our second case for this morning is jones against the port county sheriff's department and others critical elements here i have toyed with the idea of opening my argument with the statement that officer vance made to my client on the elevator which triggers this series of events i thought i might where we have now boiled this case down to two things one the question whether his loss of his job was the result of unlawful retaliation and to whether h loss of his job resulted as a violation of the americans disabilities act because even though he was a qualified person with a disability allegedly there was a breakdown in the accommodation process so i realized and you know reading through the briefs a lot of discussion of underlying incidents that might perhaps have been also the subject of the race discrimination claim but that's not really what we have now right i mean it do acts materially adverse effects and why why are they adverse as long as they're just sitting there in the file even if they're completely phony and but nothing is happening you know what why don't we need to wait until there's a lack of promotion or until there's a firing or until there's something concrete because of the under what it is i understand why if the employer sanctions would dissuade a reasonable person from bringing an action then those those decisions those are things that the employer does would be actionable and if an employer is going to go to the extent of actually threatening with this is people in a file creating false ego you wish that would dissuade any reasonable employee from ever making the claim and a retaliation clearly in my would so it's no are you are you trying to argue that somehow all of this activity in the workplace is just waiting him from using the sheriff's department internal complaint processes and i'm just trying to get this to go from the events that you're talking about to the retaliation and the line of cases you're talking about white talks about the severity of what's happened you know if somebody walks in to your office and says boy you look horrible today i mean people happened it's not a nice thing to say that people brush that sort of stuff off if they come in and do something much more significant than maybe that's the kind of thing that would deter an employee of ordinary fortitude cetera from raising a complaint so so i just i need to tie this together somehow with what you think the retaliation was but i think it would do it dissuade a reasonable employee from it you know and i'm part of the problem of the gaps in terms of when these different incidents  because some of the gaps are more than a year or you know five or six months are like you know you know he becomes a supervisor in six ins and june of ten then for eleven he gets a reprimand on a  the documentation and then it's like six months later this comment and then a year later on the first f i'm really so part of the problem is how do you you know if there are these are like discrete acts but they're not in a short time frame or you know he doesn't get fired after any of those or threaten to be fired i mean i think that's what judge wood is trying to get at and that brings up how these things are in the can there what we have the made the statement and wrote up a different individual undoubtably because they do this so long after the fact actually after the e e o c charge that now what we have is a loose from what a reasonable jury could conclude is  look like you were actually conducted investigations investigating internal complaints when in fact you were not doing anything of the sort probably the best evidence you have is the whole lack of accommodation and that the timing of the july eleventh review of the doctor's letter and then a charm for me and he's unable to accommodate with a coming his return but then that's kind of also spills over into the a claim because in light of dr israel's restrictions how was john's shown he can perform the essential functions of the job with an accommodation so my times your time's up you should answer the judge's question yes i honor that this is a continuing action and these these claims although they are discrete on paper they're all part of the same series of facts the retaliation it's going on is going on right up into the point when they should have been engaging in the interactive process and didn't but the essential function one of the essential functions the county says is they have legitimate safety concerns about needing an officer to stay over in a crisis and not to leave mid ship and they had to good morning good morning i just want to revisit where mr copas left off with regard to the accommodation matter what we have here under the a b a is an obligation on the part of the employer to determine whether or not there are any appropriate accommodations once they've been noticed that an employee has a known limitation this corpsman so and has requested an accommodation as mr jones in this case shows that your view that it's really dr israel's letter that sets out at least mr jones's proposed accommodations that is correct your honor and those propose accommodations were only for to day dr israel asked that these particular four limitations or restrictions be imposed and in fact they were reasonable on their face not only because it was for just two days that he was asking for these restrictions but also because mr jones was already in what was considered a floater position at the time that this request was made by dr israel the floater position had him dedicated to the processing or booking areas which would have then permitted him to not be near the hanging cell the incident the cell where the hanging occurred would have also been one where if he did need to leave if his posttraumatic said stress syndrome symptoms manifest it there was a person in processing who could have relieved him so therefore that's reasonable on its face so quickly before you go further i just want to say that the letter from dr israel i thin see how you might read it as simply a two day restriction but it's a little ambiguous you know restrictions one and two look ok but three and four we have trouble with how about doing this instead or something along those lines dan is absolutely correct your honor and in sears this core also reaffirmed that basically an employer can not sit behind a closed door and reject the employee's request for an accommodation without explaining why the accommodation requests were rejected and offering alternatives here we know that there were alternatives  fact that we believe that these requests and accommodations were reasonable because of the two day restriction because there was no over time so the fact that available because of budgetary constraints which was evidence in the record testified to by the share of them sel process to determine whether there's any feasibility to the accommodations or even whether there are any alternative accommodations this employer has essentially flunked its obligations under the a d f a in this particular case where we have where there is evidence in the record that the commendations requested were reasonable and the employee was terminated or denied an opportunity to be a belt of these accommodations that summary judgment is inappropriate and that the employee should have been given an opportunity to produce the evidence at trial to prove that these are comedy just was reasonable and determine whether the employees protected ultimately informed influenced the adverse act in this case while there are many adverse acts in between and wall who conduct by the employer the bottom line is that this employee was set up for terminations and ultimately terminated as a result of the and so results of what filing the e e o c charge going to human resources to begin with what was the protected act to protect act was initially him at just what occurred in february twenty twelve when he filed his two charges on first first the the first of february and february fifteenth charges where he is relating back to how his workplace life accommodate all right which ultimately set him up for terminations well that that first when he front child now filed the first charge it was like nine days later they did accommodate him by changing his status to a floater based on yes  honor and then when the evaluation was done the evaluation reference back to that period when he had i problems and there was reference to the titles and it specifically referred to those typos that cover that period when it appears he was impediment is when later sergeant vance began to criticize his work performance and his attitude and claimed that he had and issued him a written reprimand regarding his work performance and so you already started to see how this continued hostility was continuing or informing the actions of his immediate supervisor also he was denied to the radio at that the court yours there's been much discussion about animists on the part of sergeant vance so we'd first like to point out that sergeant vance was not the decision maker with respect to the terminations and mr jones is employment or both you know what if sergeant vance was responsible for all of the negative material in the file that led the sheriff's department to and mr jones's employment at the end of the f m l a leave instead of working with him for an accommodation or allowing some kind of voluntary separation or taking any of many other steps that would have been less strict connie and if i understand your honour's question correctly refers to the papering the file argument the plaintiff's making that first assumes that there is some connection between these evaluations or write ups and the ultimate adverse action that terminations and here it is not as if this was a case of progressive discipline where evaluations and write offs form a foundational basis for the terminations mr jones was terminated simply because he did not and could not return to work after the expiration of his well but you're making an assumption there that is it seems to me contested on this record you've got dr israel's letter you have his efforts actually to reach out to people in the sheriff's office the letter doesn't read to me like an ultimatum the letter reads like here are things i think are going to work i'm going to look at him in two days so i said i think it's ambiguous to know exactly how long he thinks it'll last but why bother to revaluate if that's your final word and it's a mystery why the sheriff's department didn't come back and say you know we have concerns about having him leave at the minute of the last shift even if we don't think he would need to work a full additional shift and we you know what whatever they would say which i know spills over into the eighty eight that you are i think assuming as a fact and the record may not support this that there can be no resign you don't do anything your honor if this is in reference to the retaliation claim and setting aside for a moment the a b a feel you do a commie portion of this but you blinded them yourself just now by saying that it's the end of the f m l a when he was unable to continue working and i'm saying that that even that's not clear and there's all of this what mr jones has done is he's shown time and again that your own regulations require certain things such as a steve or a signature on evaluation or a signature of somebody else saying that the person refused to sign that various types of discipline should be in files and none of it's their reason to believe that these things are just thrown in later that sounds as though somebody is being set up to be released as soon as the first opportunity to do that arrives is i e retaliation for behavior follows the filing of the e e o c charge and these people whether it's vance whether it's bell are larding up the filed with things and so when he goes out and is definitely leave  commended for his role in averting the suicide and he's got a little p t s d afterwards injured very upsetting thing to be involved with that you know instead of  working with him because now you've got to set the stage all set to get rid of him you get rid of him instead you are all of these factors these actions most relate back to the decision maker with respect to i the i understand that the decision maker is relying on the file no the roots decision maker actually that record is clear that the decision maker whether its chief deputy so since ski or jointly owned the director of human resources did not rely and on any of mr jones's evaluations or and there's nothing in the record to demonstrate though that this procedure was in fact any different from any employee we had not made a complaint of discrimination but but there are there we do have to blend over to the eighty eight because to look at those modest restrictions that dr israel suggests in his letter and says please call me you know whatever he tries to call in his phone calls aren't answered to assume from that that you're dealing with a person who's completely there was no discussion about it so there was you can't stand here and say there was an interactive process right knows as soon as the letter came he was fired so there was no discussion what so ever and let me so there they see that element of the letter don't have him worked up and shifts apart and says wait a minute you know an incident may arise where there's some spillover and maybe dr israel modifies had to say don't have him work to prescheduled double shifts but he is released if he needs to stay over to finish up a matter that's under way for as long as is necessary for another person can be brought in who who's presumably started their their new ships you know there it's very easy to see how that modification could be tweaked to constituent to meet the department's legitimate concern so and there may be similar  the other you know the department could say we're not going to do this permanently but we're willing to do a trial brand of two weeks you know or something like that and then we'll see whether he in fact has proven to be able to continue with the job because some form of leave is a type of accommodation under the law so so just simply look at that letter and say oh no accommodations is it's unrealistic and there are ways to hypothetically come up with ways that some employer could accommodate and that's what and that's why this department didn't come back to mr jones and dr israel and say what you suggested doesn't seem workable to us but here is something that we would counter offer nothing like that happens that is not the reason the department did not do that your honor how do i know that they didn't do it and there's a duty under the performed his essential functions of his job with or without a reasonable accommodation he has presented precisely that kind of evidence he has said if i got the accommodations that dr israel was suggesting i could do the job he doesn't know i mean you can't ask him to do this against every possible thing that the world could imagine but he has indeed said i could do it this way maybe there are other ways he could do it to clo skis that he might have to work overtime but the county of budgetary restrictions on overtime at the time you agree with yes your idea in the letter didn't say jones was incapable of managing traumatic events only said he was to have limited exposure to the one cell where the traumatic event occurred that's correct on or so limited doesn't mean zero it doesn't but jones is restrictions were viewed separately they were viewed in the aggregate as they were intended and taking setting aside those restrictions but looking precisely at the restriction that he must be allowed to leave at any time his symptoms arise the jail could not accommodate that restriction as chief deputy so since he noted that safety concern both for inmates and for other jailers whether was two days or twenty days but mr vaile did give restriction itself may have just been a two day restriction and you could have given him two more days of leave for that matter if you didn't want him at the jail i don't see anything in dr israel's letter or his approach that says again that says that it's an who wanted to get rid of him is irrelevant animist is not a factor into the a t o a failure to accommodate but to find that because they didn't engage in the interactive process in this case they're somehow liable would turn the interactive process  independent basis of liability see the problem to when you go back to the root of why even have this problem you have this problem because he was only garden without a radio that's incorrect john f the record makes clear that he was not the only guard without a radio and unfortunately the record demonstrates this was a widespread problem with the issues within the jail on the radios repeater and that radios were breaking faster than the jail could replace them mr jones was not singled out unfortunately but he  didn't have the radio at the time in this traumatic event became even more dramatic because of the lack of the radio and so he should be faulted for the department's shortage of flashlights i mean about this because the department immediately finds a radio for him right after this event somebody could infer that maybe they could have found one before too i mean he's just just so it's looking according to me he's no more likely or less likely than any other guard to encounter another similar situation i'm sure they don't happen every day at the jail so suddenly boom there's a radio certainly that is that is a fact that we were forced to accept at the summary judgment stage however there is no basis to assume that because he got a radio the inability to provide him with a radio earlier was an act of retaliate and it is import said that jones says that when he when he explained when he asked vance for  radio he told him to get the hell out of his office i mean that's his testimony i understand you wouldn't agree with that but and so he didn't say we have a shortage of radio sorry he did and that's correct your honor but it is also important to note that all of these allegations this animus these alleged bad acts they are entirely divorced from the decision maker and the decisions which were made whether its chief de could not return to work or whether it's the decision joyce leone that he was out of a family leave and they're only divorced if the f m l a leave itself has nothing to do with that and i think the link that he's trying to show is that if he had been given the radio if he had been you know given the counseling they got the last time he was exposed to an attempted suicide the f m l a leave itself might never have happened to you or that obviously traditional principles of causation apply  that asks that the department assume that it doesn't give him a radio and then can presume that because it doesn't give him a radio he can't respond to incidents and because he can't respond to incidents he's going to get p t s d and because he's going to get p t s d he's going to go on leave and he's going to explain his absent leave leave is going to expire and it's not going to be able to return that kind of connection is absurd there's also no evidence though that the inability of the department to provide him with a radio however unfortunate was retaliates hoary this was a widespread problem mr jones hasn't presented any evidence that people who did not make complaints of discrimination were treated any differently to address evidence taken as a whole is all designed to demonstrate conservation a retaliatory animus that led to the ultimate adverse action and here there is no connection for conservation in this case there is no animus on the part of the decision makers who made that determination with respect if i may briefly address the leo sees claim as to whether mr jones was qualified perhaps there was a misunderstanding of the record but there's been no evidence that mr jones could have performed his duties as a jailer there's in fact no evidence that the department could have accommodated him it in book the department said all he was doing was floating around in cleaning floors and doing something so trivial that they put in mates in on it so it seems to me your position is a little contradictory if his job was really that easy to perform then surely he could have performed it with the restrictions dr israel put on him you know and i see that eliminated and mr john was transferred to the position of a jailer once isn't mishal requests for accommodation came in for his visual restrictions he was then made a floater a floater is not the same as the janitorial duty say he had been doing but it's end it is a back up person a person that's to respond to incidents involving other jailers so it wasn't as if he was doing trivial tasks as a floater but a floater is there to assist whenever needed and that's precisely why he could not be accommodated as a floater because at any time a floater is needed to respond ok thank you very much thank you i believe that both appellants used up all their time to mr g because his he want eighty good faith is a factor and when there is evidence of and that really complicates the issue of whether a person could be acting in good faith it raises a genuine issue of fact as to whether good faith was even going on and the ultimate decision a dance has again all advances information is going to bell bill is saying that he's directly involved with the sense in making that decision so the testimony is mixed on that's the sense he is the night that he talk