on october fifth two thousand and twelve the f b i told mrs reagan dia's in an e mail to stay home and keep collecting full time workers compensation payments even though mrs reagan diaz wanted to start working at that time and just a few days earlier the highest level of division management had said in an e mail that she would be able to help the f b i at vance its mission on her requests a limited hours schedule and on that very day october fifth two thousand and twelve when the f d s to keep taking full time workers compensation benefits the supervisors in the resource planning office of miss where mrs reagan d s work had just identified a suitable assignment for mistaken ideas in the corporate policy office which is another part of the resource planning office a suitable sign meant that a jury could find this  perform her central functions of her job and in that the mouth explicitly said that ms fake india has to be able to perform that assignment on her requested schedule which was two hours a day from an office as your home so your client to at least until i guess may two thousand and thirteen had never committed to anything more than two hours per day diaz had requested to work two hours a day in order to increase her worst day is there any case that suggests two hours per day is a reasonable accommodation that would enable a previously full time employee to perform the central functions of a fulltime job well the department of labor bolton the lead in case that an employee could come back to work risk on a two hour a day schedule and increasing their hours from then and this court is but refer for rehab back purposes for the rehabilitation act purposes i don't know that the case where an employee requested to start two hours a day but i do know that this court has repeatedly advised against  like it but i don't know of any case that goes nearly this far to say that an employer has to come down to two hours a day where the employee was working in a job that that was full time and that seemed to put a premium on being at work and going to meetings frequently i'm in the position was a liaison position  the supreme court said in barnett is that every commendation needs to be reasonable on its face which would be defined as something that would be feasible for the employer and in this case the deficient had the highest level of division management on may twenty second in response an email her mistake and he has said she was ready to work two hours a day from an office close to home that there isn't had said that she would be able to do meaningful work on that schedule that she request said and are next the civically defined it reasonable on its face as something that's feasible for the employer and here a jury can find that the division head knew what was feasible for his department the district court ignored what the division had at your statement of disputed facts and the responses to you and i never saw any evidence that you dispute th at the time that the defendant was denying the accommodations post injury after mrs reagan d s was coming back to work as a disable wanted to come back to work as a disabled employee in that period another colleague a non disabled colleague was allowed to work on the very same sentinel projects one to two hours a day that did not require more than two hours of availability for the impromptu meeting so even if there were some impromptu meetings that non disabled colleague was legally able to do m disabled colleague was working full time and had other duties where she would not have been available for impromptu meetings during the time well i think it's a fact issue that a jury could infer that if the issue this person was awarded for working above and beyond is that the testimony was that the one to two hours a day was a gun a jury could decide that you  that they found other work that mystery india's could do that to not required meetings it says not enough so under aka they employ or has a duty to communicate with the employee about other options indeed found at the time now there's no evidence in the record  that was a failure to be assigned in a failure to accommodate a claim and the but specifically said that this employer has a duty to communicate the options to in the employee for reassigned it if the if the player thinks that the employee cannot do the such function of the job i'd like to add that at the time nobody's here for impromptu meetings this is at these are reasons that were brought up in litigation there's also i have responsibility for the employer to communicate with the employe then in october october fifth on page sixteen twenty two you see a description of the the job that was available for this ring india is in the corporate policy office and it says that at the top as most of the performance management unit work is collaborative meaning intensive they're not going to assign her to that part of the r p o the resource planning office but they identified resigning into the corporate probably see office where she could work do policy manager functions work on sun's know at at and this was on two hours a day which you'll see on page sixteen twenty three is where it's specifically in writing that she was going to be coming back to ours that day at that point when they identified the c p o assignment this is what was communicated to her at the time nobody said oh we need you here for impromptu meetings i was on the him of that occasion and it comes from this testimony when she was describing what she had done at a particular stage of the subtle project before she was injured yes that stage required property meetings but in the time period that's relevant under mentor f sixteen twenty two the same email explains that the work that misread india's had been doing before is no longer necessary because central point has been completed so at that point the project she had done before which she  testified about in her deposition as requiring impromptu meetings or no longer happening and so the jury could infer that in fact impromptu meetings were no longer necessary that the judge got confused and thought that wha before projects where the nature of her position but they weren't the nature of her actual position her position is a project based position as described by slander or the projects were changing all the time she for over a year that was she was harmed professionally economically and emotionally she was very sad that outstanding employee she loves her job she wanted to work she wanted to get wanted to be back on the team there was an emotional harm to being saluted during that time she's also a professional highly accomplished person she did not want to be sitting at home taking workers commentator payments for that year she wanted to be back in the workplace and there's an economic loss as well it also affects intercepting crease to this day she's still affected by that because it was delayed by several months while she was out oh well she did she ever do her central functions so under the regulations for the rehab back the way it works in federal government is if you can't do your son's all functions then the accommodation of last resort is a reassignment but nobody said to her we think you can do your son's functions what they said was we would love to have you back in any capacity it was just the management in h r worker's comp in the reasonable accommodations office they were getting confused as it now it is basically that they got the law wrong thought that worker's comp didn't allow a return when actually that does did a lot of the very returned miss rate indias was only be asked to she was only asking to be paid for the work that she was going to do two hours a day and allows that but that statute was mis cited by the f b i confuse the judge and the judge ended up using the very provision of the feet of that would allow over the course of two thousand and twelve from early in the year until october or about whether she can come back to her existing job two hours per day and she explicitly says i can't commit to that because i can't eat all this stuff well ok so the i see what you're asking she didn't act explicitly say i'm thinking there was some reassignment but again the employer if the employer things that you can't do your central functions the poor as opposed to move to the next step give you a combination of last resort but she says he did she she has to prove that she's qualified with an accommodation to do the central functions of the job so it seems like they're pretty different theories one is she could come back to her existing job and perform a two hours per day and a very different one it's a very different want to say well maybe i can't do that job but you have to find me a different what this very issue was addressed in the op opinion on back opinion of the d c circuit the circuit explicitly ruled that when you are not qualified to do your current job that the employer has a responsibility to consider a reassignment i did not understand that i'm i'm i'm focused on preservation right she can litigation for years later she couldn't she'd had no nobody said to her you can't do these social functions so she wouldn't have known to ask her to resign but in addition to that she didn't know that the corporate policy office assignment which actually is technically not a reassignment that would have been just assigning her something different within our own resource planning office so the corporate policy office assignments and sixteen twenty two are not technically or reassignment but that it's supposed to offer that to the employee that the employee is not expected to be a detective to find out if there's a vacancy or another assignment that they could do and the the importance of communication is emphasizing the interactive process if the f b i had participated in the interactive process we would not be here today as one or if but that there was meaningful work that could be done at her level and if there are projects in chains what he testified to in his deposition was that they would have found equally important work that she could do because it is the nature of the department there are projects changing all the time so if he is if there had been an interactive process mr slender would have assigned this rain diaz to the corporate policy office jobs or some equally in important work if there had been an interactive the district court miss cited that provision overlooked one so just cited to ebay and got and thought the fat said right here in the decision this is misleading federal agencies right now it says federal employees may not receive come sation while receiving  his twenty five twenty five the court assumed that you couldn't you couldn't go back to work if you're on fico benefits but that's contradicted by the next part of the provision and the end one a one that says but you  actually go back to work and work and get paid in return for service is actually performed for the agency but what the court did was over looked a one and just looked at a and then from its misunderstanding of the statute that the only option was the worker's comp process but they were but the rehabilitation act does not exclude employees who get disability from their work but what happened here was the reasonable accommodations office in august of two thousand and twelve deferred to the workers come this refused to process the requests for reasonable come in a sense of the workers comp advantage or said to work or say i don't do reasonable accommodations that's what he said to her when she said what i really want fair enough but there is back and forth throughout this time right she initially says i want to work  negotiation as it were comes to an impasse when the f b i says we can't go all the way down to two hours per day and that just tees up a legal question of of whether she can go to trial long on those on those facts right and i see my asking my question on its face it might look like oh there was a back and forth as an interactive process the problem here is that it wasn't an interactive process  flexible interactive process under the rehabilitation act it was that workers comp manager of the f b i and manager of the f b i following what he thought now he turned out to be wrong what he thought is contrary to the month which is positioned he turned out to be wrong but at the time he thought it was his testimony is that he was following the worker's comp procedure what that matt was flexible interactive process of the rehabilitation act process was ignored because the manager from another part of the f b i said well i know i'm here to do reasonable commendations but i won't do it because she says the workers comp i don't well the right but you also all saying that with regard to fists job and its requirements of being at meetings and such two hours a day just all work ok so nobody said hundred seven was to miss reagan diaz and said this won't work she was ecstatic she thought oh my gosh i'm going back to where i'm so excited two days later workers comp and comes back and says no tell me when you're ready to do fo hours for as a nothing i won't consider anything less than four hours she said i really want to accommodation he said go talk to the reasonable combinations office you want to combination go talk to them two months later reason the accommodations office says i won't talk resource planning office projects none of what he said is based on the nature of the work the nature of the position as the district court describes the huts four hours a day was a on october fifth says that pm you had sunni meetings but because of that they found other work in the same resource planning office that miss reagan has could do so this is not an accommodation of last resort at this point it's in the same office this is showing that she can do policy manager work should be doing work it says generally handled by highly graded employees such as sharon so she will be doing the same exact same work as her management program morning the fact that non disabled employee was able to do sentinel work one to two hours a day and then said inferring that santa work always required full time schedule the district court ignored critical evidence on the nonmoving part is favor in ignoring the corporate policy office assignment that could mistake india's could work the district court ignored evidence and moving part favor the district court also ignored extensive testimony of slender orf saying that this raid indias could do the essential functions of her job and that it would help the department and ignored what the contemporaneous statements of the department were at the time which a jury could infer that employer would mention some of these issues at the time if these really trial in this case summary judgment was inappropriate on this basis thank you it's not correct that mr was able to do this reagan diaz's job in in one to two hours a day there was also a lot of discussion about whether reassignment was was necessary here and whether this corporate is maybe a reasonable accommodation when there is a vacant position there was no vacant position here this was a project that they were looking at to try to find see if there was something she could do in two hours a day that's not there was never any suggestion that she be fulfilling her essential job functions and that was not a position that with that was available  now when this record what's the importance of that argument that you're making that if they if they believe that that there is some meaningful project that she can do and work on even if that project is going to you know have some sort of finite the ration that they don't have to offer that to her as a reasonable accommodation effect can be done and they're too in that two hour per day window that she can work that's correct where where the essential functions of her job require eight nine ten hours a day of work it's not a reasonable accommodation to have her work two hours per day on on a particular project that's not what her job requires and i think there's  a disconnect in in some of plaintiff's arguments between the idea of fulfilling its central job functions and performing meaningful work so let me make sure i understand your argument and the implications of it so let's suppose is to make this easy that there were five different things that she worked on before she was her and they are able to find four people to take four of those there's no obligation to allow her to do that because she still not demonstrating that she can perform the essential functions of her job that's that's correct your honor to be qualified an employee has to be able to perform all of the essential functions of their job not merely some of the essential functions or one of the essential functions so it's a so you know the law supposed to make some sense how was that resolution make any sense  i think that in in these sorts of situations it in a choir certainly has that the option to to to waive essential functions and they can allow somebody to come back to work two hours per day but that doesn't mean that the person is fulfilling the essential functions of of their job and so that that could have been something that the f b i could have done here if they  her job in the allowing her to come back and do one of the five she's a sensually asking for an accommodation that changes the essential functions of her job it doesn't matter immaterial for rehabilitation act purposes but they could find you know for other people to cover those other essential functions the question of whether she's a qualified individual is whether she could do all five that's correct your honor so legally even argument but it might not make common sense in some situations he it may be to the benefit of the employer to to have someone come back part time even if they're not fulfilling all of their essential job functions but there are also reasons why that might not make sense and in fact there is evidence in the record about the significant management challenges that would result from having to supervise someone on a two hour per day schedule finding work that can be done on that short very very very short amount of time that presents a significant burden to to management and so it's to be the it's a judgment call for an employer to decide is it worth bringing in one person for two hours a day to get you know that amount of work from them if it means having managers have to spend a significant amount of time looking around find what work and give this person that's a judgment call for the employer and in some cases employer may decide really required someone to be there all or most of the time but why shouldn't we look a little bit skeptically on that because the f b i did in fact offer to take her back at four hours a day seems a little bit hard to reconcile with this idea that she has to be on call at any given time for any huge classified meeting that might pop up on a and there is evidence that it was it was considering projects that she could perform on a on a two hour a day basis and as your hundred points out they did ultimately bring her back four hours a day they were they were trying to keep this employee happy and they were trying to accommodate her  but by doing that they were conceding that she would be performing the essential functions of her job on a on a part time schedule we're not saying it's impossible for her to accomplish something in four hours or two hours and certainly she could she could do something during that timeframe but that doesn't mean that that's not what what performing one's essential job functions requires and  the the evidence is that it's necessary to work eight nine ten hours a day in order to be as effective as the f b i has a right to expect of its employee in that position so i think there's a difference between performing essential job functions and being there making a contribution the what's required by the rehabilitation act is the performance of essential job functions now turning to the  claims based on the denial of the two thousand and twelve the director's award those claims in my view are similar to a lot of non selection or non promotion claims that we see a lot of in this circuit and typically in those claims the plaintiff will try to show a disparity in qualifications they'll say you know my qualifications were so far above the qualifications of the selectee that you can infer discrimination or retaliation and there's nothing like that here there's no comparison between the straight and d s is contributions to sentinel and the contributions of those selected for the directors award at best you can say that she's arguing that her contributions were roughly equivalent to some of the recipients but that's not sufficient to show any pretext or an inference of discrimination or retaliation in fact she agrees that each of the recipients that she knows which is twelve of the fifteen they worked hard and they made a significant contribution to settle she doesn't she argue though that one of the grounds that the explanation that's given the so if that's the case then one could arguably in for falsity from that in the end there be a question as to whether  of the reasons given for why her contributions were not as significant as some of the other people but that there were that the reality is that there are a number of factors that go into these sorts of decisions  and yes it's true that i think one or two other recipients also worked as the ace ons but everyone had different contributions and so you have to look at the totality of factors it's also true that s was not did not participate in a project during one of the most critical phases which was the deployment phase and she testified to her deposition that the deployment phase is an important part of the one of the other you also deposition testimony from another witness that it's the most critical phase so taking into account the various contributions of of all these different people  managers reasonably concluded that the fifteen who were selected made the most significant contributions at the time net there was some sort of a preliminary list of people who would be nominated i think that was in  march period and she was on that list right she was on a list in the believe was created in the january february two thousand and twelve timeframe it was created for a different award it was a two thousand and twelve attorneys general attorney general's on that earlier list for the attorney general's award they took that list and it was months later it was i think may to june timeframe and they looked at the the project including the fact that a lot of significant work at occurred in those intervening months and they made adjustments she was not the only person who was removed from the earlier list timothy bell was also removed he is non disabled and does not have prior protected activity  they made adjustments based on the additional time period of work including this significant work towards the deployment and made adjustments on that basis for the for the attorney general or for the precise about this the first list was for the two thousand and twelve attorneys general ward which there's no claim based on out of were right that they took that list when they developed a list for the two thousand and twelve directors award they first took that list and they made modification and made cuts correct but you still have as to the director's award you have the testimony from the decision makers that when they made their recommendation they didn't know that she had engaged in eureka look at that and see that in this raid india's was able to do were actual functions schedule is not a function unless there's something functional about the schedule and so for example an airline pilot would have to be in the air for the fully hours but here are the strike indias could do all of her functions during the time that she was working as this document on record six hundred twenty two reflects and the jury could because a jury could find that this case needs to go to trial it's true that courts have said that judges are not to act as a super personnel department will hear there is significance a jury could find to the fact that the highest level of division management wanted to simply back thought that this employee could do her central functions as the as a jury could find his testimony to mean when he said that she could work at her level two hours a day that's what meant by meaningful work and that was work that was commensurate with her great experience and abilities and that would be equally impactful on important work he she could do that on to her the schedule jury could find that she was capable of doing her social functions as the management found instead for granted summary judgment based on somebody who wasn't in supervising this very department who just was confused honestly or