temperature for the appellate discounters high rise to challenge the district courts the germination and hopefully to reverse that termination after her accident and there's two essential time periods as an lpn of the time of the accident the duty to accommodate would be directed towards preserving her ability to work as a no right after the accident you know that june to october two thousand and twelve period or even into thirteen you agree there was ever a period of time where she was able to return and work as a nurse absolutely  record reflects that during that period of that one year period after that accident she was signed essentially the same duties performed the same when you when you say absolutely do are you saying yes when she returned and yet she returned to work that should be allowed a period of time to raise your leg during the day a very strict limitation of her ambulatory efforts you could walk very well that action to cause the and the only thing she really couldn't do was lift people up or satisfy the physical requirements nurse bailey her supervisor said yeah she continued to work we tried to work with her and that's not going to meet the point is whether she can is qualified to perform the essential functions of her job not not whether screening all these people walk around almost like little a bizarre and she continued to do that the problem became that she had to continue to watch extensive periods and stanfor let me let me tell you what's really confusing me is when i took your brief to be sane in the june to october two thousand and twelve time period that she she was walking around she was doing all this other stuff and that actually led to aggravated injury she hurt her leg somehow there was a rod did broke or there was a rod problem in her leg and i write about that absolutely correct ok so what i don't understand is how can we say that on the one hand and then on the other hand turn right around and say oh she was perfectly qualified to work as a nurse she was an lpn in a specific but area but the nurse the nurse job right is required all this walking all the standing all this movement it's a busy shop you know it cetera et cetera so i don't know how on the one hand you can say they're requiring her or her walking all around led to a broken leg but then in the next breath say oh but she was totally qualified to work as a nurse it seems like it odds with itself during this period when she was returned back to work  work by a physician with prescriptions and those restrictions were clear as i indicated before however as this month the month period when i think she was submitted no less than two dozen letters from physician saying this isn't working you've got it she's not being allowed to raise her leg appropriately as a result of some of this work and walking she's now having to have multiple surgeries to fix the same areas and that's what i'm that's right i mean i'm going to stop and you continue but that's all right when you say that that's what i think well that that's all right she turned in twenty six doctors notes yes ok those those very notes in what you're talking about the need to the form of extended leave our medical leave from other employees find when if we get home that's a different argument if that's that argument is that argument would go like this she's not able because of this tragic accident to work as a nurse between june in october two thousand and twelve her physical injuries are too severe and they're too limiting so her ploy or the argument would continue was under a legal obligation to identify a different job one that did not require walking standing etc correct is that the argument you're making certainly there's two periods it it makes no sense to allow somebody to go to work and to come back with twenty six medical reports say i need to change this it's not working i can't physically because of my language or you do what i did before at that point in fact a rehabilitation exit that's the beginning of the book but if the claim is of the nd type that judge scott was referring to that i was not qualified to perform the nurse's job but i am qualified to do some other job that's your burden to identify what other job that is and that there was a vacancy that she could fill and you didn't do that well i think we did but would be punished by the bay or the fact  regarding getting something going in the way of dealing with her post accident period out at that point in time as i indicated there's numerous medical reports coming in there's bailey her supervisor testified that i received these reports but i didn't consider them and consider them real reasonable accommodation requests because they weren't on forms that the v a usually uses she said further in her deposition you know i now know that they were requests for accommodation i've read the policy now but at the time i didn't know twenty six of these letters go into her desk and the question becomes how does that reasonably accommodate the v a policy very clearly says that when that request that's a that's an attack on the interactive process and the interactive process is not a freestanding claim you have to demonstrate and prove that she was qualified and you've just conceded that she was not and then if it's this others form of claim where the failure to accomodate rests on a failure o to transfer her to a different position for which she was qualified then you have to identify what that was and that there was a vacancy and you haven't done that ok and in this case my client did in fact when he was deposed is simple did you know anything about these requests for the year long period or any of the medical records he said no i had no nothing about her condition we could not have no and nurse bailey never provided us w process argument and again a process failure can't form the basis of the claim the claim has to be failure to accommodate and that puts the burden on you to demonstrate that she was either qualified for her old position or if not that she was qualified me i think i think the answer to judge sykes this question is no that that ms conner's did not identify a specific vacancy and i'll tell you why i'm thinking that i'm thinking that because there is a point in time i think it's in the some time march april may june of thirteen not one thousand two hundred and thirteen where she's asked for a copy of her resume but that right ok and she doesn't provide one she chooses not to and she accompanies that choice with the statement to the v a the reason i'm not giving your resume is because i want to keep working as a nurse she did try to do both she tried and the best she could but she it seems to me and i mean it's an and it's a terribly unfortunate whole the whole thing here is unfortunate it is ok but when she's asked for her resume she had to have known that the point of asking for her resume was to see if there was some other job that she was qualified to perform in light of these medical challenges that she was facing it would seem your i mean white what's the point of it it would seem that the resume is that it's a funny question she worked there for five years or opiate flat was there every piece but now it now h r is going to get involved right here to make absolutely a charge should have been filed but they they didn't you're suggesting that they needed  this case is why why it's not clear on day one june th if i'm not mistaken two thousand and twelve she returns to work she she suffered a horrific auto act a terrible accident she's in bad shape it should have been as clear as day to everybody on june th or june th that miss connors can no longer work as a nurse unfortunately her injuries her physical could it is way too severe what went on between june and october a  at level that that's the part of this case that is just you know you did it it's troubling to me what the world's going on part of what's going on your honor is the fact is that she's is is trying to accommodate her in what she understands is an accommodation right and that's what that's precisely what troubles me because nurse bailey is just that a nurse right so why don't why don't these twenty six notes or even one of them make their way to the folks at level that shoulder responsibility for trying to accommodate people that are no longer able to perform their jobs in your brief you fast forward us to march right right i want to rewind us ok i don't have an answer to that i can make assumptions judge based on our i don't i mean i don't i know you don't want to hear assumptions but i don't have the answer to that but he i want to i mean what may save you here ok is there's no argument that's focused on that for a five month time period i don't know why there's not but there's not i think the flipside of that is that these and that goes to the reasonable accommodation and that requires the interactive process is the process argument interactive process is just part of that analysis and it's fact it's not even written with the provisions so that she has to she has to she has to show that she's qualified with an accommodation and she's not qualified there's no accommodation that would qualify or understanding that the nurse manager bailey actually not hide her the duties of the position made alterations in on a sort of take facto effort to try to accommodate her even though she didn't understand all the legal requirements and i think that's what gets to the heart of it too she was trying to be a nice person she was trying to help her out they didn't know how long this is last that's a lot of the didn't they so they had the information they had these periodic doctors notes they had some of the information but they didn't have a full so that the notice in terms of how was this is going to be permanent you know what kind of effect so she could have again this is an assumption now i know and i actually read the record exactly like just like studds i think i think nurse bailey bent over backwards and was going to extraordinary lengths to try to do what she could but i think just based upon the position she was in and trying to be a decent colleague and that's correct but i think at a certain point she couldn't cover  was this this correspondence went to the plane to to ask what is it that you need like to try to have you know that's in that march or typewriter and the problem with that too is and again she's on and off  work so there's always going to be that issue in this case is that how easy it is is it for the for the the management to reach or and that's something that is unfortunate as is your honor as you pointed out but that it makes it that much more difficult and that's in so far as interactive process is even an issue in that complex now when i say she is not qualified for any position at all that is wrapped into the into the accommodation argument she has to it is true that there is a it's a two way street is the process is a two way street and i think if you can identify one of the breakdowns and it should be noted that she  well because she wants to keep working as a nurse but even giving her the benefit giving up that's right so she didn't provide she didn't provide the resume so it's difficult to say on the other side that we have this vacant funded position that you be qualified for if you don't tell us what you're cooperate for and the issue of the v a having her resume on file from years ago is not really relevant anymore because one of the things they asked for was an  question that fair to accommodate or the failure to interact with an individual is only actionable where the plaintiff can show that that failure to interact absolutely affected and available accommodation that and i rely upon the brief faired th circuit case to the extent that the district court announce did not apply its test at all to any of the facts it didn't assess for example whether these twenty six letters and their failure to deal with them affected her ability to get accommodation the court in applying the rule