you want to kill kraft on behalf of rene greater in two thousand and eight the americans with disabilities act with amended at that time congress to acknowledge that there were forty three million americans with a physical or mental impairment they were simply kept out of the workplace for failure to accommodate this case involves two i think essential strains number one is can we see an attorney general did the louisiana attorney general would have done with one a crater who was suffering from kidney failure define after the fact essential functions to include she has to have her behind in the chair behind a desk at the attorney general's office what's striking about the essential function analysis in this case is the fact that the average show will never never have her first transplant in two thousand and ten she worked from home she continued to function as a medical malpractise attorney affected there were several downs over time as the court knows from the facts where she had rejection issues she had exposure issues  judgment made a number of credibility decisions and factual determinations favorable to the defendant not the least of which as well i believe at this point now two thousand and thirteen physical presence at the office with her behind a high desk testimony with me just to make sure and it did record six sixty seven to sixty seventy three i believe is the whole sign ok so what can you go over all the evidence that you think you've got your client's testimony pain but there's an issue about whether that's enough so what is the other evidence the everette other evidence as it relates to her specifically is her doctor's documentation and as the court will call one of the one of the big problems i know i'm sorry my question the office is that right there is a presence of us or who said that his only concern david sanders was that he thought yes you can do everything you need to do as a lawyer from home but we have this need for collegiality and so folks need to be in the office to bounce ideas off of each other that was essentially his testimony there was also testimony as it relates to one of the secretaries in the medical malpractise division within settle who also was similarly accommodated the question in my opinion for the purposes of this discussion is as you described judge graves is an accommodation something that is only designed to be temporary in this particular circumstance we're in a crater had no problems she did her job by all accounts and including judge all right all of her supervisors she did her job she was never written other she had no issues then all the sudden she's got another recurring issue secondary to this kidney transplant now all the sudden in two thousand and thirteen everything that has happened for the last several years this somehow we can't do it anymore you allowed a disabled boy or it's a vision to work from home in georgia simply because his wife was in medical school but you can't allow a disabled lawyer in your own backyard to do the same work and that gets me back to going to what i'm talking about for a limited period of time you could accommodate somebody but you could make a determination that about the definition of essential function and don't we have to give some deference to the employers view of what an essential function needs and i guess that's one of my questions and so let me just pack them all in and then the other one is  in terms of the definition of an essential function is that your be that they offered no explanation or definition of essential function and the fact that it required presence in that office until after miscreate needed some accommodation yes that is exactly our position because they did it before and they continued to do it and then we have a new supervisor in this mallette as you know from the court jurisprudence you have that intervening supervisor who comes in and make no bones about it in fact when i asked her about his or some sort of policy about working from home this is in record six seventy one i'm looking for any policies as my question or you know whether they're formal meaning in writing informal verbal understanding i'm looking to find out if there are any parameters that's about working from home now what she says i don't know that there's a policy that specifies that the problem in this case from the credibility standpoint on summary judgment is the fact that there is no such written understanding nobody's freeman renee has to be physically present in the office and the n t s b our team that she didn't know they did not in fact when i asked the human resource director is there some sort of job description no they relied entirely on their testimony she needs to be physically present in the office in new supervisor bring home the guy from georgia no but she was not his supervisor she  said when that occurred between two thousand and ten and two thousand and eleven she was not his supervisor she was in the civil division she had some awareness of the could she was not a supervisor and frankly as many times as i've asked questions in this litigation about that  triggers on whether or not she was a qualified individual with a disability the retaliation claims however do not you know at the retaliation it's my understanding that you have brought not an athame like claim but that you're and what's the effect of back she lost her health insurance this is a kidney transplant person who's got rejection issues and now no health insurance in addition to that we have in the record the evidence of the fact they're sending her all contacting me giving you friends to do so then the a g s office comes in and says we need to go back for several months and fill out they really time to tell us what she did every day she says i can't i worked for sure but i can't and i can't because i sure don't want to be wrong and then came a big hullabaloo with threats of if you don't fill out the sheets you can't come back to work if you don't turn a driver's license you can't come back to you can't have health insurance never let you back if you come back we who said i need you to do this on this about this guy thing but honestly jejomar that undercuts the commitment that this woman had to that job that job was her life period and it doesn't require did she come in and say ok let me submit daily because she's not claiming the money she's just saying that's just another example of the treatment yes ok and she made it clear to them including emails and follow up complaints about it to human resources but i don't want to sign th if i do i'm concerned about some sort of payroll for our ok that's the scrutiny under which she operates can you point us to some authority i think there's a kind of a commonsense bew that most people have that says well you can do something temporarily but you don't have to do it it's you being generous by letting somebody do something at all do something different but you don't mean to set a precedent that you're going to be doing that for everybody all the time fire district court dismiss is one of them and the proper onus shouldn't necessarily be placed entirely on the disabled employee with this court said and the employer has an obligation with knows or has reason to believe that somebody disabled accommodation might be needed to begin the interactive process that's why in the a b a i think that mindset is yes they can come in and say it's bad it's terrible it's awful but it's their obligation to prove it by preponderance in the statute when it defines thank you repair and i am here on behalf of the state of louisiana through the office of the louisiana attorney general and i'd be happy to start wherever you like you do you agree that your client bears the burden selling that the accommodation has become an undue burden of law and if not why not i don't agree with that your honor and i think that if you look at the very beginning of this accommodation which was done in a written strategy memo in october of two thousand and thirteen in that strategy memo laid out the nature of the accommodation and what the intended go accommodation was and when you look at that strategy memo it specifically says that we're allowing you this accommodation to work from home to give you an opportunity to integrate yourself back into the workplace that's what strategy memo said in october of two thousand and thirteen that was the goal all along so that it was never intended from the very beginning to be it was never granted is any kind of a permanent the comedies like they regard less of whether or not you a grain of it has a permanent accommodation the question is why isn't she entitled to that accommodation barring your ability to show an undue burden well because it workplace attendances is an essential function at the attorney general's office of somebody and doing litigation it always has and that was recognized as part of the strategy memo we're going to allow you some leeway here to get yourself back into the office but that's an essential function of what of what you need to do in order order to to do the job of a litigation attorney in a medical malpractise what evidence in the record tells us that if workplace attendance an essential function and always has been a she just said collect evidence in the record tells us that you're on a first of all that i agree that there is no written policy which laid out the specific requirement that they have the regular tenants in the workplace but the the words of the as is case law says the words of the attorney general's office all the way through have been it's something that you need to be in the workplace  memo but it does say that the purpose of the cop accommodation is to integrate you back into the office said ok what else what other evidence in this record says that it's an essential function where that detail had taken that it's all right if you if you look at the at the overall facts of the circumstances which took place in this case first of all look at the nature of the job the need to she was required as part of her job to be and she testified to that she  she had she if she had a supervisor who supervised who supervised her work and uses not only officer on understand that but the ability her claim is i can't come into the office because of my kidney in my community issues and therefore i can't be in the office and all can't be around people it's undisputed ins in the record she had a closed office that she could come into and close the door she didn't have to be exposed to people who leave entire day  anything like that yet she wants to fly to oregon and go take a deposition fire on a plane on a commercial plane and go take depositions for four days in oregon and and then fly you know around people in fly back ok i want to finish this up is there evidence in the record is the evidence that the other employee was allowed to do this for a year contrary evidence in the record your honor i do not believe that there is contrary evidence number one is when she talked about bill bell so the only evidence in there is a plain statement that bill bell some work work out of the office of work away from o the her the supervisor who was involved in this case said she was familiar with mr belcher but did not know circumstances did not supervising and did not have it in knowledge of whether he was a comparative whether he did the same kind of work or any of that stuff and she produced no evidence of anybody who testified as to what mr bel job was and what he did and whether he was compared or and whether he was in fact out for what period of time other than her testimony by the plaintiff herself which said he was out of the understand he was out of the office but there is no but i work regularly in the office i do not work from home in lieu of working in the office and you know that there's a big distinction there and the other people that she points out are not people who work in from home in lieu of i don't agree with that you're on a because even if if we went beyond the essential function issue if we act like we're tired of the summary judgment on the issue of whether or not we granted a reasonable accommodation or not if you look at this look at the history of where this this case went from from from start to finish you see accommodations over and over again one of the things that council is talking about is this f m l a and that we did not  related when in fact the only testimony in the record from the from the human resources person is that she was granted f e m a l a doing that period extended period of time that that she was off even though she didn't  qualify because she had worked enough hours in the preceding year but they gave it to her anyway and that's their record shows it was taken away from her that it was really that the time off without pay was originally classified is that in the lane that we categorize i know you're on i several months until august twenty second of two thousand and fourteen when she came they were given her assignments while she was on leave with them knows he has e mails from her supervisor saying do this work nobody has testified that th will correct them if they're not right correct them and for months and months and months she didn't she refused to do that and she didn't say i'm not good i can't do because i can't remember it she kept saying i will do language and giving in sometimes cert as part of the records that are kept within the attorney general's office which are given to the legislative auditor there were acquired to to fill out the surf occasion that says i was either worked or was on approved leave during the period of doing this pay period and that that's all a day after to do i was either work or was on approved leave that's what the certification asked for and that's all she was asked to sign as part of that certification one troubling aspect of this case is that whenever she was came back part time she was forbidden from working at home during that time perhaps doesn't say but i don't know and they say it may say not at home but but that was the idea to reintegrate and also to to reassign some look at caseload from of that she was not able to keep up with when are you allowed to do t keep up with the caseload perhaps if she'd been allowed to work at home the other if she's got to be in the office three or four hours a day why are you forbidding her from working at home during the other part what it did was it accomplished your player goal she's allowed three to four hours a day if she could tolerate if she could only come one hour a day and we were willing to accept her to come one hour one hour a day for as long as she came to the office to work it was three four hours a day a understanding of that is to say we're going to pay you for the three or four hours that you come into the office you are not going to be paid from any work you do from home but i don't know how anyone could direct to me not to work from home and then police whether or not i do it so i would never understand that statement to mean that my employer is somehow forbidding me from looking for looking at any work at home reading any work at home but you can say to me any time sheets or any submissions that are made from you for any hours that you claim to have worked at home you're not going to be credited for that and you're not going to be paid for it so monday standing up not to work from home not for her not to continue the process that has not been working for five months and to add to move to this other companies and to allow her to reintegrate back into the office you know that that that's the refer you to from the  him the case because they didn't know she would be met meant to clear to be able to go and try the case and she was failing to do the routine administrative tasks things like these time sheets didn't it didn't start in two thousand and zero for significant amounts of time rather than billing to particular files and one of the problems with that in this group testified that that was achieved to take that picture she was using that administrative time because she's got to have these telephone meetings with her paralegals and her purse her secretary so forth to get up to speed on what's going on in the it you know in her case is it was going on in the office and to you know assigned task to do all these kind of things and all this is being done have a performance problem and you've worked on it for four it's like a year try to give them some counseling and so you do this for a performance problem and it's it's it expels out specifically and testimony that they have been used before i don't know if in those cases that they were used before the person was fired but i mean is that the kind of way you use them right now before you're going to fire somebody tell them what their deficiencies are and try to cancel them to remedy them when the you understand it well it would be correct in the end in that you know the whole point of this was to point out these problems and they were couple really significant problems particularly in some insubordinate communications e mails about but you refused to sign and she said that there were some things in there that were were incorrect yet she never provided any information or anything to fish to tell us what she believed was incorrect within the agreed you not agreeing that a lancet what louisiana cones and i guess i like it is pretty candid a last chance agreement this is your last chance other states call them performance improvement planes but you're not a that when you say to a government worker these are the things you need to improve on and if you don't then there could be disciplinary action taken against you united saying that that's just a euphemism for letting them down easy lego she was not let go in fact she continued to work even have to miss another five months of work he came back on august twenty second full time employee completely medically cleared and worked until december thirty first of two thousand fourteen when she voluntarily resigned she she was she was never there was never really any disciplinary action at all tak him down to eighteen seconds or anything else your honor thank you a lot of time but to answer your question with respect to the last chance agreement and footnote thirty six in my brain not only reference it but also the record on appeal numbers and this is what it says in the last chance agreement it's not some sort of do you need to pick up the trash or else you're going to be in trouble it says where they must quote work up to three to four hours per day in office in pretty's as tolerated and not work from home she was also required in the last chance agreement to have a date at least five person  pay you for working do from home i don't know how they could police whether or not you actually work from well a kind of with you but isn't that your complaint that they forbid her yes from working at home and that's what they said in that document the last chance quote not four hours a day but she needs to continue to work from home that then gets translated in saunemin lexmark into you can only work at the office that's the october two thousand and thirteen and well i asked song in a lette in her deposition what she meant by that what are you talking about and what she basically says it's all you know dr sleepy didn't here's this no well that's what we were going to do we didn't believe she was interpreting herself back into the workplace so she was only going to be allowed to work in the office i agree council on this whole and you know when i was by this woman on this whole essential function definition i mean the fact is i don't have a policy in my chambers it's written in advance you need to show up for work are kind of get really upset if people don't but my point is isn't it kind of an assumption that i need to come into the office if i hire you at the attorney general's office and the reason hannah isn't it just kind of common knowledge that i expect my employees to come into the office we have this building in these spaces and some cheers and isn't it so to say that very kind of post hoc developed the thing to function definition and description i mean it would likely be the case for a lot of employers wouldn't  except that that's a question of fact in this particular circumstance as the statute says we're going to confer to employers written job description posted before hiring or interviewing in this particular just concerning that they don't have a week job description and at the why don't really remember but we do have in the record at our zero eight six sixty seven can you tell me whether or not the attorney general's office has any policy regarding working from home for attorneys lead question for you aware of another employee in the civil division whose wife was in medical school and was given a placement somewhere else and he was allowed to work for mom in another state the answer unaware that there was a situation question who was certainly ok for some non disabled guy to go hang out in georgia and work but all the sudden we get a new supervisor and it's not ok for her that's not what the a b a was designed to do when you look at the statute in terms of