may please the court my name is paul burns it's my privilege to represent the appellant in this case jenelle beeler ms miller was employed as a pharmaceutical sales representative for janssen pharmaceutical company she was well employed had a successful career in october two thousand and eleven she went on short short term disability leave her treating health care provider dr van way diagnosed her to be suffering from post traumatic stress disorder and generalized anxiety disorder there's no dispute in this case that those conditions were disability under the washington logons discrimination forty nine point sixty eight point zero four zero the statutory definition of disability i'd like to make three points in my argument this morning number one and dr van ways march sixteenth two thousand and twelve letter of treatment summary and workplace accommodations was sufficient to trigger the interactive process the duty  engage in the interactive process on the in part on the part of the employer in the employer and refused to engage in that process the fact that she changed her mind a few days later while the number one your honor i don't think she did change work in six months as we noted in the briefing dr bostwick was not in any way asked to consider whether reasonable accommodations would facilitate ms billers return to work prior to that six month period and indeed i'll discuss dr bostwick report in a few minutes but it's clear from dr bos weeks report that he did not at all consider accommodations for purposes of facilitating an earlier return to work and in fact  he made a determination of when she would be fully healed or completely healed also your honor to rely exclusively on that representation by dr van way that she agreed with dr bostwick would would ignore dr van ways declaration testimony which was in the summary judgment record which stated quite clearly that although she did agree with dr bostwick that six months would allow her to return to work with no accommodations dr van ways summary judgment declaration also stated quite clearly that she believed that when she issued that  march twelfth two thousand and sixteen letter she believed that those accommodations would have facilitated a successful return to work or at least it was plausible and that's the standard to determine whether or not accommodations should have been attempted report she said pretty straightforward lay that ill or should remain off work for six more months given the various variable cognitive deficit secondary to her psychological diagnosis and just asked for the job position to be held open for six months and the subsequent letter against she was unable to return to work in any capacity and said but but she could return to work in october so it is even that there's a difference between the march letter which i guess and she could start working in may and then the subsequent letters how do we understand that difference two points here are number one as i indicated before with respect to the entire communication with dr bostwick there's simple commendations would not be of assistance there well the other point that i'd like to make your honor is that that's probably fertile ground for cross examination a trial but but to say that that conclusive conclusively establishes that she was unable to return to work ignores both dr van ways chart notes of march eighth two thousand and twelve which indicated that the target return to work date was march night it ignores the letter of  treatment summary workplace accommodations of march sixteenth two thousand and twelve and it ignores the summary judgment declaration in the record which says that it was in it was her view as of that time that with accommodation she could return to work but with respect to the interactive process those letters his subsequent letters basically said she can't return in any in any capacity so it's i've been trying to understand how the employe print summary and her summary judgment declaration but the declaration came long after said the employer wasn't aware of that when it was reading her letters so when the employer is reading the letters it basically says she can't work in any capacity but maybe an october with accommodations let's shift gears just a little bit and let me respond to your question a different way if you look at jansen had jacen is relying on a release to work form that it states that it's supplied and it wanted completed in order to facilitate the return to work that form page eighty eight of the record if you look at that form your honor that form does address the issue of temporary accommodations but it says this if temporary accommodations are necessary the projected full duty release date is and then it leaves that blank and then it lists it provides the physician with the opportunity to list restrictions and when the restrictions might end to that read that form is in the record that the jury could look at that form and the jury could determine that that form was a requirement of a full release that was that was the form that was apparently submitted to the health care providers there's no evidence in the record that that form was actually submitted to ms beeler i invite the court to look at pages eighty seven eighty eight of the record for that there's a sort of correspondence between the regroup and  beeler talking about a release to return for form but there's no indication that she was provided with that form my point is that the exchange with the triangle or exchange between the regroup and dr bostwick and dr van way contemplates a full release that's also apparent that's also apparent and dr vass week's report and i'm looking it at specifically at page four eleven of the record question eight the dr bostwick address asked this what limitations and restrictions are supported by the available i think that should be data please explain include an estimated start date and duration of any limitations in restrictions dr bostwick then outlines the restrictions that he sees are present and then he says this her limitations and restrictions will more probably than not be resolved at the conclusion of her psychological training with dr van way within a period of six months that evidence is sufficient to support a finding of fact that that the employer was looking for a full release before i would even consider attempting reasonable accommodations you can ignore that evidence in the record that evidence has to be construed in light for most favorable to  the plaintiff in this case i want to reserve some time for rebuttal i do want the court consider three points one dr van ways march sixteenth letter was sufficient to trigger the interactive process which the employer did not engag van ways march sixteenth letter was sufficient to demonstrate a triable issue combined with her declaration testimony was sufficient to demonstrate a tribal issue of fact concerning whether ms beeler could return to work in the spring of two thousand and twelve with reasonable accommodations and three the record demonstrates a trial bill if she were a fact concerning whether the employer in this case required a full release before allowing ms beeler to return to work that would have been a per se violation of the lady i'd like to need to be looked at by the court first of all whether the march sixteenth two thousand and travel letter received by the reed group on march twentieth required immediate implementation of what had been described as possible accommodations because that appears to be what is being clear under the law of the state of washington that accommodations and interactive discussions need not only take place with the employer we can also involve an other individuals including a health care provider which is exactly what was going on in this case the other question we believe has to be answered is whether a full release meaning that the employee could only be considered for return to work if there was no limitations and no record for accommodations was really what was being talked about and i will call this court's attention to the declaration of  outside agency to determine things about f m l a disability leave and to receive accommodation requests so they can be evaluated and then once those are evaluated and there is an understanding of the disability or requests for accommodations this can then be referred to janssen pharmaceuticals occupational health nurse to coordinate accommodations that is deputy trustee this process is in place to avoid those who have no need to know to know about the disabilit and accommodations of individuals in a large company where there are a lot of people it is important to johnson and johnson and to janssen that they keep that separation the allegations that john janssen pharmaceutical refused to engage in the interactive process or simply false statements under the timeline which i think is a very important thing to review in this case what janssen did was to seek an understanding not only of the true nature of the appellant's condition but also of the nature of her of the interactive process and  essentially begin at the moment the request are made this is not the state of the law in the state of washington it should not be adopted by this court as the standard the standard in the state of washington is that once an employer is aware of the disability and the requests for accommodation the responsibility of the employer is to take positive steps to accommodate those limitations those cases goodman vs born human vs american disposal make that point very clear however if the court were to adopt a standard such a that which is being requested by the appellant in this case it would make it impossible for an employer to actually provide accommodations in a reasonable and thoughtful manner while still complying with the law i think again that you need to look at the facts and the time results of the i mean and she indicated that they told her that she might need to actually go on long term disability while they continue in this process of discussing the issues that existed between her opinion and that  at that time until the earliest may of two thousand and twelve so we have all of these conflicting pieces of information and all of this conflicting data and now we have the request to return to work according to the appellate that request to return to work received on march twentieth at the same time the application for a long term disability was in that it basically contained no specific information about the date of return it did however from the perspective of janssen can contain aspirational statements about the employee's plan to return to work at some point the information was signed by her health care provider dr van away and as i previously and indicated it was completely contradictory to prior statements when faced with these contradictory statements what any employer would do was to try to resolve them and that is exactly what janssen did in this case the interactive process in this case involved d a march twenty second dr van way after receiving the report sent was sent an e mail at eleven ten am in which midst of all more state it to her asked her a question he asked her if there were other treatment recommendations and whether she agreed with the assessment of dr bostwick that was a part of the interactive process only two hours later at one eleven pm dr van way wrote the remain off of work for six more months given the variable cognitive deficits secondary to her psychological diagnosis despite the appellant's efforts to somehow deflect from the clear assessment of dr van way in which she essentially repudiated her statement written on march sixteenth there is now an efforts to say that somehow jansen refused to engage in the interactive process with an individual whose physician had stated that she could not return and given that we're on a summary judgment standard and taking that declaration in the light most favorable to peel or don't we have to say there's a genuine issue of material fact as to whether she could have returned or not submit that when someone writes a declaration three years two or three years after the fact in an effort to support their their patient disregards every piece of evidence and information that she had at the time fails to mention any of the statements that she made other than the one that she wrote on the sixteenth fails to recognize that april eighteenth two thousand and twelve she again filled out a form which said very clearly he and this individual returned to work and she wrote not until october of two thousand and twelve and there was a box where she could have checked with restrictions she did not what she said and instead at the time that the company was evaluating the circumstance was that not return to work this wasn't just a mark statement this was also an april statement so aren't you talking about the weight of the evidence which is something for the jury i am not speaking of the weight of the evidence what i'm speaking of is is a standard the court has said on many cases and summary judgment you may not create contradictory evidence in order to create something that prevents or reject judgment and that is exactly what dr van one way and the appellant were doing they were said attempting to create evidence that did not exist in order to avoid summary judgment in this case because the facts remain that even if you don't agree that that judge that janssen moved quickly enough in forty eight hours forty eight hours there was a r job description to determine whether or not the case could return to work under any circumstances and his assessment based upon his knowledge at the time of the job description was that she could not return until the earliest in october of two thousand and twelve this is this is a clear issue of there is no question for the jury the facts are as the facts are and in this case the facts and timeline are what really matter here the appellate in this case does not have any genuine issues of material fact only those which have attempted to be created but which appear to disregard every other fact in this case including the facts created by dr van weigh herself i do think it's important to as we as i move forward toward the end of my time i want to be sure that that from my perspective if the court believes that there is no inconsistency between the statements made by dr van way in march of two thousand and sixteen that you do take a look at what she said in writing in the record unrefuted it because you cannot hold two opinions at once you cannot believe that someone can return to work and they can't return to work unless you are only doing it for and i think that i have covered most of what needs to be covered here but i think once again that we need to look at the facts in this case the timeline in this case and the fact that to the very moment appellant's deposition in two thousand and sixteen she had never been released by any health care provider to return to work that was a static set of conditions from the time of that march eighth letter all the way through with the exception of one for a by dr van way a march sixteenth which the record reflects she did only because of the request from her from her patient and not because she really believed that that was the case and she within forty eight hours repudiated that position there is no question for the jury to decide in this case this case is one where the employer engaged in recent activity engaged in the interactive process and there should not be any question if there was a hint of a suggestion to dr bostwick that he consider possible accommodations to facilitate his return to work if there was a hint of a suggestion of that then the defense argument in this case would have some merit but the record is quite clear that dr bostwick was not asked to consider anything about reasonable accommodations and as i quoted from he is that's that's true both from with respect t form that existed page eighty eight of the record the release to return to work form that that the employer utilizes it's clear that they were looking for a full release and it's also clear from the from the express language from the questions that were presented to dr about bostwick and from the expressed language of his report that i quoted in my previous remarks that he did not in any way consider the notion of reasonable accommodation with respect to the  march in april so she can return to work in any capacity she may be able to return to work on october twenty eighth with accommodations so dr van way was certainly considering whether reasonable accommodations would allow as it were to return to work we're still ignoring the march sixteenth letter we're saying that doesn't count we're still ignoring her summary judgment declaration we're saying that doesn't count if that evidence had been stricken from the record in this in the summary judgment proceeding below then maybe we would have have something to talk about with respect to that issue but that evidence saying even although dr van away clearly changed her  view you also have to consider whether after march sixteenth two thousand and twelve she was asked whether accommodations would facilitate the return to work she references them with accommodations served certainly she does so to that extent her opinion does plausibly return to work in may of two thousand and twelve she never said that she was and she never addressed that issue you don't want to clarify this year are you know what you know what would have or what i've probably kept us from being here today is if the employer had followed the law and responded to the van way march sixteenth letter and engaged in the interactive process because then they could have clarified these questions the notion that they did it i think they're sending active and wa court outlined what the employer has to do with respect to engage in the interactive process at page ten eighty nine of the opinion the court said an employee is not required to use any particular language when requesting an accommodation but need only inform the employer of the need for an adjustment due to a medical condition she did that the interactive process requires one direct communication between the employer and the employee between the employer and the employee now between the employer and the health care regroup and he said nothing until you get a release he called carmen harris the h r person at jansen and she said we won't talk to you until we get a release from the regroup the release from the reagan required a full release the other requirements of the interactive process our consideration of the employee's request that didn't happen in this case and the third requirement of the interactive process is offering an accommodation that is reasonable effective we never even got to that point so if we're going to apply the law the ninth circuit and presumably washington law the employer had to respond to that march sixteenth letter and it didn't it didn't engage in the interactive process and is this court has held repeatedly the employer cannot prevail in summary judgment if it fails to engage in good faith in the interactive process the trial court didn't consider that with respect the trial court should be reversed thank you very much thank you a lot of think both counsel for their excellent argument