make a rule fifty motion and it should have been granted because there was absolutely no evidence that the county had attempted to reasonably accommodate mrs klein during the five year period in question that attempt to bring her back to work in one thousand nine hundred eighty eight that was unsuccessful and it's i disputed that she did not or the county did not bring her back to work she did not return to work and two thousand and three late two thousand and three that's a five year period and the only reason that she ever returned to work based on the record in this case is because she retained a lawyer and that should not be at trial if the county was only able to provide any evidence that accommodation was explored reasonable accommodation was even explored evidence a trial there was evidence from ms klein herself there was evidence from the union representatives there was evidence from the people who had positions of people who were responsible for filling positions of available concept i just hadn't thought of it before it seems to me that the county had a duty to explore reasonable accommodation and it's admitted that they did not do that because they didn't think  there is they didn't do anything and it comports with the duty of reasonable accommodation in responding to your initial question i suppose that the county different deferential authority here they can say we will give you this accommodation or that accommodation they have the right to choose that to luddism take that all of their the rights away with it like this say if you attempted to find a job opportunities for your client she testified that she'd found a job opportunities notified her of available positions ok and isn't it correct on a couple of occasions your client turned down opportunities that housefull found she did not interview for jobs that she did she turned down opportunities that haskell found for her yes or not no does that mean that means after discussing the position this client she was interested i would intervene on her behalf the departments they would then have an honor because i think it's important for ms klein that she evaluate the working conditions in the supervisory background you know who's going to supervisor given the issues with mr kraft i thought that was important and then we would determine if it was a good match and when we would proceed to put her in that position i was what she's saying as i understand it is there are positions i could put her in there i want to interview for other reasons and you may just be she was not offered in one of in one of them after she interviewed for the position they asked for for more applicants they requested it so past the list saying there and i submit this is i found a position that i thought would be suitable i want her to interview for it if she had one of the position i would have advocated for which because as a matter of law they did not offer her an accommodation they did she did not turn down an actual offer of an accommodation during that whole period and she did she did bit they could have accommodated her but when and if you take the position if you take the position that she turned down a position which i don't think is supported by the evidence that doesn't and  sufficient evidence there to support a finding that ms haskell or the county complied with the law with respect to see reasonably accommodating was fine during that period lester's other questions i'll save time for above i'm sure you have about six minutes thank you for your argument and we'll hear from the county at this time think this is well briefed and in our brief the record is replete with evidence particularly from the task all that different attempts at accommodation that you talked about there were there were two positions that were explored early on and the quote that you gave during this tour mr rogers argument was the one that i would rely on most heavily but that did not constitute really a job offer i mean at the end of the day it was an act exploration of an offer right and i know where we are in this case that we have a record that basically it seems to me sh why you think that's enough to ok if you're on your it does it does raise an interesting question and this is kind of where the rubber meets the road and reasonable accommodation process is around our state but the problem is this you have an employer who has a limited number of positions that are open we have in our county right now more people requesting accommodations than there are even positions that are open and you have to try to find the right fit does the law require you to just slam somebody into a job because they've asked for accommodation i submit to you the answer is no you try to find the right fit that's what reasonable accommodation is about re stumble accommodation doesn't extended period of time trying to identify the best accommodation that could be afforded to mr klein now the problem is and i deal with this frankly on a daily basis maybe the county tries too hard to find instead of a reasonable accommodation the best accommodation and maybe we can be faulted for that but that doesn't mean that we haven't worked to develop a reasonable accommodation also during this period of time there's no dispute she was offered and utilized the vocational rehab system she actually went back to college and tried to better herself she was extended a leave of absence during which the county continued to pay her benefits including her health insurance for five years while she tried to sort things out i just that the record is so strong about the efforts  county made and the obstacles that miss klein put forth i won't leave the west i won't work in the west county i won't work in the east county i won't take a typing test i i won't do it take a job with a backer that requires a background check with the sheriff's department you know i don't want to work in the health services department there's the the largest department in the county she's putting up a kind of roadblock after road attorney and i was talking to judge henderson one time about the jury process and and the whole deliberative process that our system of justice in the united states were relies on and i felt at the time that the jury system was terrific for criminal matters than a jury of the peers and i thought it was a waste of time and efficient first of all matters and judge henderson said to me that he used to share my view with respect to matters but that he had learned after working on many many trials and talking to many many juries that the collective judgment of the members of the jury panel was not only better your argument is that we didn't give her a reasonable accommodation because it wasn't the best accommodation doesn't that fails a matter of law you know i'm not saying that i'm saying that we need to all commendation may occur without a job placement you can see that if if if you had denied her a reasonable accommodation because it wasn't the best accommodation that that would violence to absolutely and there's no evidence of that you know what all i'm saying is you know in hindsight and we haven't done this but i do think about it on a daily basis maybe we should just assign people and you know take it or leave it and see how it works but that's not the way the county does things they work very hard they go through these kind of mutual interest processes and sort of what i ask you if you're denying a reasonable accommodation because you don't think it's the best fit still denying a reasonable accommodation you know what i'm saying that that's not that's not a denial of a reasonable accommodation we don't always make the fit and then people get to move again i mean mr rogers talks about the continuing duty and that happens you know you don't always get the best fit but you try that's what reasonable is about reasonable it's not about just plonking somebody in a job she did get talked and with the help of her council she stopped putting up the roadblocks that she had been for years and she was in a job and i think reasonably happy but but there were roadblocks put up you know for years that didn't get dispensed with until council became involved in that i don't think that means there's been a lack of of reasonable accommodation brief also it's set forth in the testimony of others who said who testified that their jobs would not be appropriate for mr klein with her limited keyboarding abilities  i just don't see there's no evidence of germs conduct there's ample evidence to support the jury's conclusion and i don't see that there are any grounds that offer overturning their verdict i think that the court is correct that the court of appeal  position vsam be a jury and as long as there is substantial evidence to support the jury's finding the jury verdict stands and the judge the judge also evaluated that and he was there for the whole trial and his judgment was that he couldn't substitute his judgment for that of the jury evidence supported the verdict even even if the evidence of the typing certificate had been excluded and with that i'll submit to any questions i think that matters from pretty well briefed thank you for your do and things like that and then turning around and holding it against ms klein saying that she put up roadblocks it seems to me that if there is a position in this crime can do with or without reasonable accommodation they have their set forth in their cases the concept that a leave of absence is a reasonable accommodation is it a place in a case where a leave of absence is going to allow an employee to recover from something  and it's been applied in different cases and in different circuits but it's never been applied to say that you can leave somebody off work for five years the concept is that a leave of absence allows the employer as well  to recover and the employer is looking to the employee returning to work after a specific amount of time and a reasonable amount of time it's like that ickle question any governmental employer standing walking breaks whatever the position that the county has with the governmental force within the party meets that accommodation straight and that position is discussed with the employee and the employee said i would take that job except it will require me to add fifteen minutes to like commute and i do not want to do that and assume for the purpose of my question the right time has nothing to do with the requested accommodation as the county try to accommodate in that instance of that hypothetical so yes they have and your argument is that did not happen here my argument is that it did not happen  here and following through on your hypothetical i think that the employer with a government or other words could say that's a breakdown of the interactive process we have no further duty to accomodate him he would have a very strong  argument i think that the cases that say that you have to keep trying are looking at cases where the employee tries an accommodation and it doesn't work for example the one nine hundred ninety eight accommodation in this case that didn't work but i don't think that employee can turn down a position consistent with the law in the case law that reasonable accommodation and interactive process having been offered a reasonable accommodation and employer cannot be unreasonable in accepting i agree but i don't think that happened in this case and i think the evidence is very clear that it did not happen and understanding the difference question i think the differences are due to the jury but i think that as a matter of law the rule fifty motion should have been granted because there actually is no evidence of reasonable accommodation and there's no affirmative defense when we're talking about our affirmative defenses under the would not have accommodated her because mr scepter would never have been involved she would have gone on applying for for positions and not getting them and advising him so i don't think that you can look at the leave of absence in this case as as a reasonable accommodation if you did that you'd basically be be even serene in the whole concept of reasonable accommodation because an employer could just say ok you can apply for jobs and when you apply for jobs while you're on a leave of absence is a reasonable accommodation and that would interfere with with one of her disability or a facet of her disability which was that the depression and and the anxiety but in terms of putting up roadblocks they thought she was ask what she wanted to do and she told them you can't turn that against her and say you're putting up roadblocks and not cooperating she was cooperating very hard throughout the period she was applying for jobs she was looking at jobs and trying to evaluate