in this case before i begin with my summary description i would like to reserve three minutes and i will pay attention to the timer although i don't see it currently yet but in rebuttal the americans with disabilities act was a sweeping set of legislation designed to keep people with disabilities in the workplace and under title one the employment provisions the employer's duty to provide reasonable the case law very clearly shows that the interactive process is a vital part of this mister mann requested a job modification to be able to work in a unit that was a normal part of the operations of the prison that he worked in in order to get me hip replacement surgery the dios a in the in the form of warden long did not engage with was taken out of the unit and told the need to get new restrictions the new restrictions that were issued were the same with regards to physical limitations the only difference was that his p a said another three months would long saw those prescriptions and said i'm sorry i've decided that based upon the needs of the facility we won't let you come back to the unit anymore that's not necessarily a market  honor the same way that a leave of absence would so while he was not able to do all of the walking spending that most of the officers date on a regular basis he could have once he had the surgery and so the same analysis applied for a job modification situation where it's not a made up position where it's part of the normal operating the syllabus for the prison he could have done that on a short term basis so that when he had that treatment that would really look like recommended in the reasonably hope that it would be effective he could then return to all of his essential functions and with regard to leave the courts are typically interpreted that because the employers have said well attendance is an essential function and if you can't attend then you're not doing your essential functions but the courts interpreted the duty to provide me as saying he could perform his essential functions in the near future or england there are no magic words mister manning needs to use all he needs to say is hey i've got a disability and i want to be able to work and so he filled up the form and said yeah i want this transitional duty assignment i've got these problems with my hip that lead to  limited issues with standing and walking and it's at one time the dude was on what move on to say well let's have a conversation let's find out exactly what the nature of your condition is it's something that might improve in the future  have any treatment modalities that might work i really don't know enough to talk to you about how long we might need to accommodate and when he got the extension in august instead of having that conversation at the time he simply sent him a letter that basically said i'm not going to explain to you the real reasons i sit there on you you're not going to work in this unit anymore and under  vs web the th circuit followed supreme court precedent which said that plaintiffs or litigants are not required to engage in a futile act or a futile gesture and to the extent that there's any question whether mister mann and should have contacted the warden the defense litigation strategy basically says we were going to give them any more time in this unit so they haven't said if we only know that's not their defense  he doesn't get any more time so a jury could certainly find that mister manning was not at fault with the interactive process breaking down and under the taylor versus phoenix a school district that's a decision for a jury to determine who was the sponsible for the breakdown in the process if any and that if there was a breakdown and there were issues about the employer not knowing enough if the employe prison was not going to allow him back into the in steve unit a copy that was sent to jennifer murphy the eighty eight coordinator there was no communications from ms murphy to mister mann and saying oh let's talk about this this is the reason why the warden did it we're unsure of anything they never asked him for any more information they simply said no so it wasn't a question of whether mister man and didn't properly communicate with the employer and in fact in my primary brief liens versus philadelphia housing authority is a very analogous case in that case mister williams was a police officer for the philadelphia housing authority suffered from d couldn't use a gun there were some issues with his psychiatrist thought that he shouldn't carry a gun for three months but there was no guarantee that at the end of the three months he would be able to carry a gun but as soon as he received that really he said to the philadelphia housing authority i could work in the radio room which is a regular position that's the sign for the police officers at the philadelphia housing authority or the training unit which was also a place where people work he asked for both of those they said no you don't understand we reserve not the right not to put you in either of those positions and they were perhaps when they said you're going to go home you're going to be on unpaid leave and then before the three month period was up i do your honor that's workin in the info you in the message and definitely no he wasn't asking for an indefinite but those played out over months oh man over a year and the reason he did not do better get better just because he didn't schedule the surgery which was because he was overweight and also another time he said he didn't have any money that sounds like it's going to go on indefinitely your honor no one dollar from the state had said i'd like you to lose the weight but mister but the doctor also said i'll do the surgery even if you don't lose the way somebody had said to mister mann and we really do have to limit it it's not unlimited you only get ninety days he would have had the surgery but he wasn't given that option your honor and with regard to the timing of reasonable accommodations courts should not allow employers to refuse to engage in the interactive process and then later to criticize the plaintiff for what he or she did or didn't do after they refused to engage with him and in fact in the op williams versus the fee housing authority nobody criticized mister williams for what happened toward the end he had been given the right to request an extended leave and he didn't request an extended basically what the court said is arbitrarily utilized his quote unquote discretion to limit mister manning to the thirty days and it actually called him or the a coordinator had said hey it can't go until january now that we know that surgery can be effective we can't let it go until january we can give you sixty days we can give you ninety days but you have to schedule the surgery and you can't put it off and if it's not that and said we'll let you work in the unit until you can get the surgery done that's what he would have done but basically what happened to him in early august of two thousand and seventeen was he was told we don't want you anymore we don't need you and they didn't give him an explanation why it was simply the warden's quote unquote discretion and i'm dismissing of that idea of discretion your honour's because he's a da was designed to avoid the paternalism that comes with individuals who are in us at what point along the way based on the rack there that you contend mister mann and ask for a reasonable accommodation was it just one time was multiple times and when did that happen i think that would help us in analyzing your case or when when he filled out the forms in july and in fact he filled out a form in july early july that  when he had restrictions they were more significant and he went back to his and he was refused work in the m c u and he went back to his treating therapist and said they're not going to let me work in the m c u with those restrictions and i think i can work in the m c u if you are willing to adjust please and so they did and i believe it was july th maybe it was the th but it was an early to mid july when he was initially placed in the m c u that was his request for the accommodation to me and it's and they gate and they gave it to him made it and then they took it away three weeks later at the accommodation a gate and did not cover all the essential functions of the job correct it was a temporary placement but i'm just asking did did up what did it cover all the essential functions the job then you can explain but those are essential functions and the last says that with regard to an accommodation if you can do perform all the essential functions in the near future it's not just at the very moment the request is made and that's why i point out well then  back to judge phillips is right about the near future how do we know it was the near future added they know the near future well once again i go back to the williams vs philadelphia housing authority i'm asking more about the facts of this case what  of what was the department told about when they could expect him to get the surgery and come back he what they want your honor because they did not ask him because he's not required to the parameters of are you arguing that the employer has to manage an employee's physical and medical conditions and ok you better get your hip replacement august not immediately form even though it would long knew that this was a potentially reasonable accommodation the deal or c fell down and yes they could have said to mister man and well you have a choice you can either get the surgery in sixty days and have on or must manage an employee's health care decide when he gets up replacement surgery etc etc if you my time's up your honor i disagree with your premise but thank you very much  offenders all classifications now the jab to the job description reflects a correctional officer want the purposes for safety and security now egad that entails having officers they rotate throughout the trip work in both indoor you know outside security housing or whatever the case may be and we know that out the job thirty five percent is on facility acc and that's just look at sounds it's motrin people going in and out of the facility over defenders to doctors appointments etc we also know that thirty percent of the chopper spent on that aspect of safety and security and that's just social functions and my job because of in the control room we submit that this this court has rejected that argument in the martin kansas case there which it had it was mister martin who are thr is i'm not taking down and it made every other day so therefore to judge me by what i was doing in the tower and this court said sit no what you're saying they told mister martin may well be true you're not exercising   on the point you're making let me ask you a question about it this way when mister man and was given the transitional assignment the control room in july was that a reasonable accommodation as that term is used in the a b a answered this way i think potentially yes it could have been however i just to back up t yes because mister manning says shabbat restrictions we're going to put them into the control room and it which is which is what they did and for that three week period then he was in the control he didn't have to be doing next in tension with the martin case in the sense that when he was assigned to the control room in july and really his request to be some signed there for another three months  that would be a situation that did not in compass the whole spectrum of essential functions for a correctional officer so while it may have been an accommodation to let him work there was a an accommodation so that fits the definition of a reasonable accommodation under the statute other words was was the department giving him more than the statute actually would have required i would say no i think what department was doing it in the way that warren long was interested in is this the way intentionally when mister mann agreed to the job until it was acknowledged that he was going to be there for three weeks and went to three weeks and it then he came back and he said well through my medical provider i and what we submitted to mister mann it's asking for is either one of three things well before you ok or you get into that had worn wong extended other transitional assignments for other to any facts demonstrating either testimony or other otherwise that he was similarly situated with the street a ploy we don't know for history manis perspective what was injury what was a disability how long were they going to be in this temporary transitional period what happened to them if they were trying to where there were other jobs or did they not that's why we submit that the district court was scrapped it were guarding this is  agree that our responsibility here is used to determine whether this gentleman has the ability to perform the essential functions of work and the whether he gets a hip replacement surgery  accommodation with mister man and ask for an accommodation in february of twenty eight what happened was that there was that interactive process that counsels referring to now as i understand it consul saying this should have it is we see it the mystery man it's asking he's got to read their street thinks he wants the o c to do either restructure is dropped by eliminating some essential functions create a job or to leave him in that interactive process if i just heard correctly it sounded like you were saying that it did any obligation on behalf of the department to engage in an interactive process really didn't kick in until february th scene but if if if he asked for an accommodation back in july and then asked for an extension of the temporary assignment well i would add your honor is that this is a summary judgment in the back to be interpreted in a way most readable to mister men he's asking for a trial he's not asking for this court to find that he wins and there's enough facts in the