good morning in may it please the court opposing counsel my name is jonathan brown it is and it is an honor to be before this court representing mr mcneil today i would like to reserve five minutes of my time for rebuttal this a case that boils down to the facts and whether a jury should be allowed to weigh those facts and the evidence and have an opportunity to apply it to the law there are several facts that issue in this case but what is not is that what is not disputed is the fact that mrs macneill suffered through a particularly horrendous sequence of events and a time in our life when several major events coalesced at once the issues i'd like to discuss today are whether  certain job functions are essential versus marginal i would like the court according to readers to keep in mind that an employer bears the burden of showing that a particular function is an essential function and we were directed not only by the regulations but by multiple cases including scruggs fatally comments that there are that when determining whether a jobs function is essential we look at several different factors what functions the employer thinks are in question that you asked earlier this morning and looking at whether or not other employees have been given opportunities and i think you use the example of fifteen percent whether or not we can look at that and determine if other employees are given reasonable accommodations to that extent whether or not that goes to the question of essential function and i believe the mr moral behavior in pacific was correct in that it does it is a fact that can be considered and in fact i believe a jury in this case will consider that it goes to the consequences of not having employees perform the function which is another one of those tests and whether other current point employees in similar jobs perform the function i thought the rear of position in this case was that overtime is an essential function we can accommodate a person who says i i can only serve a cause ok janelle over time because there's at least three other people i believe who would be compar most comparable of that situation but we cannot accommodate a permanent prohibition on overtime that's exactly correct and whether or not this is a permanent restriction is a genuine issue  fact and i believe the district court reference that in their order granting summary judgment that there is a disagreement in fact on that issue of whether it's temporary versus permanent your honor you mentioned the three compared to yours and i would like to take to some time to discuss those because this case your honor in all employment cases are very fact intensive the st compared and this mccabe has a permanent restriction there's no disagreement effect it's permanent the restriction is that he's restricted to ten hours of ten hours of work their normal day is eight twenty five hours and that's an additional two hours however looking at the reality of why this c c d this critical call dispatch position required over time is to have somebody who scheduled on a red day be able to stay four hours past their shift to account for somebody who is going to show up for the next shift a ten hour restriction your honor per se restricts the ability to do just that he can't stay the full four hours in fact in a police brief they went through an itemized every time that mr mccabe worked overtime he was granted his restriction in march of two thousand and eleven how many times did you work overtime in twenty thousand  record whether that was five minutes of overtime it had to be less than two hours of overtime but we don't know but that goes to those questions those are facts that a jury should be able to weigh and say hey the fat is mandatory overtime an essential function if you're looking at how many times the comparatives actually worked this mandatory overtime in fact if you take for example two thousand and thirteen in which mr mccabe worked six times taking the year in which he worked six dollars to six dollars occasions of overtime that's only two four percent of the year when he even had to work overtime and again he went two years without having to work any i think that's a fact that a jury should take into account in way as to whether this is an essential function something the court the district court did not do they simply said this is an essential function of the job they have compared this case to the turntable case and use that they relied on  that heavily and her opinion and this case is vastly different from the turntable case in the turntable case there were twenty two saturdays in two thousand and five that were over time here again we have compared that at the most works  six to two years work one and two years work to zero there was a permanent restriction attorney go again this is a summary judgment the court must view the evidence and light most favorable to the nonmoving party there's a disagreement of fact as to whether this is a permanent restriction therefore our restriction is temporary for the purposes of summary judgment also all other employees international had to work overtime looking at darcy brinson who's another compared  believe laid out in their brief how many times darcy brinson worked overtime again she was given her permanent day shift restriction and january of two thousand and twelve again in january in two thousand twelve the entirety of the year worked not one minute of overtime no time two thousand and thirteen no overtime in two hundred and one thousand four hundred and fifteen she works six and five but again that's granted the scope of how many times an employee works i think that is a factor and then specifically factor number three and how much time an employee spends on the job performing the function again just in larson is a another compared to who's restriction was he could work an occasional twelve hour shift and again i'm really not sure what that means when it says an occasional twelve hour shift if this is a man if this is a mandatory essential function what would stop mr larson from saying i worked i worked in overtime last week i'm not doing it again that would weigh against this being an essential function of the job and also go to the consequences of not having the employee perform their function there were multiple redundancies that the c c d put in place to account for the fact whether or not somebody could work their red day the day that they were scheduled to work there mandatory overtime in fact there's also a disagreement in fact as to whether the employees were scheduled for one or two days which is a is a big difference whether or not employees scheduled to work mandatory overtime once or twice per week in the case of a d'arcy brinson the permanent day shift restriction with a  overtime again i'm not really sure how the rd overtime be gets applied but as a reference prior she works no overtime for the for the course of two years miss is making it was the company supposed to know a little when the need for overtime will rise the company will not know when the need for overtime arises i think you would you please going to argue that the availability is the essential function they veil ability to be present for over time but again looking back at mr mccabe how is the company going to know that they need four hours of overtime versus two his restriction is too so if the person following mr mccabe doesn't show up for their shift and he is scheduled a red red day it's his responsibility to stay for that four hours now the company is in a position where they have somebody who can stay two hours and what does the company do they go to the next one down the line they go to a blue day and the tan day and this case this is a permanent restriction for mr mccabe and mrs mcneil is only alleging that her restriction was in place from september when it was issued by her doctor to january that's not what the doctor said though that's another one of the problems that is one of the problems thank you for asking about that because what i want to point to is that goes further down the line to if the court decides it is an essential function and then we're asking whether or not she can perform that us on that essential function with or without reasonable accommodation and whether or not you gauge in the interactive process and i would direct your honor's attention to the portions of the joint appendix dealing with darcy brain since restriction her restriction she was  and eighty five if you look through those what you see is a letter from this princeton's doctor saying daytime only then you have a letter with the new p letterhead going back to the doctor to the disability team asking for more clarification what does that mean does that mean she can work overtime does it mean not overtime and the doctor then responds and clarifies that in this case we have a letter from a doctor saying over time it doesn't say you know overtime for any specific permanently and it also doesn't say only until january but what you didn't do is engage in the interactive process like they did with the compared or darcy prince and go back and say give me some clarification on that what would need to be clarified  sharma's letter i think whether or not it's a permanent restriction and also your honor i get if you look at darcy brunson's initial restriction that was placed in january of two thousand and twelve it says daytime only and then throughout the interactive process the overtime gets defined as one rd over time so it changes big based on u p s inquiry question of whether or not the ability to be to work overtime the availability for overtime not just overtime itself but the availability of overtime is an essential function of her critical call dispatcher job or the c c t job and once the district court correctly made that determination both her race discrimination claims and her disability discrimination fail so it's important to properly analyze as the district court did y c c d s were required to work or to be available to work track they're about three talent sometimes on the track and the job description which is that the appendix seventy nine as the primary function of this position is to respond timely and with the sense of urgency to incoming phone calls related to critical incidents on or near railroad property to ensure employee and public safety so they were very important job in handling these phone calls and therefore it's critical to house the fish and staffing in the r n c c which is reflected in their scheduling and attendance policies so for this reason the c c d they can't just leave their desk at the end of their eight hour and fifteen minute shift they have to wait until they're replaced the next c c t v and only one thinks he is allowed to leave the room at a time during the shift and if the c c d calls in sick or is running late the arm c c does not just leave it to chance that there will be somebody to replace or to stay in that seat that's why they have the system of red days and blue days as the c d n knows that if they it today is their red day they could be called in up to not necessarily the full four hours but up to four hours early or they may be asked to stay up to four hours late and then if they're out on their blue day they're next on doc in case they're already used all the people in their red day so in addition c c d is can't just and their shift in the middle of a critical call one of the requirements is that they stay sometimes thirty to forty five minutes past the end of the shift if they're on one of those critical calls because they can't just handed off to the next person there's continuity there that's required to make sure that this critical call is handled appropriately and all of this was most important during the day shift that shift that ms mcneill's doctor said she had to be on that's the shift that had the most emergency calls come in and therefore require the greatest amount of overtime so it was with this background that the district court made the factors in the regulation and determined that the ability to work overtime is an essential function of this position so st the job description we already talked about the scheduling requirements that  mandated overtime as a requirement and it's the specific it's not the specific words that are used in the job description but how the job is required so for example in the alexander versus northland in case vacuuming wasn't even mentioned in the job description so here the specific job description doesn't mention over time while the scheduling or policies do but in alexander the court said the job description said you have to be able to perform all of the functions as needed and every supervisor testified that that included vacuuming so the court relied on that and saying the job description showed that the vacuuming was an essential function of the employer's judgment obviously judg full time presence is not an essential function on its own but there has to be tied to some other job requirement and in this case the union pacific has shown why over time the ability to work overtime is necessary and the called in late so say you got to call five minutes before the next shift to start and that's the cd who's supposed to replace mr mccabe says i'm stuck in traffic i'm not going to make it on time mr mccabe isn't just going to say i'm sorry i can only be here for the eight hours and fifteen minutes of my shift and he walks off the job that's what ms macneill's doctor said her restriction was it was no overtime and therefore her restriction was different from mr mccabe if if she had  the doctor to say the same thing that i think was met life said which is that was only going to last for four months and it wasn't even four months because she wasn't coming back to work until probably october thoroughly maybe three  months would you need pacific been able to accommodate that no you are because st of all the ability to work overtime is an essential function of the said they were wiling to do it earlier well they said they could do it for eight months they said eight weeks if you look at the email correspondence in the situation they said she was her return to work day it was like june th and they said they could they could accommodate it through a certain date in august so it was a total of eight weeks but regardless in the verses i am for case the court said that we're not going to punish an employer by will being willing to go above and shift in case they're on well i think mr mackay being able to work that additional two hours i mean the fact that they have to stay on that critical call until that critical call is resolve addition the ability to stay at least until you can get another c c d who may be on their red day for the next shift and call them in early to get there because they have to come four hours early i mean that that ability to cover as opposed to just saying i'm sorry it's the end of my shift i know you need but in this period but i've got to walk out the door that's the essential function that mccabe and larson and brinson   i suppose if somebody could only work one hour you might say well that's ok too the calls to thirty to forty five minutes or maybe you wouldn't say it's ok i don't know what you would say but  to understand doesn't sell at the four hour before and afters really essential function no i don't think it's you have to be able to stay for four hours and that's not what the record reflects i mean the policies say you have to be available to come on up to four hours early or stay up to four hours late but what the the record shows is it's this flexibility that's really important and work through agree of flexibility i mean up to four hours is flexibility right but it passed to two hours is not as flexible as up to four hours true but it has to be sufficient to be able to get them what they need to be able to get another c c d in that how do we know how long it takes i mean suppose somebody to can get there within two hours of well i think they have sufficient i mean you've got more than one person on the right day that's why they also have blue days i mean i think the scheduling that they have come up with and by the way mr mccabe also worked on the night shift so there wasn't as much overtime on that shift there weren't as many critical calls and so maybe they could get by with ten hours there whereas ms brinson and mr larson they had a twelve hour minimum memory or restriction they couldn't work more than twelve hours so they could fully cover that four hour period so the difference between that day shift and the night shift is important  so a few minutes ago council went over some statistics for mackay brinson and larson and they indicated if they're if they're accurate that in fact those compared tours actually didn't work much over time and with brinson even a couple of years with actually working no overtime and that's how does that play into decision three dollars to four dollars times a month they were all scheduled for a red day meaning on that day they were available to work overtime that's the st point but the nd point is in the this is similar to the dr pinsky versus douglas county case which is the case judgment you sat on the panel the employee in the situation argued that things on the job description so lifting one hundred pounds operating in jackhammer moving tree limbs that those couldn't possibly have been essential functions of his job because he worked the job for five years and never performed any of those functions nonetheless the court found that the potential for these functions existed and that is does difficult to describe exactly what those employees were going to encounter on those rural roads in douglas county the same situation as here union pacific doesn't know when they're going to need an employee to cover the overtime because a c c d is late or can't be there  and but there's no dispute that there is that potential that if somebody calls in sick they have to have someone in that seat to cover that critical call coming in well let me ask you about something that concerns me about this case and that's union pacific engagement and in the interactive process it seems like you persist persistent position is you tell me of this directions are we say no and then you tell us well maybe we'll read do that which we say no we can't accommodate isn't there some obligation to sit down and say well maybe we could do six weeks maybe we could do a weeks if you can get the doctor to agree with this it doesn't seem to me there's any back and forth these restrictions and so secondly here's a toll free number you call and see what's available it does not so with respect to the restrictions on the interact the overtime restrictions number one if this is an essential function and and  not show that they could have accommodated her in the c c d position of the we don't know what the essential function is it was four hours to start with now it's two hours maybe it's an hour i mean that's isn't that what the interactive process is about to say well we say we say four hours but we could live with two well her doctors restrictions said no overtime and the case was clear that they employer is allowed to rely on those doctors restrictions and in fact in the record f d a nurse jennifer roberts explained why they can't just take the employees word for it they have to rely on that doctor's information she said we have lots of employees who come in and say well my you know my doctor's note says this but my restrictions are really this they have to be able to rely on not those doctors restrictions and in this case it's clear that miss mcneil understood that she thought her restrictions were through january and union pacific understood them to be indefinite and there's a phone call a transcript of the phone of a phone call in the record but between her and mr weiss who's been e a p you know pacific employee where she complains that union pacific misunderstood her restrictions and he says you've got a follow up you've got to submit a doctor's note that makes it clear that if you're restrictions and in january that's what your doctor says to you and she says ok and gotcha and then she never does that and in the russell vs t g in missouri court case it's very similar where there was a letter submitted that said the employee could only work eight hours per day and if i can i'm almost out of town if i can continue and answer your question in that case the employee said yeah but that also meant i couldn't work over forty hours in a week and the employer said well that's not what the letter sad the court found that because the employee believed that the employer knew her restrictions to be different from what she thought it was incumbent upon her to record to correct that misunderstanding by the employer but ms mcneil never did that she never submitted anything from her doctor clarifying that restriction  really so they offered this one thousand eight hundred number which she never called they said this is will provide you assistance in finding another job she never called that they also made job postings available there to her that were not normally made for employees who are on light duty and she applied for two of those jobs and she wasn't qualified for those jobs but she applied and so it shows that part of the interactive process that impressed if it provided was of effective and then at the end of her long term disability they contacted her again and said your disability is expired if you want to come back give us a doctor's note showing that you can meet the essential functions of the job and she never did so we would ask that the district court's opinion be upheld thank you the benefit of that dispute for the purposes of summary judgment there was a lot of discussion about what what is the essential function to four hours it is a two hours i would also remind the court that the compared darcy branson the rd over time justin larson could work and occasional twelve hour shift if the court the district court's opinion that the essential function is to be available for read days which occur three dollars to four dollars times per month the compared can't meet that essential function either if you can only be available occasionally now you're looking at and say oh you have to be available four times per month if mr larson is called to work overtime every time all four read days he could very easily turn around say oh i've already met my occasional overtime and i'm not going to work anymore which would put new people back in a situation where they're scrambling to find somebody why is that for months vs permanent genuine issues of material fact if if there was this recorded phone call where a company in the employee discussed the supposed ambiguity in the employee don't think cases say what counsel suggested that the employee needs to come forward with additional documentation to happen early and in looking at what the comparatives did and what you did with the work shift work only the above restrictions are considered per minute the next day is a fax to the doctor from jennifer from jennifer roberts from nurse roberts making further inquiry is st work shift work only specific only to the time of scheduled work or work restricted anyway does st shift work only impacts scheduling of rest day for shift work only negate supervisor schedule or request to begin work early or late u p took the initiative there in that case but not with mrs mcneil why that's a question i think that goes to judge malloy's question earlier is if you have the employer doing something with other employees and trying to determine whether or not they're able to meet an essential function and frankly we're not even i don't think we've even established that is an essential function but if it is and we're trying to ascertain whether or not they can do that they can perform the essential function with accommodation i think you should be able to look and see how they've accommodated other employees and apply it to whether or not they did that with mr with mrs mcneil and if they didn't i think that's evidence that goes towards discrimination and that's what we're asking a jury to weigh and find here in your honour's i'm out of time if you are thank you for your argument thank you thank you to both counsel cases submitted and the coral file an opinion in due course thank you all for your arguments this morning