your own office, that wouldn't resolve the situation because the air quality is the same in and out.

[00:41:17] Speaker 04:
I don't know about you, but I've worked in offices with people in open cubicles and fragrances versus a closed office, and actually,

[00:41:27] Speaker 04:
I mean, I trust the record is what the record is, but apparently that was done on a day when there weren't.

[00:41:33] Speaker 04:
you know, the person who was mainly causing the problem wasn't present.

[00:41:38] Speaker 04:
And I'm just not sure what to make of that because this record is what it is.

[00:41:41] Speaker 02:
I think it doesn't necessarily say something to him being directly proximate to someone with the perfumes.

[00:41:46] Speaker 02:
But I mean, he's saying that he can't be in a cubicle anywhere within that environment.

[00:41:51] Speaker 02:
And he's also saying that there are workplace allergies other than perfumes and colognes that exacerbate his allergies.

[00:41:56] Speaker 02:
So I think that the air quality test does speak to those.

[00:41:59] Speaker 05:
Were they testing?

[00:42:00] Speaker 05:
Is that air quality test for his allergens?

[00:42:02] Speaker 02:
It did.

[00:42:03] Speaker 02:
It tested for volatile organic compounds and it also tested for fungal matter.

[00:42:08] Speaker 05:
And it found actually elevated fungal matter in the cubicle area.

[00:42:12] Speaker 02:
Not really, Your Honor.

[00:42:14] Speaker 02:
What the report says is that the proper comparison is not between the two areas that are tested.

[00:42:19] Speaker 02:
The proper comparison is the indoor readings with the outdoor readings.

[00:42:22] Speaker 02:
So you had a 110 colony producing units per square meter at the cubicle.

[00:42:28] Speaker 02:
and you had 210 in the office that compares i'm sorry that's reversed 210 at the cubicle and 110 in the office that compares to 5700 outdoors and so what you have is both of those levels are extremely low but if it's higher that would include like mold allergies if it's higher double in the cubicles in the office

[00:42:52] Speaker 02:
Not that the for him to figure out how he gets to and from work that the scientists who?

[00:42:56] Speaker 02:
Who who did this invest?

[00:42:58] Speaker 02:
There's no fact disputed fact at all there because there's no indication that 210 CF use per square meter would be any different than 110 CF use per square meter.

[00:43:08] Speaker 02:
Yes, the person who yes, the for this individual person who conducted the test said that the appropriate comparison is not between the two measured areas.

[00:43:15] Speaker 02:
It's between

[00:43:16] Speaker 02:
indoor and outdoor.

[00:43:17] Speaker 05:
Did he say for somebody with allergens as severe as Mr. Ali's, it doesn't make a difference?

[00:43:26] Speaker 02:
Your Honor, I think there's no dispute effect.

[00:43:28] Speaker 02:
There's no evidence in the record at all that 210 as opposed to the 50, which is far lower than the 5700.

[00:43:33] Speaker 05:
That's not part of the finding here.

[00:43:35] Speaker 05:
I mean, this was a general error test.

[00:43:37] Speaker 02:
There's no finding one way or the other.

[00:43:39] Speaker 02:
But what we know about the way the measurements occurred and how they compared to outdoors indicates that they are both extremely low indoors.

[00:43:48] Speaker 02:
And I wanted to get in one point.

[00:43:50] Speaker 02:
I was trying to get into the verbal conversations with Mr. Ali.

[00:43:52] Speaker 02:
And I think these are important because I think a lot of Amicus' arguments are built on this assumption that Mr. Ali was forced to banish himself from the office indefinitely.

[00:44:02] Speaker 02:
And a number of management officials made clear to him after the accommodation was offered that he could be as flexible as he wanted and come into the office as much as he was capable.

[00:44:11] Speaker 02:
Ms.

[00:44:11] Speaker 02:
Hawkins testifies to that at JA 105 at 185.

[00:44:16] Speaker 02:
Miss Hissle McCoy testifies to that at JA 115 at 222.

[00:44:21] Speaker 02:
Mr. Wavin, who was Miss Denise Hawkins' deputy, testifies to that at SJA 232.

[00:44:27] Speaker 02:
We mentioned this in our red brief.

[00:44:30] Speaker 02:
But Amicus just built on this assumption that he was banished indefinitely from the office.

[00:44:34] Speaker 02:
And that's what all of the arguments based on this not being a reasonable accommodation are based on, but they are not consistent with the record.

[00:44:40] Speaker 05:
After the accommodation was offered, did Mr. Ali

[00:44:44] Speaker 05:
Continue to define, try different cubicles.

[00:44:47] Speaker 02:
I believe he did.

[00:44:48] Speaker 02:
I believe he ultimately settled on a cubicle.

[00:44:50] Speaker 05:
After the reasonable accommodation was offered, and he would mention like this cubicle didn't work and this didn't, we have emails about, he tried some, they didn't work.

[00:44:59] Speaker 05:
But you said he eventually settled on one.

[00:45:01] Speaker 05:
And then did he also, there's also evidence, is there not that he told, I can't remember if it was Denise Hawkins with CC or Dirac, but mentioned to supervisory people that he had tried

[00:45:14] Speaker 05:
talking to a Cologne employee about wearing less color, right?

[00:45:21] Speaker 02:
Yes.

[00:45:21] Speaker 02:
And there's also indications that the EPA talked to the Cologne employee.

[00:45:25] Speaker 02:
They also conferred with their labor and relations people to see if they could ban people from wearing Cologne.

[00:45:29] Speaker 02:
They were informed that they could not.

[00:45:31] Speaker 02:
But there were multiple efforts to try to address Mr. Ellis.

[00:45:33] Speaker 05:
So after this accommodation was offered and he said, it's not going to work for me, he was trying other things and reporting back to them the things he was trying and on the results.

[00:45:42] Speaker 02:
As was the EPA.

[00:45:44] Speaker 02:
The EPA made clear to him that his work from home arrangement was as flexible as he wanted to be.

[00:45:49] Speaker 02:
We know that they also offered an air filter for his cubicle.

[00:45:52] Speaker 02:
They suggested that he participate in a cubicle reassignment process.

[00:45:56] Speaker 02:
All of these are interactions with Mr. Alde that are not necessarily part of the written record.

[00:46:01] Speaker 02:
I think Amicus is incorrect to confine the interactive process to just those written emails.

[00:46:05] Speaker 05:
Sounds like the interactive process just kept going then.

[00:46:08] Speaker 02:
I think the EPA was certainly willing to continue discussions with Mr. Ali, but I think that once the EPA offered Mr. Ali a reasonable accommodation.

[00:46:18] Speaker 05:
I was talking about the post offer period.

[00:46:20] Speaker 05:
I thought you were talking about the post.

[00:46:22] Speaker 05:
I'm talking, I mentioned the things that Mr. Ali was doing, I said after

[00:46:26] Speaker 05:
the work at home accommodation was offered.

[00:46:28] Speaker 05:
I thought you were describing things that EPA was doing after the reasonable accommodation.

[00:46:32] Speaker 02:
I was.

[00:46:33] Speaker 02:
I wouldn't quite characterize them as an interactive process because the interactive process is meant to come to a reasonable accommodation.

[00:46:39] Speaker 02:
I think we did that in June of 2012.

[00:46:42] Speaker 04:
But the testimony you had pointed to of Ms.

[00:46:44] Speaker 04:
Hawkins says that there were conversations back and forth between January and June of 2012 when she said that

[00:46:57] Speaker 04:
The offer was completely flexible.

[00:47:03] Speaker 04:
He could stay home as much or as little as he wanted to.

[00:47:05] Speaker 04:
If he didn't have a printer, we could get him one.

[00:47:08] Speaker 04:
And then she identifies that as taking place, as I read it, between January and June.

[00:47:15] Speaker 02:
Can I trouble you for that JA page one more time?

[00:47:17] Speaker 04:
It's 105 to 106.

[00:47:20] Speaker 02:
Thank you, Your Honor.

[00:47:23] Speaker 04:
I think it's a little unclear whether when she's talking about back and forth, that's really the period when she was getting the medical documentation.

[00:47:30] Speaker 04:
I'm just looking at the page numbers that you read out as supporting the idea that there was verbal back and forth.

[00:47:40] Speaker 02:
So certainly she had those conversations with him.

[00:47:42] Speaker 02:
Then I think the other management officials also testified that they continuously told him that he could work from home as much as he wanted to.

[00:47:49] Speaker 02:
They don't give a time period in that particular testimony.

[00:47:54] Speaker 05:
Sorry, so is there record evidence?

[00:47:56] Speaker 05:
I know there's the later communication, and I'm not remembering if it was from Denise Hawkins or somebody else, where after about six or seven months had gone by with him emailing about his progress or lack thereof on cubicle hopping and talking to the Cologne employee, there was an email that said, we've offered you

[00:48:19] Speaker 05:
reasonable accommodation, working at home, nothing about flex there, but just working at home.

[00:48:23] Speaker 05:
And you've some phrase, the extent of let us know if you want to discuss further or something like that.

[00:48:31] Speaker 05:
He emails back as council said, yes, I would like to discuss and settle this with you.

[00:48:38] Speaker 05:
Was there anything else post final accommodation offer and that email?

[00:48:45] Speaker 05:
Some of the undates June, 2012 to that email.

[00:48:49] Speaker 05:
Where you're saying the record shows that there were informal oral communications or email communications.

[00:48:55] Speaker 05:
Where does where where do I find that in the world.

[00:48:58] Speaker 02:
I mean, that the Jay sites that I listed.

[00:48:59] Speaker 02:
We know that some of the undated conversations from discussed by Mrs McCoy and Mr. Wavin may have been after June.

[00:49:08] Speaker 02:
We certainly know that after June.

[00:49:09] Speaker 02:
The agency continued working with him to some extent because they offered to provide the air filter in his cubicle.

[00:49:15] Speaker 02:
They suggested a means for him to obtain a cubicle in a more permanent location.

[00:49:19] Speaker 02:
But as we've argued, the reasonable accommodation was provided in June of 2012.

[00:49:25] Speaker 02:
And the agency does not violate the statutory provision requiring it to make a reasonable accommodation when it has provided a reasonable accommodation.

[00:49:32] Speaker 04:
On the office question, you know, it seems like one of the things that Mr. Ali was concerned about and felt not heard about was that he had, I think he was in EAD, had an individual office, then he was, you know, moved his job and he was working in SHPD.

[00:49:52] Speaker 04:
And he said, you know, there were empty offices still in EAD.

[00:49:55] Speaker 04:
It's the same agency.

[00:49:56] Speaker 04:
I understand it's a different, what is it, division or,

[00:50:01] Speaker 04:
project within it.

[00:50:03] Speaker 04:
But he also, according to his observation, said there was a fellow who was given an office in EAD because the organization that she reported to didn't have space in it.

[00:50:14] Speaker 04:
So I guess the question is, I mean, accommodations sometimes involve organizations going out of their usual path to make something work.

[00:50:26] Speaker 04:
And it's a little hard to tell from this record what the agency's position is on why

[00:50:32] Speaker 04:
it couldn't work something out with a sister division to find an empty office.

[00:50:38] Speaker 02:
Yeah, I acknowledge the record indicates that that was not fully explored working with the sister office.

[00:50:43] Speaker 02:
But I think our contention and the reasoning of the agency in denying the office is not necessarily that it could not under any circumstances provide the office.

[00:50:52] Speaker 02:
What Ms.

[00:50:52] Speaker 02:
Hawkins said was that she determined she decided on telework other than the office, which again is the employer's determination to make.

[00:50:59] Speaker 02:
Because given the medical documentation, Mr. Ali's complaints, that was going to be the most effective accommodation for him because

[00:51:07] Speaker 02:
it would permit him full control over his environment, and it would also prevent him from being exposed to common areas in the office, like the pantry and the restrooms and the hallways, where Mr. Ali might encounter someone wearing colognes or perfumes that would trigger his allergies.

[00:51:24] Speaker 04:
Any questions?

[00:51:27] Speaker 04:
Your position on if the accommodation that's offered is to work from home, and this is in response to Amicus' argument about

[00:51:38] Speaker 04:
work from home that the accommodated employee seeks versus work from home that the accommodated employee does not.

[00:51:45] Speaker 04:
If somebody said, I don't want that.

[00:51:47] Speaker 04:
I don't want to work at home.

[00:51:49] Speaker 04:
That doesn't work for me.

[00:51:50] Speaker 04:
Is it your position that that is not enough to show that the accommodation is not reasonable?

[00:51:59] Speaker 02:
That is not enough, Your Honor.

[00:52:01] Speaker 02:
Why?

[00:52:01] Speaker 02:
That's dictated by this court's decision in Acre versus Washington Hospital Center, which specifies that the obligation of the employer is to provide a reasonable accommodation and not necessarily the employee's preferred accommodation.

[00:52:14] Speaker 04:
Right.

[00:52:14] Speaker 04:
But my question, I think, goes to the premise of your answer, which is, is it a reasonable accommodation if the person, I mean, in an example that Mr. Volchuk pointed to that I recognize there's no evidence of that in this case.

[00:52:26] Speaker 04:
But if somebody

[00:52:28] Speaker 04:
does fear abuse at home and doesn't want to say, but just says, I don't want to be there.

[00:52:43] Speaker 04:
You're saying it's the employee's burden, then, to say why they can't work at their house?

[00:52:49] Speaker 02:
Yes, absolutely.

[00:52:50] Speaker 02:
I think the reasonable accommodation, in terms of what is a reasonable accommodation, I think that's defined in the regulations.

[00:52:56] Speaker 02:
And it's a modification for these purposes.

[00:52:58] Speaker 02:
It's a modification of the way the work is done in a way that will allow the employee with a disability to perform the essential functions of the position.

[00:53:06] Speaker 02:
I think if they're saying your accommodation is to go home, and their home is a place of such fear and dread because of a domestic violence situation, I think that's certainly an instance where they would not be able to perform the essential functions of their position at home.

[00:53:20] Speaker 02:
But Mr. Ali has not said anything like that.

[00:53:24] Speaker 04:
But he has early on in his pro se, he has a takings clause.

[00:53:29] Speaker 04:
And there's something to the notion that if you're hired,

[00:53:32] Speaker 04:
to come into an office.

[00:53:33] Speaker 04:
And this is 2020 hindsight.

[00:53:36] Speaker 04:
We're in a very different culture and practice on telework.

[00:53:40] Speaker 04:
But if you're not hired as a contractor who's responsible for their own work environment, but you're hired to come into an office, and the accommodation is you go somewhere else.

[00:53:54] Speaker 04:
And the person says, I don't want to go somewhere else.

[00:53:57] Speaker 04:
Your view is that that is,

[00:54:00] Speaker 04:
What more is required for the employee?

[00:54:02] Speaker 04:
Do they have to say I'm abused at home or have to say what?

[00:54:06] Speaker 02:
I think they would have to demonstrate that that is not an accommodation.

[00:54:10] Speaker 02:
That's not a modification that would allow them to perform the essential functions of their position.

[00:54:15] Speaker 02:
And being in fear of a domestic abuser would certainly be that kind of situation.

[00:54:19] Speaker 04:
And if they said, well, my spouse and I do better when we have time away from each other.

[00:54:24] Speaker 04:
It's one of the reasons I'm continuing to work.

[00:54:28] Speaker 04:
My spouse likes to read quietly and sometimes have friends over for lunch.

[00:54:34] Speaker 04:
make it not a reasonable accommodation?

[00:54:36] Speaker 02:
I think so.

[00:54:36] Speaker 02:
I think that falls into the realm of a preference, an employee preference, which, as Aka said, that if the employer offers an accommodation, a reasonable accommodation, even if it's not the employee's preferred accommodation.

[00:54:47] Speaker 04:
You said, I think so, but your explanation makes me think that you meant to say, I think not.

[00:54:52] Speaker 02:
Oh, yes.

[00:54:52] Speaker 02:
I think not.

[00:54:54] Speaker 02:
If it's simply that my wife and I prefer to have some time apart,

[00:54:58] Speaker 04:
That would not make the accommodation unreasonable.

[00:55:01] Speaker 02:
That's correct.

[00:55:03] Speaker 02:
That would be in terms of just an employee preference, which as Aka says, it's not about employee preference.

[00:55:08] Speaker 02:
It's about whether or not it meets the definition of a reasonable accommodation, which is that it is a modification that permits the employee to perform their essential functions.

[00:55:21] Speaker 05:
Thank you very much.

[00:55:22] Speaker 02:
Thank you, Your Honors.

[00:55:22] Speaker 02:
Please affirm.

[00:55:29] Speaker 06:
You're on my overarching response.

[00:55:31] Speaker 06:
The arguments you just heard is a procedural posture.

[00:55:33] Speaker 06:
We are on summary judgment.

[00:55:35] Speaker 06:
The record has to be viewed at the light most favorable to Mr Ali.

[00:55:37] Speaker 06:
And the question is, could any reasonable jury find that he was denied a reasonable accommodation?

[00:55:43] Speaker 06:
I submit the answer is, of course he could.

[00:55:45] Speaker 06:
Now, counsel says, why do I focus on the written record?

[00:55:48] Speaker 06:
Why am I limiting myself to the written record?

[00:55:50] Speaker 06:
Well, that's what courts do in deciding summary judgment.

[00:55:52] Speaker 06:
They look at the information in the record.

[00:55:54] Speaker 06:
Now, counsel for EPA says there were oral conversations, and Mr. Ali was offered

[00:55:59] Speaker 06:
a more flexible arrangement when he could come in when he wanted.

[00:56:02] Speaker 06:
First of all, the conversations he's talking about, as I think Judge Pillard was discussing with him, they're all undated.

[00:56:06] Speaker 06:
So they might have occurred prior to the issuance of reasonable accommodation.

[00:56:11] Speaker 06:
But in any event, the question is, could a jury, number one, find that that was not the offer, that the offer was 100% telework?

[00:56:18] Speaker 06:
And of course, a jury could find that.

[00:56:19] Speaker 06:
First of all, JA208, the formal offer that was made, says permission to work at home full time, quote unquote.

[00:56:26] Speaker 06:
And JA 241, subsequent in time to all of the oral conversations the EPA counsel was just relying on, this is the email that came back finally after EPA ignoring Mr. Ali for seven months.

[00:56:38] Speaker 06:
EPA says, you have been offered a reasonable accommodation of 100% telework.

[00:56:44] Speaker 06:
Would a jury have to credit that?

[00:56:46] Speaker 06:
Or could they instead credit the oral conversations that EPA counsel was talking about?

[00:56:50] Speaker 06:
Maybe they could.

[00:56:51] Speaker 06:
Would they have to?

[00:56:53] Speaker 06:
Reject the written evidence in favor of the oral test?

[00:56:56] Speaker 06:
Of course not.

[00:56:57] Speaker 06:
And that's why this gets to a jury.

[00:56:58] Speaker 06:
Now there was discussion about the air filter and the air quality test.

[00:57:01] Speaker 06:
I frankly don't understand the relevance of this.

[00:57:03] Speaker 06:
EPA did not argue in its brief for affirmance based on the offer of an air filter.

[00:57:09] Speaker 06:
So that's waived on appeal.

[00:57:10] Speaker 06:
In any event, Mr. Ali testified in his deposition in this case that he had previously tried an air filter and not had success with it in a job in West Virginia.

[00:57:18] Speaker 06:
A jury could credit that evidence.

[00:57:20] Speaker 06:
As Judge Pillard was discussing, I think in addition as the air quality test itself, it was done over a 24 hour period and it is not clear whether the employee whose cologne was causing all these problems was either there.

[00:57:31] Speaker 06:
J96 to 97, Ms.

[00:57:33] Speaker 06:
Hawkins says she doesn't know if he was there.

[00:57:35] Speaker 06:
JA111, Ms.

[00:57:36] Speaker 06:
Heisel McCoy says she doesn't know if he was there.

[00:57:39] Speaker 06:
So the air quality test is, I submit, not at all relevant here.

[00:57:42] Speaker 06:
Judge Millett, you were absolutely correct in the extended colloquy you were having with EPA counsel.

[00:57:46] Speaker 06:
There's no evidence of any discussions

[00:57:48] Speaker 06:
in the period between the issuance of the formal disability determination in June 2012, JA206, and the issuance of the approval to do telework same day in June, JA208.

[00:58:01] Speaker 06:
It will not be here safer.

[00:58:02] Speaker 06:
Just interject you had mentioned on the permission to work home all time to a. And I thought you mentioned to 48 but it's clearly not the right to 41 is the email in March 2013 from his eyes on McCoy to Mister Ali in response to the 7th email and 6 they had ignored but finally it's a.

[00:58:22] Speaker 06:
Ali, you have been offered a reasonable accommodation of 100% tolerance.

[00:58:26] Speaker 06:
So this notion of there was an option to come in as much as he wanted.

[00:58:29] Speaker 06:
The jury didn't have to find that that offer was ever made.

[00:58:32] Speaker 06:
And a jury could find, if it was made, that it wasn't reasonable.

[00:58:35] Speaker 06:
The record shows that he lives outside of Washington, DC.

[00:58:37] Speaker 06:
The notion of coming in a couple of times a week or whenever he wants to.

[00:58:41] Speaker 06:
First of all, the whole premise of this judgment letter, as you were discussing with him, is that the office is, at times, in many ways, not a safe place for him to be.

[00:58:50] Speaker 06:
But in any event, the notion of he could just get out of his segregation by traveling 10 miles a day, the consistency, whether that's a reasonable combination, all a question for the jury.

[00:58:59] Speaker 03:
How did he get into work?

[00:59:00] Speaker 06:
I'm sorry?

[00:59:01] Speaker 03:
How did he get into work?

[00:59:02] Speaker 06:
I'm not aware of information in the record about how he commuted to work, Judge Randolph.

[00:59:05] Speaker 06:
He didn't walk.

[00:59:06] Speaker 06:
I'm quite confident he did not walk.

[00:59:08] Speaker 03:
He had to take public transportation or private transportation.

[00:59:12] Speaker 06:
Yes.

[00:59:12] Speaker 03:
Right.

[00:59:13] Speaker 03:
And the car fumes don't bother him?

[00:59:16] Speaker 06:
There's no evidence to that effect now.

[00:59:17] Speaker 06:
Of course, to the extent the court was willing to get into this, and EPA is not arguing for affirmance based on that.

[00:59:23] Speaker 03:
You made a statement that the air quality test was not relevant.

[00:59:28] Speaker 03:
You didn't mean that, did you?

[00:59:30] Speaker 06:
I do not believe it is relevant to whether summary judgment should.

[00:59:34] Speaker 03:
What's your definition of relevancy?

[00:59:36] Speaker 06:
I would take it right out of the rules of evidence tending to make a material.

[00:59:39] Speaker 03:
It makes a fact of consequence more likely with the evidence than without it.

[00:59:46] Speaker 03:
Correct.

[00:59:46] Speaker 03:
So how can that possibly be not relevant?

[00:59:52] Speaker 03:
It's more likely that the air quality was the same within the building with all the cubicles and the

[00:59:59] Speaker 03:
private offices with that evidence than without it, isn't it?

[01:00:04] Speaker 06:
No, Judge Reddorf, for the reason I was suggesting a moment ago, which is that there's no evidence, and in fact, people testified they weren't aware whether the person whose cologne was causing the problem.

[01:00:14] Speaker 03:
It doesn't have to be conclusive.

[01:00:16] Speaker 03:
It has to be more likely with the evidence than without it.

[01:00:19] Speaker 03:
So it's clearly relevant.

[01:00:22] Speaker 06:
I don't mean to get hung up on relevance, Judge Randolph.

[01:00:24] Speaker 06:
I don't think it bears on the issue.

[01:00:26] Speaker 03:
You brought it up.

[01:00:27] Speaker 06:
My apologies, Dan.

[01:00:28] Speaker 06:
I don't think it bears on the issue principally because EPA is not arguing on appeal in this court that summary judgment should be affirmed because of the air filter test or its air quality test or its offer of an air filter.

[01:00:42] Speaker 06:
It certainly would not be hearsay, as Judge Pillard, I think you were discussing with EPA counsel, for Mr. Ali to just get in the witness chair at trial and say, I told EPA at the time about the printer issue.

[01:00:54] Speaker 06:
The evidence I pointed to before suggests he would do that, seal JA-50, JA-89, JA-236.

[01:01:00] Speaker 06:
And it wouldn't be hearsay because it would not be offered for the truth of the fact that he was in fact allergic.

[01:01:05] Speaker 06:
That's not even disputed here.

[01:01:06] Speaker 06:
It would be offered for notice.

[01:01:08] Speaker 06:
which is obviously outside of the truth of the matter permitted.

[01:01:11] Speaker 06:
Now, Mr. EPA counsel said at one point that there is no evidence in the record that he needed to print.

[01:01:16] Speaker 06:
I think I alluded to it in the beginning.

[01:01:18] Speaker 06:
There is evidence on JA-47.

[01:01:21] Speaker 06:
Ms.

[01:01:21] Speaker 06:
Hawkins affidavit to the EEO during the EEO proceedings, she said, quote, Mr. Ali,

[01:01:26] Speaker 06:
would need to print from the internet, whether he was at home or in the office.

[01:01:30] Speaker 06:
So even if you don't accept my earlier argument, it's a reasonable inference that an EPA economist needs to print from home, a jury could rely on that evidence to find that he did.

[01:01:38] Speaker 06:
Your Honor, unless the Court has additional questions, I'll ask for a reversal.

[01:01:44] Speaker 05:
All right.

[01:01:45] Speaker 05:
Thank you.

[01:01:45] Speaker 05:
Mr. Volchek, you were appointed by the Court to appear as amicus in support of Appellant's position in this case.

[01:01:52] Speaker 05:
And we thank you very much for your assistance.

[01:01:54] Speaker 05:
Thank you, Your Honor.

[01:01:57] Speaker 05:
The case is submitted.