judgment most of her summary judgment is moot we request that this court be that this case be remanded to the district court so it may proceed to trial the essence of this case is about the broad protections that california provides disabled employees california is unique in its protections in the legislative findings and declarations of the fee ha that the california legislature makes clear that it's intending to provide more what evidence is there you have that mr maker's physicians would have been able to provide a clear prognosis or return date because i didn't see any well i would say your honor that yes one of our major arguments is that the n s f was obligated under the california code of regulations and obligated under the case law to engage with mr macor upon the expiration of his that family leave if they had done so  are required to do under california code regulations eleven zero six nine b we need a specific date we want to know how to fill your position we need a specific date that mr mcwatters physician could have then estimated that time i said well i know for sure he'd be able to return at this time but it's true you didn't offer anything in the case below to show that if they had that he would have returned on such a da because the evidence is actually to the contrary it sounds like they couldn't get the doctor didn't give a date and he was not doing very well well no your honor i would say that the doctors have that was submitted on september and september of two thousand and twelve actually indicated that mr mccourt's condition was improving well he says he's getting better if you talk about the september sixth thing yes ok he's getting better but he's still being treated does not include a return  but he gets upset when discussing return to work correct yes but it does indicate that his condition is improving i think that we have also we all listen but then i think you're also vote challenging that they didn't reach out after october twentieth for january sixth correct and we look at what was really in the communicated at that point it says the physician since a no that maker mr maker is totally incapacitated until at least january two thousand and thirteen and then in january sixth two thousand and thirteen it's his vision sense of note that mr maker is totally incapacitated until at least march two thousand and thirteen and so i not necessarily disagree with you that there's  a would could be an obligation on the on the employer to reach out but it seems like the case law that's out there seems to suggest that that would happen when they get some  sort of statement that says that might be or that there would be evidence that he would be coming back row nor some time certain and there was no evidence of that submitted at this point in your necessary that extended leave periods there sorry that repeated requests for leave don't automatically render the leave indefinite and that had had f reached out to mr macor and stated we need a firm return to work date that mr mccourt's physician would have said well i know it will be ten months from now whatever that padding would be for a firm were turned to work date if that was required but i don't even think under the case law that's required as we pointed to on our brief and i would also say that the n s f they did not make the decision to film mr mccourt's position at the expiration of his f m l a leave because they didn't understand his leave or they were confused that is what they do as a matter of policy they do not have any procedure in place to interact with employees that that are coming up to the expiration of their a family leave were guarded lists of what their doctor's notes say their policy there is a huge gap in their in their policies  that that negates or ignore their obligations under california law but you do i guess concede that mr maker has not provided any evidence that the duration of his leave would doctor or anything like that did you that if we would have contacted me i would have been able to tell you what date he returned well we know that mr you offer that we offer what we offered where the doctor's notes that were actually submitted to be i know  offer any court kind of proffer i think that's a yes or no response as a yes or no response well can you repeat the question did you make up proffer down below that that they had been as have had contacted the doctor the doctor would have said yes i would have been able to tell him that he was doing better or whatever and that he'd be able to return for a certain date you know we did not make that that exact proper but what we contend what we know to be true is that the california law requires that there be an interactive process that there be a meaningful exchange between the employer and the employee to to clarify what if there is any question if the employer how any question if we look at the regulations in other words you're saying you had no obligation to offer any evidence whatsoever so long as submission no my submission you know what we're stating is that we what we what mr macor submitted were repeated leave notes requesting extensions of leave that's what we that would that's what we offered and that explanation is all about yes that you had no duty in the context of the litigation to come forward with any evidence to suggest that the interactive question try to focus you on what your obligation was in the context of the litigation i think our obligation in the context of the litigation was to show that there was that mr mccord there was at least a genuine issue of material dispute regarding whether or not mr regarding mr mccord the ability to accommodate mr macor and i think that we did show that we showed that mr macor mr macor and his health care given that mr macor turned to work with out restrictions i'm trying to understand why you were arguing that he was entitled to reassignment as accommodation if he was ultimately returned to work without restriction well i think we have to go back first and say that that leave is a reasonable accommodation we know leave to be a reasonable accommodation and that accommodations a reasonable accommodation is only one is effective in returning that and we also know that leave under california law requires holding the job open however if the n s f is saying that mr middleton when he came back you agree the doctor said he's coming back without restriction but that does not your honor that does not mean that mr hoar is no longer disabled under the law is just and actually the law is clear from the very statute it's as that an employee is is a qualified individual when there  perform the essential duties of their job with or without accommodation it takes that just because an employee is returned to work without restriction or without without the need for four without restrictions yet that you can be disabled sure but not all disabled employees require accommodation well because he didn't first of all he didn't come back he came back to a job he didn't have a job anymore and and be n s f has like taken contrary positions i will say on one hand they say there was no obligation for them to reasonably accommodate mr macor and on the other hand they say oh no we did reasonably accommodate mr macor by providing him all the leave he requested will leave is not effective in returning a person to work if they don't hold the job open or if they don't reassign the person to a vacant position which and i will say as of january seventh the on january seventeenth when they subjected this  mccourt to the sixty day find your own job or be terminated policy they knew he was still on leave they knew he was disabled they knew he required accommodation they knew they did not hold his job open and that at that time yes they were  for accommodation that was available for that and that the railroad had no obligation to do anything at that time mind you here we're not talking about an accommodation of a leave which he received he received an extended we were talking about and i proposed a combination that came up for the first time in summary judgment in this case wasn't play it was a charge to the effect that somehow we had the obligation to keep the trainmaster job open which he was totally incapacitated from performing there is no authority have asked before unilaterally deciding that he was on you know on an indefinite leave why didn't you do that i mean how hard is that to pick up the ball there's no obligation your honor let people have four months of job protection and that was a hard fought gain  twenty five years ago they have four months of protection when they're not back by then an employer has a right to fill the job there is no obligation anywhere in the law so why anybody in your view does engage in the interactive process mean well you know what i think it means know when you have a record like this all references that i think this is the best definition on that issue that i could you know sort of pull out of there the record eleven zero six ninety three the regulations the employer shall miss you the interactive process after exhaustion of  work unable to return to work in fact all the evidence is that from that point he contended that he couldn't work even further that he was even more depressed that he that his disability continued even past december because his short term disability benefits minute the full pay for six months which he wanted to the point that point in time that was that was terminated and on december seventh of two thousand and twelve and he appealed that that determination he said he was still totally disabled at that time now the construct that i think the law imposes here is and it's the scotch versus our art institute case and it's the not offer of cases like in this situation you determine whether there was a reasonable accommodation available under those circumstances and the law under the  same if you can't do that there was no duty to engage in the united process it's just that simple but at what point in time well i think the the point all the way your order from october through march of the next year he was on an indefinite leave with no with no and this is the key here counsel is one is saying there's some kind of duty to keep a job open indefinitely the dart case which he cites actually said that recovery time of unspecified duration is not a reason accommodation where the employee will not be able to return to his former position and cannot sake when and under what circumstances he could return to work at all that's one of the few key cases they rely on in this case dark one of the ninth circuit case and i think the law is pretty clear guidelines that someone needs either an actual or approximate date of return in order to trigger this accommodation because at that point the employer has something to work with we know when the person's expect be back we can see we can best available job opportunities and positions that might be there for the person given their limitations or whatever and at that point we can look at what it is we legally have to do there was discussion in the briefs about undue hardship i didn't hear anything about it today but you know and you hardship is completely irrelevant because you only look at an undue hardship in the context of a specific proposed reasonable accommodation and there wasn't any here therapeutic effect from notifying an employee that we're going to kill your position i've never seen that your honor in any of the case law might that inform the duty do to be interactive in other words i mean it's not solely to think that an employee who's told ok you've got five weeks of leave left we've begun we've advertised your position because we have no reason to think that you're going to be prepared to come back  and leave provided by the short term disability plan he has put the regularly on notice of that it says right in the plan that we have the right to feel your position after twelve weeks no surprise at that happen here that's a form letter that went out and that's the problem with it isn't i mean here's where we are and here's where we had it before and i'm not suggesting that the law imposes this i'm just really asking the question you know i think that it's a form letter and that you look at different persons different dates different circumstances it's just a letter that's used in connection with the short term disability plan but know what what i think what you're talking about is perhaps the more common situation of someone saying ok look you know the person can be targeted to return to work event or second ok all right or at some point in the following month right that that happens often and then you know then they can have that discussion then they can look at what's going on the railroad might very well have still field that position understand there are many many train masters  know in a railroad or made of offer him something else or may have offered him a completely different job but we didn't know anything about his ability to return to work at that time and that's what the case law is clear about in terms of us not having any obligation to do anything in that respect i would after giving him all the paid leave that you were required to give him crap his leave was extended and until he returned to work  know on october seventeenth that's our position and then you that you told him that he could apply for other position that's right and that's pursuant to the short term disability plan which is a neutral nondiscriminatory policy much as the policy was in is just payroll funded and long term plans through a carrier like midlife but no it's it's a plan where we're people here were criticized somehow in the briefs for having some kind of gotcha system of putting people on leave in the firing them but no this person actually got to leave that allowed him to come back and look for jobs under circumstances when he otherwise could have been fired and what it is it is it gives people income protection up to six months and leave of absence as needed and even appeal rights if they if they contend that they're still the same and then at the end they are there they're given the sixty day unpaid leave of absence in his situation and allowed to access the mail positions at the railroad as the court suggested that he wasn't disabled that time all of the all of the preferential reassignment cases that exist in california genson spitzer all those cases dealt with people who had severe limitations and disabilities and the employer found point we don't contend that we had to accommodate him at that point i think the argument in the brief was that it to the extent that it was in some conceivable obligation that we did so by by this reasonable procedure but no he was not a qualified individual with a disability either the time the train master position was filled or at the time he was terminated there were trainmaster positions available it's just not the money that he had before there would be a player supervisory positions right well i think it be more active say he applied for  computer professional and systems design kind of positions that were completely different from the trainmaster job he had before that's that's what he did where the trainmaster jobs that were available in other places they were there were two of them in barstow in bakersfield for that period of march and april which we put into the record and and also you understand the process is one thing i want to say to him in opposition to this this concept that somehow we retaliated against him which we interest in finding such a job what happened the only day on record that we have of him actually trying to find a job completely know if ice any put conceivable retaliatory intent he calls george hill and someone back in texas breckenridge on that day and says hey i'm having trouble getting out the system to look for jobs and within minutes they help so what does that tell you does that suggest maybe that if he found a job a trainmaster job somewhere and calls back and says hey can you help me with this that they might have assisted him in making the application or something sure does sure it does and that's the whole point the whole point of this is people have been out on leave they don't have their old jobs anymore they have to tell us that is what they're interested in doing and by the way to the kicker to all this i mean that the key point is had you come back with some limitation like i had depression i i need a less stressful job something like that or i need medication residual effects of my disability under that regulation sure there's an obligation to accommodate absolutely and we showed how we have a reasonable combination practice but there's a there's a button you push on the website to access the reason accommodation materials and that is something that was available to him but he did not access them he had no interest in accessing them because unlike his attorneys at this point he he didn't doesn't contain he was disabled he understood and testified that he was fully able to resume whatever job duties he might be offered or or able to apply for so he quite simply was not a qualified individual with disability in that situation and that means he's not entitled to protection is that there was a hard fought battle in congress for f m l a leave which is actually at twelve weeks and that that's all that's required of an employee is far is holding a job open that is not true the fee hike is more expansive first of all the f alay was in acted to provide relief for caregivers it wasn't even necessarily enacted to provide leave for the in the individual however feel is much more expansive and it requires holding a job open job protected leave is a reasonable accommodation are you claiming i just don't must be missing something important here are you claiming that they didn't keep the job open for the time  required to leave it open correct your honor i'm saying that they did not leave the job open for that that they knew that mr macor was requesting job protective leave and that that and that the whole point of providing a leave there would be no so the bigger picture here your honor is that leave is only a reasonable accommodation if if it enables the employee to resume the essential drew to perform the essential functions of their job if they are not allowed to resume a job if they're not allowed to be returned to work after that leave so your position is that on march seventeenth his position still had to be held open in the alternative your honor i'm saying that or in the alternative f that's a question of undue hardship filling the job and not the regulations make clear that when the employer is going to reject the employee's requested accommodation when they're going to reject that they have to they have to the words are shall they engage in the they shall give it due consideration the requested accommodation and if they decide to reject it they have to interact with the employee to determine other forms of accommodation that might be had engaged in undue hardship analysis which they didn't because they didn't feel they had any obligation to they and said hey you know it's too burdensome it for me so i think i understand so from your position it's either indefinitely or interactive process to avoid the obligation to provide indefinitely as a reasonable accommodation no you said what did i just say that was incorrect in your theory so we're not claiming first of all we're not claiming mr macor was on indefinite leave our of course he wasn't but you're saying you're claiming i think if i understand yes that the obligation was to provide indefinitely no the obligation was to into was point to the exact eleven zero six nine that it doesn't say there are the employees requests requested reasonable accommodation just as the employee has requested accommodation the idea behind the interactive process and reasonable accommodation undue hardship is that there will be a meaningful dialogue between the employer and the employee to determine what accommodations accommodation to what what was his disability march seventeenth when he came in so he was suffering from depression and anxiety and we know the cases hold the cases maharaj and r t a go hold that a person doesn't just lose their disability status because they returned to work without restriction i will also say to the court that garcia alla the court held that some that some of these disabilities that people know that some of these days disability are defined precisely by i broke my leg i have to i will you know the wrath of god you have and i clued into my concluding statement is we believe that they're the the record shows there is it's fraught with disputed issues of material fact and we believe that the reasonable dose of an accommodation is a jury question and that all of these things all of mr mccord causes of action should proceed to trial so that the fact finder may make those determinations thank you very much thank you thank you both