there's three jury instruction issues on appeal and there are appellate issues regarding the denial of two motions in our view all of them are important and all of them substantive i'm going to address as many as i can in the limited time that i have at the in the trial court the plaintiff requested a jury instruction regarding the interactive process on the reasonable accommodation  duty the court did not instruct on the interactive process rather just giving a model instruction from the ninth circuit in our view as i read the record you actually asked for an instruction that would several reasons that the failure to give that instruction was important in this case number one is the outcome of snap one in front of the ninth circuit in snap one of the ninth circuit panel decided that there was a material factual dispute as to whether burlington north or in in good faith and engaged in a interactive process to arrive at accommodation that was the issue that was highlighted by the ninth circuit the ninth circuit said the failure to do so would be discrimination on remand then what we were trying was the interactive process so it sent i understand what you said mean it might mean rather that if there's a failure to engage in the interactive process interactive process then certain consequences flow such as burden of production and so on i don't need that if there was no interactive process you when end of story i don't mean necessarily i'm not here to argue the that question yeah i mean the issue for me is regardless we're entitled to the instruction and we're entitled the instruction because it's the central issue in the case i do think you're entitled to the instruction for the jury to determine whether or not mr snap's letter in fact was a request for an interactive process to determine accommodation and you didn't get it correct and my question is what's the consequence of not getting it now and then in our view the that that instruction is important not only because it's a central issue in the case but because under barnett a jury is entitle to infer that the failure to initiate the process is evidence that the employer is protecting or shielding or not disclosing possible accommodations that goes to the  central finding in the case leading to liability we were deprived of the benefit of proof that burlington morton or their breached the duty by failing to have the instruction given to the jury i also believe that in the absence of the instruction the instructions the jury the court gives become misleading because what the court told the jury is plaintiff must prove that plaintiff notified the employer of his desire for accommodation and second plaintiff must prove that the employer could have reasonably accommodated plaintiff in the essential functions of a position now let me ask you something this case would have been made a little easier if there had been some special iraq and tories because if if if the jury had found that you didn't prove the very first element that there was a notification then you don't even have to get to the interactive process right but but as i understand there were think in this whole case is whether that letter even puts the the company on notice that he wanted an accommodation no that they should be start the interactive process i disagree with the factual underpinning of the question but in answer to the direct question i honestly don't recall whether either party asked for special iraq or tories us for instruction but not for special verdict i don't recall if there was a request for a special burden on the question i asked for instructions and i objected to the failure when struck and defense counsel also asked for an instruction on the interactive process in part because both parties asked for the instruction we argue it very strongly opening closing and they agreed that that was done and were very surprised when the court declined to instruct on the topic let me ask you this because it puzzles me actually that the district judge didn't give the instruction how strong was the objection when the district judge didn't give the instruction very strong but very strong and was what was the judge's response not my recollection actually i just read that yesterday the judge's response was in this case i'm not going to do anything but the model and instructions that said and and that literally was his response i my inference is that the judge had seen this case reversed once maybe he didn't see a clear what he should do on the on the interactive process and so decided that he was going to take the safest route that that's what i'm reading into it ok i think one of the problems is the instruction you asked for basically said if you did if if the company didn't engage in the interactive process and there had been a request for them to do so i went angry and but i mean that is sort of what your instruction says what you think assuming the he had instructed on the interactive process and assuming the jury had found that you had made a request and that the company had not engaged in it so what's the next step what happens at that point well that leads to the issue of morton and the burden of proof i don't believe that we asked the court for an instruction saying if you find they didn't engage in the interactive process and there's a request plaintiff wins rather what we said is ok i got it right ok so excuse me are you are one thirty two and one thirty eight or are two instructions one thirty two is the interactive process one thirty eight is the affirmative defense what you what you ended by saying if plain approves defendant failed to initiate the interactive process or to participate in good faith your verdict should be for the plaintiff and then you have a bracket which you say should be given but i guess you give the district judge at least an option but basically the way you would want the instruction read was the verdict should be for the plaintiff i don't i don't think the the word basically is fair i mean we raised an objection that they hadn't pleaded an affirmative defense we said this is an affirmative defense if you're going to let them do that foot spite of the fact that it's not pleaded here's the appropriate language but they did defense essentially would be that you know they have to prove that no accommodation is possible and that's what morton says you know as i read that bracket the defense there right you can insert the defense there are you can give a separate instruction which is one thirty eight and it says defendant is not liable for a breach of a duty to provide reasonable accommodation if the defendant proves no reasonable accommodation of know so when a request a reasonable accommodation has an obligation to engage an interactive process so in a way the district judge was invited by both sides to instruct the jury that something happens when an interactive process is requested definitely and that is that that as i read the instructions actually given that's nowhere in the actual instructions correct i mean that's my problem with the  case let me take a moment because i do want to talk about the issue of the motion for judgment as a matter of law motion for partial summary judgment and the question judge malloy asked about whether that first letter was a  request for accommodation the court characterized as a hotly disputed issue i believe we're entitled to and we're entitle to judgment as a matter of law on that issue they look at the letter and say that the of the person who received a letter the first letter ms emory for the proposition that she didn't understand it was a request for accommodation i believe that if you actually look at the quoted testimony she admits that it's a request for accommodation and here's the testimony that they cite in the supplemental excerpt of record at three thirty four the significance of the testimony as she admits it's a request for accommodation but she thought the insurance company should deal with the request in our view you know the plaintiff isn't required to go through some process that's not set out there folks are supposed to recognize you know when somebody is asking to return to work u answer so this is part of the contract with cigna this is mrs emery testifying they provide not only disability benefits but also an opportunity for rehabilitation when it is appropriate and or making accommodations that they will pay for the company th employs the individual so the individual can come back to work that's what she understood the letter to be asking did you respond to the request i did i asked mr snapp to context make it cigna because this is a provision of the contract with  part of the her contract so it's multiple benefits it's the disability it's the rehabilitation and it is the reasonable accommodation later on cross exam up in front of with me she admitted the same thing she understood it was a request for reasonable accommodation she just wasn't trained to do this in your view she didn't understand what reasonable accommodation mandan who is required to provide the accommodation yes and that's not playing that's your view of the case it is it is court held that there were genuine issues of material fact necessary to have a full trial on the merits we did have that trial mr stanton is now appealing the jury verdict and he wants this court to be doing two things first he wants this court to substitute its judgment for what the jury found and second he wants this court to create a new law and new jury instructions in the circuit but the jury was not instructed to determine whether there was a request for accommodation and it wasn't and struck to what to do if it found that there was such a request and that there was no interactive process did you agree with there were instructions on whether or not there was a reasonable accommodation there was not an instruction on whether or not there was an interactive process nor was there an instruction as to whether or not they're going to request to determine whether there was a request for such a process whether the request for the interactive process and there were no instructions about the interactive process as i read more of that request or the determination whether there was such as was or to request and then if such a request had been made whether there had been such a process that history of case law about these issues good yes you'll come at me with and their reason is that there was one case came out relying on the ninth circuit barnett case after that the u s supreme court decided us or ways otoh case which doesn't entire and now assists about this line of cases and what the burden of proof is and it holds that the plaintiffs does have the burden of proof at trial based on these line of cases and how the cases went the district of hawaii court case did is that it analyzed those cases that you mentioned the martin case it said that in martin the only commentary was in dicta it analyze the u s supreme court decision and u s airways versus barnett analyze the ducie curry so it just lays out the analysis that already exists it's not telling the courts or the ninth circuit what to do it's simply walking through the steps and beyond that it analyze what every other circuit has done as well and there is not a single circuit that finds that the burden of truth burden of proof at trial is on the defendant to prove whether or not a reasonable accommodation exists so what is the penalty so to speak or consequences of an employer who fails to engage in the interactive process or after being requested to provide a reasonable accommodation isn't anything beyond they're going to have a tough time winning a summary judgment but certainly if that they're going to have a very tough time winning summary judgment and beyond that the ninth circuit does not recognize an independent cause of action for the interactive process i think how it was done in this case made a lot of sense the plaintiffs got to argue the interactive process got to talk about it to the jury did so at length but there was no confusing instruction to the jury stating what is inaccurate which is that the independent or the interactive process is an independent cause of action because that's not the law in our district and even if there was an instruction on the interactive process it doesn't matter because there still needs to be a reasonable accommodation that exists and that was not the case here to the point to put on any evidence  a leave of absence for an indefinite period of time he had requested ninety days but there was no return to work given by his doctor the second was because he applied for a job which he had no seniority for and knew he had no seniority for that the f should have just reassigned him to some other job of its choosing also a trial he said there were many jobs i could have applied for and could have looked at on the website but the testimony is he never once went to the website never once made a single application for any other job now underlying all of this is that he did not have a release to return to work in any capacity his own doctor did not release him to return to work well i don't think the a p a requires that a person apply for a job on a website i think the eighty requires a jew engage in a process where there were between the two of you come up with some jobs that are that he is qualified to do with or without accommodation he doesn't have to apply through an application process i agree he doesn't have there is not one way one thing he has to do but he has to do something he what instead what happened was that for years and years and years his communication with s f was only about reinstating his long term disability benefits those were cancelled because he did not undertake the sleep study as required by cigna and so when those were cancelled in two thousand and five he still communicated with  f only about reinstatement of benefits not even once about trying to get a job in any capacity it was only when b n s f learned that the benefits had been terminated two years later it gave him another sixty days at this point there was an obligation on both parties to participate in some sort of interactive process the n s f sent an initial letter to mr snap mr snap responded with a very dense ten page letter in response that was unclear policies and just to clarify what ms emily's testimony was because it wasn't fully stated previously what was your understanding of what mr snapp was asking for in this letter to you she answers the primary quest was again reinstatement of his disability benefits wanting to have a response to the november letter and wanting to better understand where b n s f stood in trying to assist him she understood that this was all part of the disability benefit reinstatement another question so you're saying in here when he says benefits rehabilitation the reasonable accommodation those things are all done by cigna right that's part of the contract with cigna is that in the contract with cigna yes it is she understood this was all about disability benefit reinstatement from this point she did respond said you can talk to your h r representative you can go to the website you have options for you and instead what mr snapp did was he called up a yard said do i have seniority for this job they said no the union said that he did not have seniority as of one nine hundred eighty two he still sent a letter to be n s f just a couple days before the end of the sixty day period ended and applied for one job and one job only which was a job he knew he couldn't have after that in that same letter he says simultaneously i want to request another leave of absence he requested ninety days in the letter but his doctor's note didn't release him for work at any date and her testimony at trial was that this letter was not intended to be released to work in any capacity and since then there was no release put forth this is not mr snap up holding his and of what is supposed to be an interactive process so no there's not a specific you know step that he must do we understand plaintiff's can have you know expressed something but this in fact shows the opposite his actions show that he in fact  did not want to be working and a reasonable jury could find that when we're looking at this motion for judgment as a matter of law this is you have to take everything in b n s f favor you have to look at what a reasonable jury could or could not find based on the evidence and it can look at all of the evidence in front of it the letters the testimony and can make its own determinations and based on those things it could have determined first that no reasonable accommodation existed because he couldn't work in any way in any capacity it also could have determined that mr snap was the one responsible for breaking down the interactive process and it could have determined that mr snap failed to request a reasonable accommodation the ninth circuit said that february twenty eighth letter in which he attempted to market for the job he didn't have there was a dispute over what that really meant the jury got to make that decision now any one of those three things means that mr snaps appeal on his motion for partial summary judgment on his motion for joy as a matter of law fails and this court should be affirming what the district or what the jury found in the district court if you don't mind i'd like to go back to mor let's assume an understand you contested let's assume that the morton footnotes accurately states the law of the ninth circuit and that despite the extensive and very careful analysis  in the on a moral case actually that footnote does state the law if that is so was there a problem with the jury instructions in failing to instruct the jury number one that it had to find whether there was a request for accommodation and number two that there was a failure to engage in the interactive process there wasn't a problem even if you accept that as true and here's why ok even if you talked about the interactive process that does not eliminate the need for reasonable accommodation to exist now even if you say the defendant has the burden of proving a reasonable accommodation the burden of proof there is no i'm sorry thank you the defendant has the burden of proving there is no reasonable accommodation that exists that happened here so even if you are analyzing this under more if you are i'm not sure that really happened here i understand i understand what you're saying about have any release to work in any capacity so there is no job he could have done at that moment in time with or without any reasonable accommodation the second is the only other possible option is a leave of absence a leave of absence for an indefinite period is not a reasonable accommodation especially after he had been on a leave of absence for nine years and the darkie curry case talks about this it talks about recovery time of an  specified duration may not be a reasonable accommodation especially where he doesn't state when and under what conditions he could return to work there's also the bison v united natural foods case which you know believes presidential but is persuasive talking a indefinite but at least a six month long leave of absence is not a reasonable accommodation here we have had a nine year long leave of absence being the stuff kept him on as an employee helped him with his signet benefits getting them reinstated time and time that the letter that mr snapp said that he could he would be capable of performing light duty work once further treatment had been optimized but his doctors testimony in her deposition which was used at trial is that this was not in any way intended to be a rel work in any form her prior letter about this i believe the year prior had said that he was permanently disabled that he had no intention of ever being able to be fully to recover to come back to work so if you take her  set date that he could potentially return to work in the future and no intention of releasing him the dr no intention of releasing him to work at that time means there is no accommodation that would have been possible and again if you're looking at this you know through the lens of what the jury got to see they got to see all of the evidence they got to weigh this evidence and that's what the ninth circuit asked it to do the first time we were on appeal and that's what the jury did and looking at all this evidence found that mr snapp could not prove his claims for disability discrimination in this case just to wrap up really quickly your honors the district court properly instructed the jury based on ninth circuit law and made no errors in doing so to the extent that i heard some rumblings you might disagree any errors certainly were harmless in this case furthermore mr snapp cannot and did not meet his high burden of proving that the district court should have granted his motion for judgment as a matter of law and that's why we request that this court affirm the judgment entered in this case thank you very much you know i just just record he never sued the insurance company over disability as i understand it or not not to my knowledge i believe he made some wrote some letters to various departments but i don't believe there was a lot to thank you ok thank you like to make a cup of points in rebuttal number one with respect to whether there was whether the employer proved that snap could not be reasonably accommodated i want to point out i want to correct counsel's statement that there was not a release in the record there were it's evidence from two doctors one was dr hertzberg this is the individual who actually did make a really issue a release for snap to return to work to perform moderate work activity that's why cigna turned him down because they had a release that was submitted to trial number two with respect to the sleep doctor from the v a who is testimony was entered into trial the sleep doctor believed that mr snapp was an engineer she didn't realize that he wasn't an engineer a lot of her testimony and her documents the context for them was you know an engineer with sleep apnea isn't going to work evidence of jobs he could have done mr fresh hour their human resources person admitted that being me in s f had positions that were very viable for mr snapp that was his testimony at trial he mentioned customer service marketing human resources they also had a light duty and transitional work that's number one would talk briefly about morton martin is significant not only for the footnote but it is the only case you will find that that is in a virtually identical position to this case in morton it was determined as a fact that the employer had not engaged in the interactive process so the context for the decision is what happens if there is a finding that there isn't in the interactive process and that's the issue in this case it's distinguishable from all the rest of the cases the defense raises  finally i want to close with a quote from the transcript of four fifty eight which is the testimony of misandry regarding the issue of the motion for partial summary judgment and motion for judgment of as a matter of law question i didn't ask you that my question is you understand that mr snapp was asking for additional rehabilitation benefits and being allowed to return under disability with reasonable accommodation correct answer from miss emory i will agree if you also include that it has in here accommodations of which the employer can be reimbursed by cigna for expenses if any are incurred it was her testimony she understood it was a request for reasonable accommodation we were entitled to a judgment as a