[00:00:00] Speaker 01:
Good morning, Your Honors.

[00:00:18] Speaker 04:
Erica Hashimoto from the Georgetown Law Center's Appellate Litigation Clinic.

[00:00:23] Speaker 04:
With the court's permission, third year law student Ashley Floyd in our clinic will be presenting the argument on behalf of Amicus in support of Mr. Mortar.

[00:00:34] Speaker 04:
Thank you very much.

[00:00:36] Speaker 06:
Thank you.

[00:00:39] Speaker 06:
Ms.

[00:00:40] Speaker 06:
Floyd?

[00:00:52] Speaker 05:
May it please the court.

[00:00:54] Speaker 05:
When DIA learned that Mr. Mortar, a man who was dedicated over three decades to serving his country, had been diagnosed with an anxiety disorder, it chose not to accommodate this disability as encouraged by DOD policy, but to reassign him to an entirely different position hundreds of miles away from his family and his home.

[00:01:13] Speaker 05:
First, the district court erred when it held that Mr. Mortar failed to exhaust his reasonable accommodation claim.

[00:01:22] Speaker 05:
The district court aired when it held that no reasonable jury could find the secretary's proper justification as pretext for intentional discrimination.

[00:01:30] Speaker 05:
This court should reverse both holdings.

[00:01:33] Speaker 05:
Mr. Mortar exhausted his reasonable accommodation claim because DIA had sufficient notice that he was raising that claim.

[00:01:41] Speaker 05:
Not only did he raise the claim in his EEO complaints, but both the AJ and EEOC ruled on the merits of that claim.

[00:01:49] Speaker 05:
Here, the procedural posture of the administrative proceedings helps establish this point.

[00:01:56] Speaker 05:
First, the AJ ruled on the merits of Mr. Mortar's reasonable accommodation claim.

[00:02:02] Speaker 05:
It decided that although Mr. Mortar was entitled to a reasonable accommodation, he was not necessarily entitled to one of his choosing.

[00:02:11] Speaker 05:
The agency implemented this order

[00:02:15] Speaker 05:
Appeal, the EEOC reversed and vacated the judgment in part for two reasons.

[00:02:21] Speaker 05:
First, because in addition to raising a reasonable accommodation claim, the EEOC recognized that Mr. Mortar's complaint had raised a disparate treatment claim and the agency needed to conduct factual investigation on that matter.

[00:02:34] Speaker 05:
Second, it found that the

[00:02:36] Speaker 05:
record was inadequately developed with respect to why Mr. Mortar was no longer permitted to work at SOCOM, given that he had been there for years without having successfully completed a polygraph examination.

[00:02:50] Speaker 02:
In the informal discrimination complaint, which I think was in June of 2014, and then again in the formal discrimination complaint, which I think was in July 2014,

[00:03:04] Speaker 02:
What's the best sentence that you can point to and say, ah, here it is.

[00:03:12] Speaker 02:
Here is Mr. Mortar requesting an accommodation.

[00:03:18] Speaker 05:
To directly answer your question with one sentence, I would point the court to JA 232.

[00:03:24] Speaker 05:
At the bottom of the page, it begins, in addition, CP, which is Mr. Mortar, provided that he believes he is being discriminated against due to a mental disability that essentially invalidates measurements obtained through the repetitive.

[00:03:37] Speaker 06:
Sorry, what page are you on?

[00:03:38] Speaker 05:
I'm not seeing it.

[00:03:39] Speaker 05:
J8232, apologies, and J8233.

[00:03:41] Speaker 05:
Okay, thank you.

[00:03:45] Speaker 05:
Yes.

[00:03:45] Speaker 05:
To continue, that essentially invalidates measurements obtained through the repetitive use of the polygraph examination.

[00:03:51] Speaker 05:
Although that's just one sentence, I think the following sentences are also helpful to establish this point, which is that Mr. Mortar added that his inability to perform satisfactorily on the polygraph examination is a direct result of the symptoms associated with the mental condition known as anxiety disorder.

[00:04:08] Speaker 05:
In the next paragraph, Mr. Mortar explains that he believes his reassignment was, and their continued reliance on the polygraph examinations was in violation of DOD policy.

[00:04:20] Speaker 05:
which directs that no unfavorable administrative actions can be taken against an individual solely on the basis of an incomplete polygraph examination.

[00:04:28] Speaker 05:
So that's in his complaint where I would direct the court to find.

[00:04:31] Speaker 06:
But also on 230 true section in part E.2 is requested remedies, one of which is suspend the pending reassignment until the polygraph issue is resolved.

[00:04:43] Speaker 05:
That's correct, Your Honor.

[00:04:44] Speaker 05:
That also points to the fact that Mr. Mortar was making clear to the agency that he was requesting to be accommodated per DOD policy for his inability to complete the polygraph examination procedures.

[00:05:04] Speaker 05:
And again, just to

[00:05:06] Speaker 05:
Remind the court that the purpose of the exhaustion doctrine is to give the agency sufficient notice of the claim and the opportunity to investigate that claim and resolve the matter internally.

[00:05:16] Speaker 05:
Here, this was more than satisfied because Mr. Mortar raised the claim in his complaints, but also because the AJ and EEOC recognized that that claim was there.

[00:05:25] Speaker 06:
And in his formal complaint when he says J229, the corrective action he's seeking is

[00:05:36] Speaker 06:
Either return to work there or another position within the local community area.

[00:05:42] Speaker 06:
You read that also as a reasonable accommodation.

[00:05:44] Speaker 06:
That's correct your honor.

[00:05:44] Speaker 06:
So both the informal and formal are requesting relief.

[00:05:48] Speaker 06:
It's not damages or anything like that.

[00:05:50] Speaker 06:
It's an adjustment.

[00:05:51] Speaker 05:
Correct.

[00:05:52] Speaker 05:
At the time Mr. Mortar was requesting relief to be exempted postponed or the

[00:05:59] Speaker 05:
a deferment of the polygraph examinations, which again is consistent with DOD policy, which recognizes that polygraph examinations are a supplement to and not a substitute for other investigative procedures.

[00:06:10] Speaker 02:
I think maybe the government says that there Mr. Mortar was not asking for an accommodation.

[00:06:18] Speaker 02:
Instead, he was requesting certain remedies in light of the discrimination that had occurred against him.

[00:06:26] Speaker 02:
What do you say to that distinction?

[00:06:32] Speaker 05:
To that distinction, I would just, if I'm understanding your question correctly, it's that the Rehabilitation Act requires the agency to make reasonable accommodations for individuals.

[00:06:43] Speaker 05:
And when Mr. Mortar was asking to be relieved of the discrimination against him, part of that was to be given a reasonable accommodation by the agency.

[00:06:53] Speaker 06:
Moving to the disparate treatment.

[00:06:54] Speaker 06:
If you'd been the victim of discriminatory treatment, would the remedy ordinarily be you get a job somewhere else?

[00:07:04] Speaker 06:
I wouldn't think discriminatory treatment, you would get your own job back.

[00:07:07] Speaker 06:
Whereas he said, yes, you're giving me a job and another job in the area.

[00:07:12] Speaker 05:
Yes, your honor.

[00:07:12] Speaker 05:
And the record is clear that Mr. Mortar could still do his job.

[00:07:15] Speaker 05:
He was very good at his job.

[00:07:17] Speaker 05:
he was simply unable to successfully complete polygraph examinations.

[00:07:23] Speaker 06:
And moving to the disparate treatment.

[00:07:24] Speaker 06:
So I guess I don't mean to interrupt you on this, but as we get into disparate treatment, I'm trying to understand the disability here.

[00:07:29] Speaker 06:
So it sounds like from what you just said, and I think this is consistent with the record, that his, I think someone said it was a situational anxiety, that his anxiety, I mean, he was doing just fine until this whole polygraph process started.

[00:07:43] Speaker 06:
Is that accurate?

[00:07:44] Speaker 05:
Yes, that's accurate.

[00:07:45] Speaker 06:
He didn't claim to have any sort of

[00:07:48] Speaker 06:
disabling anxiety disorder before that?

[00:07:54] Speaker 06:
Was it polygraph processing that sort of set this all off?

[00:07:57] Speaker 06:
Is that right?

[00:07:58] Speaker 05:
The evidence seems to suggest that, yes, your honor.

[00:08:01] Speaker 06:
OK.

[00:08:01] Speaker 06:
So if his disability is sort of a situational anxiety that pertains to having to take polygraph examinations and then all the sort of ensuing hubbub that comes around that and failing, or not failing, that would have an inconclusive ones.

[00:08:17] Speaker 06:
I get this hasn't been argued so it's fine.

[00:08:21] Speaker 06:
You can just say it wasn't argued.

[00:08:22] Speaker 06:
I'm just curious as to why this is a qualifying disability because I don't know what major life activity it affects.

[00:08:29] Speaker 06:
Is taking a polygraph exam a major life activity?

[00:08:33] Speaker 05:
The major life activity I believe would be

[00:08:38] Speaker 05:
working, being able to work.

[00:08:39] Speaker 06:
And he can work.

[00:08:41] Speaker 06:
He just can't take a polygraph exam.

[00:08:43] Speaker 06:
That's the whole point, is he can do his job just fine.

[00:08:46] Speaker 06:
He doesn't need any accommodations for doing his job.

[00:08:49] Speaker 06:
He just wants an accommodation for not taking a polygraph exam.

[00:08:53] Speaker 06:
Normally, you know, the relevant disabilities that affect major life activities mean I have a wheelchair, I need a door with a wider office for my work every day.

[00:09:03] Speaker 06:
And I'm just curious, and again, it hasn't been raised, so you can just say it's not raised, and so the government didn't raise it, so they forfeited it.

[00:09:10] Speaker 06:
I was just curious as to how this was affecting a major life, why taking a polygraph is a major life activity.

[00:09:17] Speaker 05:
I think my answer would be the government has not raised this argument, and so I do not have an answer for you.

[00:09:22] Speaker 05:
Fair enough.

[00:09:23] Speaker 05:
I see my time has expired.

[00:09:24] Speaker 05:
May I continue?

[00:09:25] Speaker 06:
Yes.

[00:09:25] Speaker 06:
Yes, you wanted to talk about disparate treatment, and I interrupted you.

[00:09:27] Speaker 05:
Yes, the disparate treatment argument.

[00:09:29] Speaker 05:
A reasonable jury could infer from the totality of the evidence that Mr. Mortar was discriminated against on the basis of his disability.

[00:09:36] Speaker 05:
I think here a reasonable jury could find particularly compelling the causal nexus.

[00:09:43] Speaker 06:
When did he first inform the agency of his anxiety disorder?

[00:09:48] Speaker 05:
The formal disclosure of the situational anxiety disorder occurred in November of 2013 when he met with Dr. Sufow.

[00:09:59] Speaker 05:
There he was

[00:10:02] Speaker 05:
directed to meet with an agency psychologist to determine why he was unable to complete the polygraph examinations.

[00:10:09] Speaker 06:
He didn't find a qualifying disability.

[00:10:13] Speaker 06:
He found that, in fact, ordinary polygraph processes, Dr. Suthu at least didn't find diagnosing with situational anxiety disorder.

[00:10:26] Speaker 05:
Dr. Southo did recognize Dr. McGee's previous anxiety diagnosis, but ultimately determined that the symptoms of Mr. Mortar's situational anxiety was, quote, probably easily attenuated by.

[00:10:39] Speaker 06:
Right.

[00:10:40] Speaker 06:
So the first time that Mr. Mortar informed the agency of a diagnosis, because Dr. Southo was not signing off on that, was when?

[00:10:54] Speaker 06:
Did he submit the McGee diagnosis in October 2013 to the agency?

[00:11:02] Speaker 05:
In November 2013, during this meeting with Dr. Suhto, he provided documentation.

[00:11:08] Speaker 05:
And again, Dr. Suhto was an agency psychologist, so this information, previous diagnoses, were sent on to other officials at DIA.

[00:11:18] Speaker 06:
Do we know when they were sent on to other officials at DIA?

[00:11:20] Speaker 05:
When they were sent on?

[00:11:23] Speaker 05:
report was signed as December 4th, I believe it was early December that Dr. Southo's report is dated as and I do believe that

[00:11:39] Speaker 05:
because the agency had directed.

[00:11:41] Speaker 06:
But did that report that went to the agency say he has an anxiety disorder that's a qualifying disability relevant to taking polygraph exams?

[00:11:52] Speaker 06:
Did that Dr. Souther report say that?

[00:11:55] Speaker 06:
We call it saying that.

[00:11:56] Speaker 05:
Dr. Southo's report did not say it.

[00:11:58] Speaker 06:
So when's the first time the agency was given a diagnosis, the McGee thing's like a line.

[00:12:07] Speaker 06:
It's not much to it.

[00:12:09] Speaker 06:
A diagnosis that said he has a qualifying disability of anxiety disorder that affects his ability to take polygraph exams.

[00:12:19] Speaker 05:
This would be in August of 2014.

[00:12:23] Speaker 05:
This was from Dr. Tuseo's report.

[00:12:26] Speaker 05:
Mr. Porter was taken to a fifth polygraph examination in August and was unable to complete that.

[00:12:32] Speaker 05:
However, following this examination, he was emotionally distraught, so distraught that DIA required him to immediately go to a psychologist.

[00:12:41] Speaker 05:
They accompanied him to this appointment with Dr. Tuseo.

[00:12:45] Speaker 05:
where the doctor observed that Mr. Mortar was hyperventilating, shaking, tearful, at times on the verge of a panic attack.

[00:12:52] Speaker 05:
And it's just two weeks after DIA observes these severe physical manifestations of Mr. Mortar's now anxiety and PTSD that Mr. Norton reassigns Mr. Mortar to end up.

[00:13:04] Speaker 06:
But they first proposed that reassignment

[00:13:07] Speaker 06:
in February 2014 before they'd been notified of a qualifying disability.

[00:13:14] Speaker 06:
That's when they made the initial recommendation to reassign.

[00:13:16] Speaker 06:
So when the initial decision to reassign is made before they have any knowledge of a qualifying disability, how could a reasonable jury conclude that the decision to reassign was based on his qualifying disability?

[00:13:35] Speaker 05:
Well, Your Honor, a reasonable jury could

[00:13:37] Speaker 05:
interpret the evidence differently and take the disclosure that occurred in November as DIA having knowledge of Mr. Mortar's disability.

[00:13:47] Speaker 05:
That would make the initial reassignment recommendation by the panel in February to have been made with notice of Mr. Mortar's disability.

[00:13:57] Speaker 06:
So he hadn't submitted anything to the agency, and Dr. Suthu said not an issue.

[00:14:04] Speaker 06:
But we have to find in that notice that was enough to make them

[00:14:08] Speaker 06:
engaged in contextual decision making even back in February 2014 before they had an official diagnosis from him.

[00:14:19] Speaker 06:
It's a little hard to rely on Dr. Sutho because he just did not make that diagnosis.

[00:14:24] Speaker 05:
That's correct but Dr. McGee did make that diagnosis and again Mr. Mortar provided Dr. McGee's diagnosis and documentation to Dr. Sutho in the agency.

[00:14:37] Speaker 05:
From this evidence, a reasonable jury could find that DIA knew Mr. Mortar had a situational anxiety disorder.

[00:14:45] Speaker 05:
A reasonable jury could also infer pretext from the fact that Mr. Norton did not actually think Mr. Mortar posed a threat to national security.

[00:14:53] Speaker 05:
It's clear from the record that at no time did Mr. Mortar have the security clearance revoked.

[00:14:59] Speaker 05:
It was revoked.

[00:15:00] Speaker 05:
It was just reinstated.

[00:15:02] Speaker 05:
I don't think so, Your Honor.

[00:15:04] Speaker 05:
I think Mr. Mortar retained his security clearance at all times.

[00:15:07] Speaker 05:
For example, in January of 2014, Karen McCord, the chief of the central adjudication facility, made a favorable SCI determination clearance.

[00:15:20] Speaker 05:
And it's our understanding that you cannot have an SCI designation without also having a top secret security clearance.

[00:15:27] Speaker 05:
The government is also

[00:15:30] Speaker 05:
agreed with us and the district court below that Mr. Mortar did not have his security clearance revoked.

[00:15:37] Speaker 05:
And this is at JA 346 where the government says it is not in dispute that plaintiff did not have his security clearance revoked.

[00:15:44] Speaker 00:
Not revoked, but maybe not revoked, but they continue to press the issue.

[00:15:50] Speaker 00:
They continue to, they're concerned that he can't pass a polygraph and make him take it again and again until he does.

[00:16:00] Speaker 00:
And when he can't, they say, you know, there's some degree of risk here.

[00:16:07] Speaker 00:
We're not going to go all the way to pulling a clearance, but we're not going to impose this risk on a different agency.

[00:16:18] Speaker 00:
What's wrong with that?

[00:16:19] Speaker 05:
Your Honor, a reasonable jury could find that DIA was not actually concerned that Mr. Mortar was unable to pass the polygraph examinations.

[00:16:27] Speaker 05:
Again, although they required him to take more polygraph examinations, they didn't contemplate a reassignment until after the situational anxiety was disclosed, and they didn't actually reassign him until after the anxiety and PTSD diagnoses were disclosed.

[00:16:42] Speaker 05:
And I would also point out that there are other

[00:16:46] Speaker 05:
employees at DIA, including Mr. Mortar's direct supervisor.

[00:16:49] Speaker 05:
Again, I mentioned Karen McCord and a senior adjudication officer who reaffirmed Mr. Mortar's judgment, reliability, trustworthiness, and this was also in light of the fact that he was unable to pass the polygraph examinations.

[00:17:04] Speaker 05:
It is important to recognize.

[00:17:05] Speaker 06:
So you had the agency he was working at, SOCOM, which is incredibly sensitive.

[00:17:14] Speaker 06:
information, incredibly important and secretive military information.

[00:17:20] Speaker 06:
And that client said, we can't have someone here who's a vulnerability.

[00:17:26] Speaker 06:
We have a zero margin of error at SOCOM.

[00:17:31] Speaker 06:
We can't have him.

[00:17:34] Speaker 06:
And so DIA had no ability to force him on SOCOM.

[00:17:40] Speaker 06:
And he's not arguing that SOCOM was discriminated against him because of his disability or disputing that an agency of that level of sensitivity has to have sort of a zero tolerance rule.

[00:17:54] Speaker 06:
So he was going to have to be reassigned.

[00:17:58] Speaker 06:
That's just sort of undisputed on the record.

[00:17:59] Speaker 06:
He could not continue to work at SOCOM.

[00:18:03] Speaker 06:
Given that, and given that he doesn't dispute that he could still work at SOCOM when the client agency refused to have him on board, what is the discrimination in reassigning him?

[00:18:13] Speaker 06:
Is it the particular reassignment to DC?

[00:18:15] Speaker 05:
Your Honor, DIA, who I agree was the ultimate decision maker here,

[00:18:25] Speaker 05:
did have another option, which was to follow its own policy and exempt or postpone Mr. Mortar from taking the polygraph examinations until he was emotionally, physically.

[00:18:34] Speaker 06:
Fine, but he couldn't go back to SOCOM in that time period.

[00:18:39] Speaker 06:
It just doesn't seem to be any, I didn't, and if I misunderstood, please let me know, I didn't understand there to be any argument that he had a right when there is this vulnerability, at least this potential risk, to continue his job at SOCOM.

[00:18:53] Speaker 06:
And so he was going to have to be reassigned somewhere.

[00:18:58] Speaker 06:
Is there any dispute about that?

[00:19:01] Speaker 05:
I think there is a dispute about that.

[00:19:03] Speaker 05:
Mr. Mortar did not need to be reassigned because.

[00:19:08] Speaker 06:
So his argument is I should have been allowed to continue working at SOCOM.

[00:19:13] Speaker 05:
In the SOCOM facilities in Florida.

[00:19:16] Speaker 05:
That's correct.

[00:19:17] Speaker 06:
But SOCOM had said, and DIA says, we can't force an employee, he's a civilian employee, we can't force that on a military unit that will not take somebody.

[00:19:29] Speaker 06:
And it's hard to think of anything more sensible than SOCOM not taking on someone who has any risk at all.

[00:19:39] Speaker 06:
The costs are way too high to the military and national security.

[00:19:43] Speaker 06:
So if he couldn't go back to that job,

[00:19:47] Speaker 06:
If I misunderstood it, is he arguing that SOCOM discriminated against him because of his disability or DIA?

[00:19:56] Speaker 05:
Our claim is that DIA discriminated against Mr. Morton.

[00:19:59] Speaker 06:
What was DIA supposed to do?

[00:20:01] Speaker 06:
They couldn't send him to SOCOM, so they had to give him another job.

[00:20:05] Speaker 06:
Is that correct?

[00:20:08] Speaker 05:
At the point in time where we are making

[00:20:11] Speaker 05:
this decision that's correct but I think it's important to back up a little bit and consider the fact that Mr. Mortar asked for a reasonable accommodation, a reasonable accommodation that would give no one in DOD reason to believe that Mr. Mortar posed a threat or risk

[00:20:26] Speaker 05:
concern to national security.

[00:20:29] Speaker 06:
Wait, it's a reasonable accommodation to ask people to think a different way about him?

[00:20:33] Speaker 05:
No, Your Honor.

[00:20:33] Speaker 05:
The reasonable accommodation was to exempt Mr. Mortar from taking the polygraph examinations.

[00:20:39] Speaker 06:
Mr. Mortar was not- Okay, but then he can't do jobs for which polygraph examinations are required.

[00:20:44] Speaker 05:
They, again, DOD recognizes- It's definitely a reassignment to a new job.

[00:20:49] Speaker 05:
DOD recognizes that there are individuals who will not be able to take polygraph examinations because they are medically, psychologically, or emotionally unfit.

[00:20:58] Speaker 05:
And this is from policy DOD instruction to age.

[00:21:03] Speaker 05:
Mr. Mortar was one of those individuals.

[00:21:05] Speaker 05:
Had he not been subject to the consequences of an inability to complete the polygraph examination, there is no evidence in the record to suggest that Mr. Mortar posed

[00:21:14] Speaker 05:
a risk to national security.

[00:21:16] Speaker 05:
And again, this is particularly important to emphasize.

[00:21:19] Speaker 06:
They weren't going to affirmatively find he was a risk, but he was definitely a vulnerability.

[00:21:24] Speaker 06:
I don't think Mr. Mortar, a reasonable jury, could find... Well, that's what they found, that he was a vulnerability.

[00:21:28] Speaker 06:
A reasonable jury couldn't find that someone who... I couldn't even keep track of how many polygraphs he did, a half dozen or more, and was unable to get a positive result on any of them.

[00:21:43] Speaker 06:
and had been violating rules by doing research on how to game the polygraph test.

[00:21:51] Speaker 05:
There were a total of five polygraph examinations.

[00:21:54] Speaker 05:
None of these polygraph examinations measured Mr. Mortar's risk.

[00:21:58] Speaker 05:
They measured his anxiety.

[00:22:00] Speaker 05:
And the researching into polygraph examinations, as the record demonstrates, is a symptom of Mr. Mortar's anxiety.

[00:22:07] Speaker 05:
He was an overly self-conscious person.

[00:22:09] Speaker 05:
And this research, the disclosures, the memos, were all out of concern that he was not being truthful to DIA, which he very much wanted to be.

[00:22:18] Speaker 05:
A reasonable jury could find, in light of all the evidence, that Mr. Mortar was discriminated against on the basis of a disability.

[00:22:28] Speaker 06:
And what exactly is the reasonable accommodation he wants?

[00:22:32] Speaker 06:
Not to take a polygraph exam, but what about

[00:22:36] Speaker 06:
his job.

[00:22:38] Speaker 06:
I mean, not taking a polygraph exam doesn't help because he can't work at SOCOM.

[00:22:42] Speaker 06:
And so, what job accommodation did he want?

[00:22:48] Speaker 06:
Stop taking polygraphs and let me work where?

[00:22:54] Speaker 05:
To remain in his position.

[00:22:56] Speaker 06:
At SOCOM.

[00:22:57] Speaker 05:
At SOCOM, correct.

[00:22:58] Speaker 06:
If he did not have to take... Is it a reasonable accommodation?

[00:23:03] Speaker 06:
to say I want to continue working as someone who refuses her national security reasons to let me work there.

[00:23:09] Speaker 06:
Is that a reasonable accommodation?

[00:23:11] Speaker 05:
It is when the national security justification was pretextual.

[00:23:16] Speaker 06:
You think so comes decision.

[00:23:19] Speaker 06:
which is not involved in all of this stuff, was pretextual.

[00:23:23] Speaker 06:
I had thought the whole case was about DIA, and it's all these DIA officials.

[00:23:27] Speaker 06:
We don't have military generals here from SOCOM explaining their decision making.

[00:23:32] Speaker 06:
This isn't a record about SOCOM's decision making.

[00:23:34] Speaker 06:
It's about DIAs, which is placing people in SOCOM and presumably other locations.

[00:23:41] Speaker 06:
And they said SOCOM refuses to take him until he can pass a polygraph.

[00:23:46] Speaker 06:
And we can't, policy matter, we can't force SOCOM to take somebody who hasn't passed a polygraph.

[00:23:54] Speaker 06:
So it just feels to me like his accommodation had to be another job.

[00:23:59] Speaker 06:
Right?

[00:24:02] Speaker 05:
If there is a dispute about the reasonableness of an accommodation, that is a question on the merits of the reasonable accommodation claim.

[00:24:09] Speaker 05:
And as this court has recognized last year in Olivia Reagan, the reasonableness of an accommodation is typically a question for a jury to resolve.

[00:24:18] Speaker 06:
Does he have to propose something that would be reasonable that's available or no?

[00:24:23] Speaker 05:
No, he does not have to make the proposal that's reasonable.

[00:24:27] Speaker 05:
The obligation is to provide the accommodation.

[00:24:33] Speaker 05:
And again, I think this is a matter for factual dispute

[00:24:37] Speaker 05:
that a jury should be given the opportunity to resolve.

[00:24:42] Speaker 02:
Thank you.

[00:24:42] Speaker 02:
Can I ask about, do you happen to have the district court opinion?

[00:24:47] Speaker 02:
It's JA 400.

[00:24:48] Speaker 02:
Yes.

[00:24:50] Speaker 02:
At least that's page 10 of it, which is what my question's about.

[00:24:57] Speaker 02:
OK.

[00:24:58] Speaker 02:
The second half of that page.

[00:25:01] Speaker 06:
Sorry, which page are you on, Tim?

[00:25:02] Speaker 02:
It's page 10 of the opinion, and I think it's 400 of the JA.

[00:25:06] Speaker 02:
Yes.

[00:25:07] Speaker 02:
Here, an explicit charge of failure to accommodate is absent from orders EEO complaint, as is any factual allegation that could be construed as a request for accommodation.

[00:25:16] Speaker 02:
I know you disagree with that.

[00:25:16] Speaker 02:
We talked about that already a little bit.

[00:25:19] Speaker 02:
Further, the notice of partial acceptance, which details the charges that the DIA chose to investigate, shows that the agency understood Mortar's complaint to allege solely discrimination on the basis of mental disability, anxiety order arising from three incidents, and then it lists the three incidents.

[00:25:36] Speaker 02:
My question is about the next two sentences, and especially the last sentence coming up.

[00:25:40] Speaker 02:
There is no evidence in the record that plaintiff ever objected to this narrow characterization of his claims.

[00:25:46] Speaker 02:
nor does he allege in his opposition that he did.

[00:25:49] Speaker 02:
And I wondered if there's anything in his district court opposition that you could point to where he objects to this narrow characterization of his claims.

[00:26:05] Speaker 05:
Mr. Mortar does not object to the narrow characterization of these claims, and that's because his reasonable accommodation claim is itself incorporated

[00:26:15] Speaker 05:
into these characterizations by the notice of partial acceptance.

[00:26:20] Speaker 05:
So the factual allegations that Mr. Mortar alleges was summarily the continued reliance on polygraph examinations despite knowing that it conflicted with this disability and the reassignment that occurred from this.

[00:26:34] Speaker 05:
This is, and just to remind the court that Mr. Mortar was proceeding pro se as he filed these and his complaints are to be construed liberally.

[00:26:44] Speaker 02:
I'm not blaming you.

[00:26:46] Speaker 05:
Yes.

[00:26:47] Speaker 05:
He was not required to object to the characterization because even that characterization includes his claims.

[00:26:58] Speaker 05:
If there are no further questions.

[00:27:02] Speaker 06:
Thank you very much.

[00:27:03] Speaker 06:
We used up all your time, but we'll give you a couple minutes.

[00:27:30] Speaker 03:
Good morning, Your Honors, Assistant U.S.

[00:27:31] Speaker 03:
Attorney Stephen D. Gennaro on behalf of the government.

[00:27:35] Speaker 03:
Your Honors, the heart of this case is that Mr. Mortar repeatedly failed the exact same portions of his counter scope intelligence polygraph examination and admitted to conducting research into those polygraph examinations after initially denying conducting that research.

[00:27:49] Speaker 03:
This caused leadership within his duty station at Special Operations Command to lose trust in him and they restricted his access to their classified systems and workstations.

[00:28:00] Speaker 03:
In response, DIA realigned Mr. Morder to a position in DIA's headquarters, as DIA had done with other employees who did not have disabilities.

[00:28:09] Speaker 03:
When Mr. Morder initiated EEO proceedings, he complained that his reassignment was discriminatory because of his disability.

[00:28:17] Speaker 03:
He did not include in his formal complaints that he had requested an accommodation from DIA, nor did he indicate that the agency had denied any such request.

[00:28:26] Speaker 03:
For those reasons, I will respectfully submit that the decision below should be affirmed.

[00:28:32] Speaker 06:
Now, I want to first start with... You'll have never disputed that this affects polygraph anxiety disorder, situational anxiety disorder affects a major life activity.

[00:28:44] Speaker 06:
So you accept that he's...

[00:28:46] Speaker 06:
Qualified a qual otherwise qualified individual with the disability your honor.

[00:28:50] Speaker 03:
We pressed several arguments below about the merits We're solely up here on the basis of the failure to exhaust portion can always argue alternative grounds for affirmance But did you argue below that it was not a qualifying disability because it didn't a relevant disability because your honor we did our major life activity and

[00:29:06] Speaker 03:
Your Honor, we did argue that he was not an otherwise qualified individual below.

[00:29:10] Speaker 03:
We also did argue below that there was no request for an accommodation that was made here, so there are additional grounds.

[00:29:16] Speaker 06:
We didn't raise a major life activity question below.

[00:29:18] Speaker 03:
I do not believe that the government did, Your Honor.

[00:29:20] Speaker 06:
Okay, so that was forfeited.

[00:29:21] Speaker ?:
Okay.

[00:29:22] Speaker 03:
I want to first start with two points with respect to the request for accommodation.

[00:29:26] Speaker 03:
Judge Walker, you had asked for my friend's best sentence within the formal complaint for the EEO Council report that would support an idea that there was a request for an accommodation.

[00:29:36] Speaker 03:
We depart from amicus for Mr. Mortar and don't believe that that sentence is sufficient to put the agency on notice.

[00:29:43] Speaker 03:
that it needs to conduct an investigation into a reasonable accommodation claim.

[00:29:47] Speaker 03:
There is no statement that Mr. Mortar had requested an accommodation of somebody from the DIA.

[00:29:53] Speaker 03:
There's no statement that would indicate that he had described what that accommodation is, nor is there any factual statement that suggests .

[00:30:01] Speaker 03:
.

[00:30:01] Speaker 03:
.

[00:30:01] Speaker 06:
Why isn't suspend the pending reassignment until the polygraph issue is resolved?

[00:30:06] Speaker 06:
Is that not a request for an accommodation?

[00:30:09] Speaker 03:
I just want that the statement as to remedies that can also be read as requesting retroactive read statement, which is of course a remedy that can be awarded until the polygraph issue is resolved.

[00:30:20] Speaker 06:
You need to work something out here.

[00:30:23] Speaker 06:
That's not an accommodation.

[00:30:24] Speaker 03:
That's not a request for accommodation as we read it.

[00:30:27] Speaker 06:
And how do you read it?

[00:30:29] Speaker 06:
I read that and suspended forever.

[00:30:31] Speaker 06:
Never make me do another one again.

[00:30:36] Speaker 03:
Again, your honor, I read that as a request for a remedy.

[00:30:40] Speaker 06:
Well, that's what reasonable accommodation is.

[00:30:42] Speaker 06:
It's a remedy.

[00:30:43] Speaker 06:
You have to show that you qualify for your disability.

[00:30:46] Speaker 06:
And what I want is this accommodation.

[00:30:48] Speaker 06:
And then when it's denied, people argue that if they think it was improperly denied, then it's a form of discrimination known as failure to provide a reasonable accommodation.

[00:30:58] Speaker 06:
But your argument was he didn't ask for a reasonable accommodation.

[00:31:02] Speaker 06:
And I'm pointing you to number two and telling me how a temporary suspension until an issue is resolved is anything other

[00:31:12] Speaker 06:
than a request for an accommodation.

[00:31:14] Speaker 03:
Your Honor, our position is that that is a remedy that is equally applicable to disparate treatment claims.

[00:31:18] Speaker 06:
Equally to both means it raises both.

[00:31:23] Speaker 06:
You have to show that that, which I can't, my eyes can't read it that way.

[00:31:27] Speaker 06:
You would have to show this is for a pro se, clearly requesting only relief for disparate treatment.

[00:31:38] Speaker 06:
and not an accommodation while we work out how to deal with this disability.

[00:31:43] Speaker 03:
Your Honor, counsel for, or amicus counsel for Mr. Morner had pointed, or referenced the case Ali versus Regan.

[00:31:50] Speaker 03:
That individual employee in that case was also pro se, and was able to sufficiently put the good agency.

[00:31:55] Speaker 06:
That's not our test.

[00:31:56] Speaker 06:
We don't say, well, if one pro se somewhere was able to do something, we will read everything that every other pro se does in the strictest light possible.

[00:32:05] Speaker 06:
This is a temporary request here.

[00:32:07] Speaker 06:
This is not permanent.

[00:32:09] Speaker 06:
This is suspend something until a polygraph issue is resolved.

[00:32:13] Speaker 06:
That's not permanent relief, which is what you get for disparate treatment.

[00:32:19] Speaker 06:
That's work with me.

[00:32:21] Speaker 06:
That's the essence of a reasonable accommodation.

[00:32:24] Speaker 06:
I don't understand how you could read it as anything otherwise.

[00:32:27] Speaker 03:
Well, Your Honor, again, the request for an accommodation needs to be made.

[00:32:32] Speaker 03:
And the test from this district is that.

[00:32:33] Speaker 06:
Okay, here we have it.

[00:32:35] Speaker 06:
And I'm not making this up.

[00:32:38] Speaker 06:
The administrative judge

[00:32:40] Speaker 06:
addressed as just a reasonable accommodation claim, addressed the reasonable accommodation claim.

[00:32:47] Speaker 06:
It went up to the EEOC, and they didn't say there's no reasonable accommodation claim here.

[00:32:51] Speaker 06:
They said, yeah, there is, but you know what?

[00:32:53] Speaker 06:
There's also a disparate treatment claim, so go back and also address disparate treatment.

[00:32:59] Speaker 06:
Now, if you take that sentence, you take what the administrative judge did, what the EEOC did and said, and sent them back to do.

[00:33:06] Speaker 06:
Tell me how you put all that together to say,

[00:33:09] Speaker 06:
Nobody was on notice that he was asking for a reasonable accommodation.

[00:33:14] Speaker 03:
Again, your honor, I think the fact that the details in the formal complaint aside from the remedy language that you point to in the EEOC council report focus solely on the fact that Mr. Mortar is saying that he's being subjected to differential treatments because of his disability.

[00:33:30] Speaker 03:
With respect to the administrative judge- I'm sorry, I don't understand that again.

[00:33:35] Speaker 06:
What are you saying?

[00:33:36] Speaker 03:
that when you look at the EEOC council report that Mr. Mortar attached to the report.

[00:33:40] Speaker 06:
Yes, that's what I'm reading from.

[00:33:42] Speaker 03:
Yes, but what is absent from that EEOC council report are any indications that witnesses were asked, what do you know about the request that Mr. Mortar has made?

[00:33:52] Speaker 03:
Who responded to that request for an accommodation?

[00:33:54] Speaker 03:
Why was it denied?

[00:33:55] Speaker 03:
Those are factual details that would be present.

[00:33:58] Speaker 06:
Sorry, so who was supposed to ask those things?

[00:34:00] Speaker 03:
The EEOC council report would be investigating that claim had they believed that Mr. Mortar's formal complaint had put the agency on sufficient notice of the existence of that claim.

[00:34:11] Speaker 06:
Again, while there's not- Maybe that's a failure on his part, but that doesn't mean it's a failure on Mr. Mortar's part.

[00:34:18] Speaker 06:
If there's a problem with the EEOC counselor's work, that doesn't mean that he didn't do it because the administrative judge and the EEOC, again, the administrative judge thought it was just reasonable accommodation.

[00:34:29] Speaker 06:
You can't make any case, even with a represented party, but certainly with a pro se, where it's raised there in words to me that sound entirely accommodative

[00:34:42] Speaker 06:
and the administrative judge does a whole decision on reasonable accommodation.

[00:34:47] Speaker 06:
And it goes up to the EOC and they say, okay, we get, they don't say, what are you talking about reasonable accommodation?

[00:34:54] Speaker 06:
They say, yeah, but you forgot disparate treatment.

[00:34:59] Speaker 03:
Your Honor, first point as to the administrative judge.

[00:35:02] Speaker 06:
Any case that has said that's insufficient for a pro se.

[00:35:05] Speaker 03:
I do not believe that there has been any decision that has weighed in one way or the other.

[00:35:09] Speaker 06:
Have you got any case where the agency, two levels of agency, addressed a reasonable accommodation claim, and yet a court has held that a pro se did not raise a reasonable accommodation claim.

[00:35:23] Speaker 06:
And there is language right there in their formal informal complaint that seeks accommodation.

[00:35:29] Speaker 03:
Your Honor, I am not aware of any decision that addresses one way or the other.

[00:35:31] Speaker 06:
So we'd be making new law for pro se's here.

[00:35:34] Speaker 06:
You can't find any case where we've read a pro se application with this level of astringency and closed our eyes to how the experts on the ground, the administrative judge and the EEOC viewed it.

[00:35:50] Speaker 03:
Your Honor, I don't believe a new test needs to be written in this case.

[00:35:52] Speaker 06:
It'll be the first time.

[00:35:53] Speaker 06:
I'm not aware of any case either where the language is right there.

[00:36:00] Speaker 06:
It's not remedial damages for disparate treatment.

[00:36:04] Speaker 06:
It's not completely put me back where I am.

[00:36:07] Speaker 06:
It's put me in a different, either suspend this thing or in its formal complaint, give me a job somewhere in the local community area.

[00:36:14] Speaker 06:
Right?

[00:36:14] Speaker 06:
Those are accommodations and nothing else.

[00:36:19] Speaker 06:
And it's fully addressed by the agency process at two levels, two times.

[00:36:25] Speaker 03:
Well, two things.

[00:36:26] Speaker 03:
First, Your Honor, while acknowledging the fact that the court has the discretion to consider arguments that were raised for the first time on the appeal, our position is that the arguments about the administrative judge and the EEOC decision are forfeited because Mr. Moore did not press that below.

[00:36:41] Speaker 06:
Wait, wait, wait, wait.

[00:36:42] Speaker 06:
Did he argue below that he had exhausted his claim?

[00:36:45] Speaker 03:
He argued below that he had raised that claim in documents like the Notice of Appeal.

[00:36:51] Speaker 06:
We have pretty clear precedent that says a new argument in support of a claim that was preserved below is not a waiver issue.

[00:37:00] Speaker 06:
It's entirely permissible.

[00:37:02] Speaker 06:
Appellate lawyers do it all the time, come up with new and better arguments.

[00:37:06] Speaker 06:
for claims raised below.

[00:37:07] Speaker 06:
He argued, it's in his complaint, and he argued to the district court, I made this claim and it was exhausted.

[00:37:13] Speaker 06:
He was a pro se, he didn't know that he was supposed to cite a couple pages in the record to point the district court to.

[00:37:20] Speaker 06:
But it was in his complaint, he made the argument.

[00:37:23] Speaker 06:
So he's not making a new argument here, he's pointing to additional pages in the record.

[00:37:29] Speaker 06:
Does the government want to live by that standard for its arguments on appeal?

[00:37:32] Speaker 03:
Your honor, I would not want to get ahead of the Solicitor General at that point.

[00:37:35] Speaker 06:
No, the government, I'm sure the government does not.

[00:37:38] Speaker 06:
And so we aren't going to apply a different standard.

[00:37:40] Speaker 06:
You wouldn't ask us to apply a different standard of forfeiture to a pro se than we would to the United States government, would you?

[00:37:47] Speaker 06:
Again, so... Can we apply the same one, at least the same one?

[00:37:52] Speaker 03:
I think your honor is articulating a point about the fairness of a lot of reply that no, I'm asking about the legal standards.

[00:37:57] Speaker 06:
Should we apply at least the same legal standard for preservation of issues, but advancing some new arguments in support of them on appeal to proceeds that we do to the United States government and other represented parties?

[00:38:11] Speaker 03:
Again, your honor, I would not want to get ahead of this list.

[00:38:13] Speaker 06:
What you're going to you don't you can't answer that question.

[00:38:17] Speaker 03:
Your honor, I acknowledge that prosaic ligand shouldn't be held to a more stringent standard than representative parties to include the United States government.

[00:38:23] Speaker 06:
So our case is that say you can make new arguments in support of claims raised below.

[00:38:27] Speaker 06:
He gets the benefit of that too.

[00:38:30] Speaker 03:
Yes, your honor, but that ties in with our second point about whether this had been properly teed up for investigation, is the report investigation, which we included at the beginning of our supplemental appendix, shows that the focus of that investigation that followed from this formal complaint was solely of one of differential treatment and not of a reasonable accommodation.

[00:38:50] Speaker 06:
I read the- Is that a document he created?

[00:38:52] Speaker 03:
I'm sorry, your honor.

[00:38:53] Speaker 06:
Is that a document he created?

[00:38:54] Speaker 03:
No, Your Honor, it's the report of investigation that the agency had created when it followed, took the allegations that he put them sufficiently on notice about in his formal complaint, as many other federal sector employees who engage in the EEO process do without representing counsel.

[00:39:11] Speaker 03:
And they understood that claim to be one of disparate treatment and not one of reasonable accommodation.

[00:39:15] Speaker 06:
Is a failure to provide a reasonable accommodation as a matter of law a form of disparate treatment?

[00:39:23] Speaker 03:
Your honor, I believe we cited cases in our brief that discuss from other courts of appeals that discuss that those are different types of disability discrimination and treatment and both forms of disability discrimination.

[00:39:35] Speaker 06:
They're both forms of differential treatment because the whole point is I'm otherwise qualified and yet you're treating me differently than other

[00:39:44] Speaker 06:
other people who are also qualified for the job but don't have a disability.

[00:39:48] Speaker 06:
It's just like religious discrimination under Title VII, right, that it's still considered disparate treatment when you fail to make an accommodation that you reasonably can make.

[00:40:01] Speaker 03:
I would gently push back on the idea that those are co-extensive claims.

[00:40:05] Speaker 03:
In the case of a disparate treatment claim, there is discussion about whether the impermissible factor is being taken into account in the personnel action.

[00:40:15] Speaker 03:
In the context of a reasonable accommodation claim, the fact that the employee has a disability is being considered in the merits of those claims.

[00:40:22] Speaker 06:
Yeah, it's taken into account, and the question is whether we can accommodate it.

[00:40:25] Speaker 06:
They both take them into account.

[00:40:27] Speaker 06:
The question is whether we tried an accommodation or not.

[00:40:30] Speaker 03:
Well, the key factual dispute in disparate treatment claim is whether that impermissible factor was considered in the employment action versus in the accommodation you're litigating, whether the reasonableness of the accommodation that was being made to account for that disability.

[00:40:44] Speaker 06:
It's not whether it was considered.

[00:40:45] Speaker 06:
It's whether, in disparate treatment, is whether it was sort of the causal reason for the adverse action that resulted.

[00:40:55] Speaker 06:
It's considered.

[00:40:57] Speaker 06:
And both of them can't not be.

[00:41:01] Speaker 06:
So it's just a question of causal connection for disparate treatment or failure to accommodate.

[00:41:10] Speaker 06:
I don't see what the point is, what the difference is.

[00:41:13] Speaker 06:
To say that they looked at it this way, I mean they were aware, you all gave them a reasonable accommodation from your perspective by reassigning, you didn't fire them, you reassigned them to DC, you said this is the accommodation that we can do to address your vulnerability.

[00:41:31] Speaker 06:
Right?

[00:41:32] Speaker 06:
That was your accommodation.

[00:41:33] Speaker 06:
You didn't fire him.

[00:41:34] Speaker 06:
You didn't say we don't want you working here with your disability.

[00:41:37] Speaker 06:
You said the best way to deal with your vulnerability, the vulnerability that results from your inability to take polygraphs is we've got to reassign you to someplace.

[00:41:46] Speaker 06:
where that's not a vulnerability or can be mitigated by other means, correct?

[00:41:51] Speaker 06:
You're offering him an accommodation.

[00:41:53] Speaker 03:
I don't know that I would characterize the evidence as saying it was providing him an accommodation.

[00:41:57] Speaker 03:
I think what the evidence shows in this case, and you touched on this with your question on the disparate treatment claim with the other side,

[00:42:03] Speaker 03:
is that it's not in dispute that SOCOM no longer wanted him in their facility and DIA as his employer had to determine how they were going to respond to that.

[00:42:11] Speaker 03:
And the way they mitigated the risk associated with that persistent failure of the polygraph examination is that they said, we're going to bring you back to headquarters.

[00:42:18] Speaker 06:
We're keeping you on board and we're going to give you a job that lets you keep working with your disability but addresses the vulnerability concerns.

[00:42:33] Speaker 03:
Again, I think, Your Honor, that that is something that does not reflect that the agency was thinking of as a response to an accommodation, though.

[00:42:40] Speaker 03:
Because again, we don't believe that this was a request for an accommodation.

[00:42:43] Speaker 06:
Giving someone a different job that they can do consistent with their disability, the government doesn't believe that's a type of accommodation.

[00:42:52] Speaker 03:
No, Your Honor, we're saying that on this record, in this case, we don't believe that the evidence supports the... So on the record, in this case, giving someone a job didn't fire them.

[00:43:02] Speaker 06:
that is consistent with their disability, allows them to continue to work consistent with their disability.

[00:43:07] Speaker 06:
In this case, it wasn't an accommodation.

[00:43:10] Speaker 06:
But if you did it for someone else, it might be an accommodation.

[00:43:12] Speaker 06:
Is that what you just said?

[00:43:13] Speaker 06:
You said on this record?

[00:43:15] Speaker 03:
On this record, Your Honor, I believe that the evidence shows.

[00:43:17] Speaker 06:
How's it not an accommodation on this record?

[00:43:19] Speaker 06:
Because again, I don't believe, Your Honor, that the evidence supports the inference that there was a request to be accommodated, made of anybody within the IA, and- Maybe it was a really good agency that was proactive, didn't want to discriminate based on disability, wanted to keep this long-term employee on board with all his skills and experience if they could, but they had to find a position that was consistent with the anxiety disorder that prevented him from taking polygraphs.

[00:43:48] Speaker 06:
or at least taking them in a way that could operate successfully to evaluate the risk that he posed.

[00:43:53] Speaker 06:
And so the agency said, I think you would be trumpeting this.

[00:43:57] Speaker 06:
The agency said, this is the best we can do.

[00:44:01] Speaker 06:
This is what we can do for you.

[00:44:04] Speaker 03:
Your Honor, you had asked about the Dr. Southo report where he had indicated that we believe that the situational anxiety is probably something that could be attenuated by the procedures itself at the time that the recommendation is being made to reassign him to the headquarters.

[00:44:21] Speaker 03:
There isn't anything to suggest that the agency thought that the anxiety that he was experiencing

[00:44:26] Speaker 03:
again solely from passing or being unable to pass only portions of the examination because there are there's evidence in the record that Mr. Mortar was able to successfully complete three other lines of questioning in there.

[00:44:38] Speaker 03:
I don't believe that the inference here that just because the agency decided to mitigate his risk by bringing him back to headquarters necessarily fits within the paradigm that you're describing.

[00:44:48] Speaker 06:
No, you did lots of accommodating.

[00:44:50] Speaker 06:
You gave him

[00:44:51] Speaker 06:
But five different opportunities at exams, you spaced them out, you kept him working during all this time.

[00:44:57] Speaker 06:
And then when it just, the problem persisted and he was able to provide more documentation of his disability, I would have thought y'all would say we did exactly what we're supposed to do here.

[00:45:12] Speaker 03:
Again, I think your position, I think our position is that this case fits within park versus Howard University and in some cases, your position isn't that the agency did exactly what the law expects it to do in this context.

[00:45:25] Speaker 02:
That is your position.

[00:45:27] Speaker 02:
You're saying we did everything right.

[00:45:29] Speaker 02:
That's what you're saying.

[00:45:30] Speaker 03:
Yes, Judge Walker.

[00:45:32] Speaker 03:
Our position is that there's no discrimination here.

[00:45:33] Speaker 03:
I just wanted to push back on the notion that the way that the agency chose to mitigate the risk associated with the polygraph examination, I don't believe that that fits within

[00:45:45] Speaker 03:
as that word is used in the Rehabilitation Act.

[00:45:48] Speaker 03:
This is merely a decision by a national security apparatus to help mitigate a potential vulnerability.

[00:45:53] Speaker 06:
If he had affirmably asked, can you assign me somewhere, this is this polygraph, thank you for giving me five different tries here and lots of time and space between them.

[00:46:04] Speaker 06:
It's not working.

[00:46:06] Speaker 06:
Can you assign me somewhere where the risk issue is mitigated so that I can keep working?

[00:46:14] Speaker 06:
I've been here a long time.

[00:46:16] Speaker 06:
and we retire and I've got a lot of skills and benefits.

[00:46:19] Speaker 06:
Can you reassign me somewhere?

[00:46:20] Speaker 06:
Would you understand that as a request for an accommodation?

[00:46:25] Speaker 06:
If Mr. Mortar had indeed asked... If he had asked for that, would you consider it a request for accommodation?

[00:46:29] Speaker 06:
Yes.

[00:46:29] Speaker 03:
Yes, Your Honor.

[00:46:30] Speaker 06:
Can something be an accommodation if it's the agency's idea, even if the party didn't ask for it?

[00:46:37] Speaker 03:
Something may be an accommodation, a reasonable accommodation.

[00:46:39] Speaker 03:
All the time.

[00:46:39] Speaker 03:
Yes.

[00:46:40] Speaker 06:
All the time.

[00:46:41] Speaker 03:
Okay.

[00:46:41] Speaker 03:
Can I ask?

[00:46:43] Speaker 02:
Assume that we think

[00:46:46] Speaker 02:
Mr. Morder did exhaust his accommodation claim, not saying we do or we don't.

[00:46:57] Speaker 02:
Could we then reach the merits of the accommodation claim and say it's not meritorious?

[00:47:05] Speaker 03:
Yes, Your Honor.

[00:47:06] Speaker 03:
This court has the discretion to affirm on any basis that's found in the record and Judge Millett suggested the qualified

[00:47:13] Speaker 03:
activity as one.

[00:47:14] Speaker 03:
We had also pressed below that there was no indication that he had actually requested an accommodation to be excused from these polygraph examinations.

[00:47:22] Speaker 03:
And finally, the fact that there's evidence in the record of support that Mr. Mortar was required to pass these polygraph examinations, SOCOM no longer wanted him in their facility.

[00:47:32] Speaker 03:
The only reasonable accommodation that could be offered was this reassignment to DIA headquarters where they can more effectively

[00:47:38] Speaker 03:
mitigate the risk associated with his polygraph examination.

[00:47:41] Speaker 03:
So yes, your honor, there are additional grounds to support affirmance on the combination claim if you were to decide that it had been in fact exhausted.

[00:47:49] Speaker 06:
Was there any evidence from him, from you that there wasn't anything in the area?

[00:47:56] Speaker 06:
I just don't know DIA's structure down in Florida.

[00:47:59] Speaker 06:
So the SOCOM's out.

[00:48:04] Speaker 06:
But there wasn't

[00:48:05] Speaker 06:
Did he ask for or identify or was the agency aware of anything that, I think his concern is he needed to stay in Florida.

[00:48:12] Speaker 06:
It's gonna be too hard to move.

[00:48:14] Speaker 06:
Is that an open record question or is it just there's sort of what DIA does down there is SOCOM and nothing else?

[00:48:20] Speaker 06:
I have no idea.

[00:48:21] Speaker 03:
So in addition to, so the place where Mr. Moore worked is an Air Force base where there is SOCOM spaces and US CENTCOM spaces.

[00:48:30] Speaker 03:
And one of the things that Mr. Norton did

[00:48:32] Speaker 03:
right before affirming the decision reassigning was to check with CENTCOM to see if whether they would be willing to monitor Mr. Mortar to make sure that he didn't present a security vulnerability.

[00:48:41] Speaker 03:
That would not necessitate that he move out of the Tampa area.

[00:48:45] Speaker 03:
And when they checked, CENTCOM said that they didn't want to bear that risk.

[00:48:49] Speaker 06:
I'm sorry, who asked that?

[00:48:50] Speaker 06:
He did or someone in the agency asked?

[00:48:52] Speaker 03:
Someone within DIA had requested.

[00:48:54] Speaker 06:
So they checked for an accommodation.

[00:48:57] Speaker 06:
Okay.

[00:48:58] Speaker 06:
And so the answer, that's, that's, those are the only sort of two options down there and both of them for obvious, I mean, obviously incredibly sensitive operations.

[00:49:09] Speaker 06:
So this isn't going to work for us.

[00:49:11] Speaker 06:
Is that what you're telling me?

[00:49:12] Speaker 03:
That's correct.

[00:49:13] Speaker 06:
Where is it in the record?

[00:49:16] Speaker 03:
There's reference to it on page.

[00:49:18] Speaker 03:
I believe it's J a three 33.

[00:49:20] Speaker 03:
Uh, yes, it's a J 30 33 where it's summarizing the steps.

[00:49:24] Speaker 03:
So it starts, it's a two-page email starting on 332 and going on to page 333.

[00:49:30] Speaker 06:
Sorry, which document is that?

[00:49:32] Speaker 06:
I'm trying to figure out.

[00:49:33] Speaker 03:
This is an email that Mr. Moore had received in response to a FOIA request.

[00:49:37] Speaker 06:
The final reassignment email, is that it?

[00:49:39] Speaker 03:
Yes.

[00:49:39] Speaker 06:
Okay, got it.

[00:49:41] Speaker 03:
Again, in there, that's where there's the discussion that they had received his notice to appeal.

[00:49:44] Speaker 03:
They conducted the fifth polygraph examination where again in that instance he successfully complete the sabotage espionage and terrorism portions and it got hung up on the classified info and the foreign contacts part for a fifth time they Conducted an interview to see if the interview was able to work through the issues that mr. Mortar had with the polygraph and then they also asked whether somebody in centcom would be able to host him for a position there and the answer was no

[00:50:10] Speaker 03:
I see that I've gone well over my time.

[00:50:14] Speaker 06:
That's my fault.

[00:50:16] Speaker 03:
So for the reasons that we've stated here and for in our brief, we respectfully request that this quarter from the judgment below.

[00:50:23] Speaker 06:
All right, Ms.

[00:50:24] Speaker 06:
Floyd, we will give you two minutes to rebuttal.

[00:50:35] Speaker 05:
I have two points on rebuttal, Your Honor, one with regard to the reasonable accommodation claim and one with the disparate treatment claim.

[00:50:42] Speaker 05:
As to the reasonableness of the accommodation, this court has held, and I'm quoting here from Olivia Reagan, that deciding the reasonableness of a given accommodation not uncommonly involves context-based decisions ill-suited for summary judgment.

[00:50:58] Speaker 05:
Here, it is in dispute whether Mr. Mortar's accommodation that was provided was a reasonable one.

[00:51:04] Speaker 05:
Again, the agency DOD instruction allows for the postponement and exemption of polygraph examination procedures, and that is what Mr. Mortar asked for.

[00:51:15] Speaker 06:
Well, so not uncommonly, it's not the same as never, and this was a summary judgment decision.

[00:51:22] Speaker 06:
So did he come forward at summary judgment with evidence that would create disputed question material fact about the existence

[00:51:33] Speaker 06:
of an available alternative position for him in Florida, a DIA, same DIA location in Florida.

[00:51:44] Speaker 06:
He did not come forward with a different location, but a different job.

[00:51:48] Speaker 06:
Did I identify something that he could do consistent with their need to address the vulnerability that he posed?

[00:52:01] Speaker 05:
The accommodation, again, this is likely not the answer that you're looking for, but the accommodation was to be deferred or exempted from the polygraph examination procedures, which would allow him to- And keep working in these sensitive places.

[00:52:13] Speaker 05:
Exactly.

[00:52:13] Speaker 06:
And I do recognize that- He didn't have another one.

[00:52:15] Speaker 06:
He wasn't aware of some other job there that he could- That's correct.

[00:52:18] Speaker 06:
I'm forgetting that was his formal or informal complaint.

[00:52:21] Speaker 06:
Says, or assign me to somewhere else in the metro area.

[00:52:26] Speaker 05:
No, he does not ask for that.

[00:52:29] Speaker 05:
My second point is that, as you mentioned, these are incredibly sensitive positions.

[00:52:35] Speaker 05:
And DIA knew this, and this was the case, for the two years that Mr. Mortar remained in his position despite still being unable to complete the polygraph examinations procedures.

[00:52:46] Speaker 05:
During that time, DOD followed his policy, which is that polygraph examinations are a supplement to, not a substitute for, other investigative procedures.

[00:52:56] Speaker 05:
It was not until the disclosure of his diagnosis that DIA decided reassignment was necessary.

[00:53:02] Speaker 05:
I have no further points.

[00:53:03] Speaker 05:
If you have any questions, Your Honors.

[00:53:06] Speaker 06:
OK.

[00:53:06] Speaker 06:
Ms.

[00:53:06] Speaker 06:
Floyd and Ms.

[00:53:07] Speaker 06:
Hashimoto, you were appointed by this court to represent Mr. Mortar in this appeal.

[00:53:12] Speaker 06:
And the court is very grateful for your assistance.

[00:53:16] Speaker 06:
The case is submitted.