good morning your honor may it please the court sidney tribe here on behalf of the appellant homesh county public utility district we're asking this court to reverse the district court's judgment finding that the p u d violated the washington law against for testing and she tested positive and then she was fired because part of the process of determining whether or not she was impaired was having the testing that was that rather than say so you just wrap that in that's a subset yes rather than simply relying on the in making its decision first of all in determining that the termination was in fact discriminatory and that her medical condition was a substantial factor in her terminations and second that the p d failed to reasonably accommodate her by offering her leave both paid and unpaid under the work rules that would allow her to refrain from coming to work impaired the  terminations was not discriminatory because coming to work impaired was the conduct that she engaged in for which she was terminated she was not terminated because she had migraines or because she took narcotics in order to treat those migraines it was the conduct of coming to work impaired in violation of work rules that led to her terminations and was the so called sounds good but the big question that the district court had to answer was were the signs of impairment a part of the disability the signs of impairment the district court did find that the signs of impairment were part of the disability  district court decided based on the russian to the revenue code forty nine sixty or four zero seven a and other parts relating to disability and impairment that he had to determine whether the signs of the impairment were part of the disability and counsel is that a fact question that yes that would be a fact weston  the signs of impairment in this particular situation were a part of the part of the disability and frankly i don't see any thing that would suggest that there's no evidence to suggest that however the court does not have to rule on that issue or reversed the trial court's decision on that issue in order to find that her terminations was not discriminatory again but just a minute if it's a part of the disability and she was terminated because she had an impairment and those signs were there then at that point it is discriminatory no because she was not terminated for the state of being impaired or for acting impaired she was terminated because she failed to follow the work rules that said if you are impaired do not come to work you don't have to find it would just a minute she is not impaired if she if what area impairment is a part of her disability then she's not impaired she is disabled and your terminate here for the very disablement you have no not terminating her for the disability chairman you are because you terminated or for coming to work you're saying she was impaired and the district court finds that the impairment is a part of the disability she was not terminated for being impaired or from conducting herself as an impaired person as and i think a way of explaining this  of impairment you said is the positive test result that seems to be baked in to your analysis of impairment she can't come to work without that right she's going to according to this expert testimony according to the judge positive right yes that's correct because of her disability yes but how do we x how do we remove that from your definition of impairment the impairment is whether or not she is perceptibly impaired and acting impaired she might come to work and act completely normally if she were drug tested which she wouldn't be because she'd be acting normally and not acting impaired with slurred speech etc then she would she might have a positive drug test but she wouldn't be impaired but the judge's finding of fact is that she wasn't test she wasn't terminated for that reason she was terminated for testing positive the finding of fact and its finding of fact seventy six was that she was terminated for violating the work rules but that there's that there is actually another finding of fact that i can i put my finger on it here in a minute but it says on the washing family medical leave act claim that she was sent for there the frustrated with her for taking leave but they sent her protesting because they thought she was impaired she was fired for testing positive that's what the judge said but that's not what the that's what the factual record showed she tested positive so far forgive me but yes to the stand a review which be very mindful of because we have to decide that this finding of fact is incorrect about why she was fired yes and there's no substantial evidence to suggest that she was fired for testing positive she was fired because she came to work impaired they tested posit that tested her known she was impaired and center for the drug test no they didn't know she was impaired just a minute they suggest she's impaired but if she's impaired she's disabled the way they knew or the way they supposedly knew she's impaired is because they center for the drug test that's why i think we have to look about whether the impairment was a part of the disability if the impairment is a part of the disability then at that point you cannot fire someone for being impaired that's part of the disability the taking of the drugs the taking of whatever you got to do in order to come to work the effect there of on you as long as they are on you you can't fire them for because it's a part of the disability and that's what the district court said the dischord said there is no part of what she did here what should not a part of the disability and therefore you fired there for any type of employment which impairment when it relates to this disability is a part of it and you can't fire if this court wants to rule at that as a matter of law oh i'm not i i'm saying that's what the district court said how can i overturn it i have to give deference yes but as i said this court can conclude based on the all of the findings including the findings that she was impaired and the uncontested findings that there was a work work rule prohibiting employees from coming to work impaired that the firing was not for the impairment the entire firing was for coming to work is there any evidence that shows  this positive test result so let's set that aside for a minute now you're talking about the conduct or her manner affectation if i can use that shorthand violated the work policy and let me clarify your honor  the testing positive is not a sign of impairment the testing positive is a confirmation that she was in fact impaired by drugs ask your position that's really tough for you because the expert that she called and the judge makes findings about anybody who had ever tested positive in a random drug test doesn't mention her disability the judge the district court was certainly concerned about that well and that seems quite inconsistent with the notion that she was accommodating the first notice that the p d had that she pursuant to your work rules to let you know that she was going to be taking that medication washee was employed it's certainly part of the it would have been helpful to the interactive process if they did have your rule are you claiming that she broke the rule by not telling you no ok the question the question is whether or not the p u d accommodated her and whether it it engaged with her once it had notice whether it engaged her in a way that accommodated the disability and the judge found a go ahead please or question let's move to accommodate the reasonable accommodation of this particular client a question of fact no it isn't a question of law as to whether you gave her a reasonable accommodation if i mean the case that says the law says that  have to give her reasonable accommodation yes then you have a question of fact as to whether it was reasonable yes that's correct and the judge found you did not make a reasonable accommodation do i owe deference no because there's no substantial evidence to an reasonable accommodation because she was asked to come to work as soon as possible that is not another reason what the law says is that an accommodation is reasonable if it allows the employee to keep working she was offered adequately if to allow her to keep working therefore that finding a fact is not supported by the law and is not supported by substandard arguments what about use of the f m l a it seemed to me that it was pretty and easy to use the that she was concerned that if she used her f m l a she would not be able to take an invitation companies say they said that she needed not she needed to not violate her return to work agreement and work rules by coming to work impaired both in writing and in fact as she took the leave when she needed it and the fact that the p u d actually told her look we would prefer if you did not come to work impaired we would prefer if you took her leave meant that she was not denied any of her leave under the eff m l a in fact quite the contrary she was asked to take the leave and she insisted not only that she didn't want to take the leave but that she didn't need to take the leave that she could come to work and that it wasn't a problem and that she wasn't impaired so that's why this was not a violation of the m l a and if she had to leave available then she had the reasonable accommodation and therefore there was no violation of the question i want to save a little time yes  in morning may it please the court my name is joe schieffer on behalf of cynthia stuart with here with us today i will be handling the arguments well by my colleague here katie chamberlain will be handling the cross appeal leave claims i want to start by just addressing a couple of things raised in argument just now one is that there are no facts that we need to look behind in this case facts were not appealed facts that are not challenged talk about why did he think she was terminated please because she had been perceived to have come to work compared with confirmed with the drug test results so you agree that the drug test result was part of that absolutely and i agree with that the use the drug test results to terminate her i also say that there is a finding of fact the judge very clearly found that test results were useless in determining a degree of him did he found that pretty clearly so what do we do about the fact that i  think again i'm paraphrasing but there was an agreement about it called your friend who does the recertification agreement what the terms are going to be when she came back and she signed it and it treats her as though she has no disability at all she can't test positive the problem with the return to work if you know what i'm doing things like and she agreed to it there are two things that were going on there there's the return to work agreement and then there was also the family paperwork that were going in parallel on the return to work agreement what the first thing i would say is you can't contract around the law and so you can't have an agreement that says we don't care if you have a disability if you test positive you're fired so can i just back up they were there were those two agreements were executed within a day of one another right yes originally first but then with that according to a family paper or because the four hours thing comes in in their family paperwork so with the four hour limitation that she any time that she was using a potentially impairing substance to treat her migraines that she would wait four hours before she returned it was not that she may wait that she was required to wait required wait absolutely i took you from opposing counsels argument there were times when she indicated she didn't need to wait that she was ok she thought she could return immediately and  that's what her doctor had originally said and there are several recertification to be clear after that there are so many issues here after the recertification agreement was executed and she came back at that point wasn't was the deal that she would wait for hours absolutely ok that's the way i read it too and is there a contention was there contention by her employer that she didn't do that sometimes the only thing that you can see in the record is there's a footnote in the findings of fact and conclusions of law that addresses a fifteen minute discrepancy on the second day that she was found to have been showing signs of impairment but the court found that to be in significant there's a dispute as to whether or not this fifteen minute window even mattered so there's no finding that she came to work in under five definitive in a way that you're going to work in under four hours  recertification and certainly no finding to that effect yes so as it relates to i just want to make sure because it seems to me that i have to give deference to the district court on some issues even if i don't agree that's true that there are some times and it seems to me that the determination by the district court that there were that the impairment was a part of the disability was a question of fact right that is  and i would also point out that for the first time in this litigation it's reply brief the p d has conceded that definitively at page twenty two of its reply brief it says first the p d does not dispute that the impairing effects of stewart's medication are a to take it and setting aside that they're going to have to raise the blood level to the trigger for just testing positive if you just give sure but that's actually useless but yes right right right so so for her it is anyway so so what are they supposed to do by way of how much are they have to accommodate if she's in a position where the medication after effects otherwise leave her impaired and in the sense of it's affecting her conduct or affectation let's not go there that's an interesting way to put it and i think it goes directly to what the court actually found just a court found that she showed signs of impairment and i think that's key right because then the court immediately went on both in both instances and said there was no evidence presented that she actually had a performance issue or that affected her ability to do the duties of her job that day why that's significant is signs of impairment could be for completely unknown unrelated reasons i mean somebody could have stroke symptoms and be slurring their speech that is a sign of impairment does not mean that that person is in fact impaired so i mean i think there's a very important distinction you're on to the ask the question about how much needs to be accommodated eventually it's how much of the finder of fact say that the person needs would have been to simply say four hours didn't work and so let's try six or let's try a whole day so any time you take the meds you stay home for the rest that day those would have been easy solutions and at some point if she had to take the whole day too often that she wasn't too much as it authorizes up to twelve weeks of leave in an even an intermittent circumstance so one thing i would like to turn toward is the line of cases that the defense is using regarding drug addicts and alcoholics those are completely in opposite to this case and i want to tell you very clearly why the humphrey case of this court well in one thousand  specifically that's where the same language that we've all been reviewing that the conduct resulting from a disability is considered to be part of the disability rather than a separate basis for terminations that case in a foot eighteen addresses the only exceptions to that rule and that is alcoholism and illegal drug use so that right there it carved out that it was address an e t a but then what happens is the humphrey case is adopted by the washing supreme court in real in two thousand and four with that exact phrasing the conduct related to disability is not a separate basis for the terminations and so and that of course language gets echoed in the game being the case again by this court who said now that washington has adopted humphrey and we can rely on that let me go to the the affirmative defenses yes first ferment of a defense was good faith and the judge says that's not recognized in washington right that's absolutely true and that's a question of law that is and there's no nobody nobody's even challenging that that's true standing yes the second one was a bona fide occupational qualification yes that's a question of it not it is and so what i have to do is i have to give the district court some deference as to the facts which were necessary to determine whether was a bona fide occupy a patient qualification or it wasn't th and at this point the judges said it isn't that's true what's the best facts we have to sustain that is the decision that it was not a bona fide a well i think the first question is what is it that you're suggesting is not that she has to have the she doesn't have so what is the qualifications she's not meeting and if the qualification is coming to work not impaired then yes we do not take the position that she was a lot permitted to come to work under the influence of narcotics that's never been our position but what has to happen is we have to find an accommodation that would allow her to work to continue working and not be impaired at work by taking extra leaf and would like to so then as i understood it he said the position was not sense of safety sensitive true and any impairment was temporary and therefore it couldn't have been a bona fide a qualified solidified it business necessity my understanding the judge ruled as a matter of law that cannot be a defense here that is true and it has even if it is these facts say it isn't a political here that's true and i'm to give deference on the second part that's absolutely correct and then when i get to the failure accommodate let's look at there are three failure of comedy things what are the facts suggesting the district court was correct that the use of the f m l a was the failure to come it was the accommodation it there suggesting that the use of the f m l a was an accommodation and therefore they did accommodate and they reasonably accommodated what your answer well certainly using the family is part of the accommodation process but then what happened is they had offered and given the accommodation and then they took it away so and they did not do what's required under for xeno which is an interactive process you have to go back to the drawing board of something as a work they perceive something didn't work they should have  rican sultan with the doctor which they never did re consulted with her and said how can we solve this problem what about the pressure on the use what about the pressure that should lose vacation or whatever the the pressure and especially the pressure to return to work as soon as possible was what the district court found was made the promise of unlimited leave to be illusory if the court doesn't mind i'd like to turn over to mr chamberlain katie chamberlain for mr on her cross appeal the district court made all the right factual findings in this case but then overlooked in the stuart simple medical leave violation claims in its conclusions of law for use court conclusion of law in that regard was incorrect however it skipped over the much more straightforward medical leave violations that do not require intent i'm judgment they think when you are discretion you might my counsel you mention that the address and i'm trying to make sure i understand what you say you're there's one issue that they violated the f m l a in the village by terminating your employment rather than permitting your to use additional in return to work but i didn't see that argued anyplace in front of the district court this record didn't say anything about it in his decision and frankly i'm trying to figure out why that why would then use that issue yes your honor that was in part of this case from the inception of litigation i've got the complaint in front of me it's part of the record nineteen forty three well i looked at your pretrial brief it only issues the therefore i thought that was the one we were going dark about thank you for pointing that out your honor it's the negative factor piece that you cite brief there and that was the one piece that was not overlapping between the two claims the disability claims and the medical leave claims that the failure to accommodate her disability constitute a violation of both the lady and the medically flaw claims the medical leave law the only thing that mr it had to prove to show that the p d denied her medical leave was that she was entitled to leave and that the p d failed to give it to her and that just her courts finally said that they she makes a finding on the other claim that he the she was discouraged from using it but that she was fired over here he says because she tested positive she sent she's sorry that they were a no one aide frustrated i don't think is the word annoyed frustrated with her for using leave thought she was impaired center for testing and that's why they fired  about the standard be the correct legal standard he doesn't use but for standard where to see where to could you point out the pair i'm looking at is order can you tell me what paragraph i should be looking at yes your honor it's paragraph one fifteen  something else but that there was some evidence of frustration your honour's i believe for the reason set forth in our brief that the court erred they hope that there's an easier claim here don't worry about the clock just answer this question for you because this is important sure one fifteen if you what is how does this tell me that he's using the wrong standard ok they just hear the discord found that while the record contains some evidence that the managers were frustrated with her absences it is also apparent the p d was chiefly concerned about stewart's suspected was the batchelder case out of the ninth circuit that explicitly rejected an analysis of what was the main factor in the decision and said that it cannot be a factor at all the wor in the ninth circuit's opinion so your problem is where in one fifteen says that she feels to show by a preponderance he's supposed to be looking to see whether this was any factor that's right your honor and i was also concerned that he was looking at what was the establish a causal connection between taking the leave and the obvious employment action that's right that's what the court found regarding the negative factor analysis right right and i think that he was wrong because it looks like from one fifteen he was playing achieve what was they were the chiefly concerned with but your honor we need not get there because the court found that when it became apparent that the pudi to excuse me when it became apparent to the puti that four hours may not be enough the fired stuart without considering other alternatives and this fell far short of the pujas duty to affirmatively adopt recent accommodations and alternate accommodations are not difficult to conjure and the district court finds four  each of them are leaves so although the initially went through this process of saying you're allowed to take leave for four hours when it was on notice that four hours was not enough it fired her instead of providing her additional leave of the the other alternatives as we explain our briefing one of the alternatives was supposedly to force her to stay home unpaid instead of coming to work which could also be an adverse employment action which would have landed us right in this exact same spot so whether or not that was an alternative reasonable accommodation i think there's no case law that suggests that forcing an employee to take unpaid leave is a reasonable accommodation second of all the question of whether the p d was required by law to allow her on a day to day basis to come to work assess her level of impairment and decide whether or not she was capable of working that day is not a reasonable accommodation and that is what the district court suggested that the p d should have offered the puti offered the reasonable accommodation of leave the reasonable accommodation as the district court found based on its findings of fact  was not prohibited it was allowed both in writing and in action and therefore the accommodation was offered that ends the inquiry and the district court should have ruled in the p d s favor thank you for your thank you all for your very