qualified individual under the discrimination act the court found as a matter of law based on twenty one dollars allegedly unauthorized absences that she was not we believe that finding was an error i look at it as a i know a three part analysis st we took the deposition of wal mart's most knowledgeable witness concerning the absences and the witness is concede is that there were seventy alleg absences at issue wal mart did not dispute those facts the next parts really covers from when miss benson returned from leave in october of two thousand and sixteen until mid december of two thousand and sixteen when she had a meeting with the store manager bradstreet during that time benson had approximately nine or ten absences then sent testifies on most if not all of the absences she ga beck said one into the meeting and explains it to brad three that most if not all of the absences involved are workers compensation issue or illnesses related to it and she also told  bradstreet that she could contact the workers compensation attorneys to confirm that she also explained how she had given notice just the store manager as required of her absences at the conclusion is bradstreet d benson she didn't take any action whatsoever so what trier of fact could look at this and reasonably conclude that these nine or ten absences were in fact authorized subsequent to that which is really the rd part much evidence of benson not only now providing it grants notice but also providing documentation providing an m one for providing substantial information or notice with after the meeting and provide an m one which is the worker's compensation documentation or other documentation to to verify that she had been to a medical appoint look at this part brief seems to suggest that they disagree with that so is it is it your position that this comes down to it being at this it it fact it is it is exactly a disputed fact you want to both sides have very different versions of what happened but what's interesting with wal mart's position is most of this is is coast terminations analysis saying all benson went to an appointment for two hours and yet she didn't come back or hours later that was never that was never looked at by management so we have disputes as to whether or not it was noticed related to the workers compensation and that is that is a central issue to do the job it's hard to see how that being physically present is not an essential function of the greeter job and it may not be an essential job but it is an essential function up that essential job and essential job function i'm sorry your honor because there's a difference between something being an essential job they don't necessarily mean at one point my recollection is that wal mart got rid of all their greeters and it was a but my only point is a jury could look at this and say well if it was an essential function of her job when she notified wal mart is she would be absent wore a medical appointment why didn't they schedule somebody in a back policy finding that workers compensation absences are related to injuries not be counted if wal mart had said no then benson could have said ok i'll schedule my appointments after work i'll schedule my appointments on weekends but wal mart said no problem we can continue to accommodate you as we've done before here and the issue is can a person do a job with or without a combination and he or she certainly could do it with accommodation which was actually established long wal mart policy and in fact that goes into our claim for failure to accommodate wal mart claims against never requested an accommodation she certainly did when she returned to work she asked that wal mart continue to accommodate her by allowing her to take time off necessary to go to work as compensation medical appointments wal mart agreed to that but yet now we see they're saying that they're penalizing if i noses occurrences so on the one hand they said that they would accommodate her but then in fact they didn't like terminating her so with regard to the feluda accommodate wal mart with information about it the record as as noted is contains much evidence that many if not all of these appointments were workers comp and was often station related innocent most undisputed to and with with regard to the retaliation claims we have three retaliation claims with regard to the st one for filing the initial lawsuit wal mart claims that the temporal relationship of a year was too long but what wal mart m that in this particular case we took the depositions of the store manager bradstreet in the human resources director only two months before benson returned from leeds prior to benson going on leave and prior to the deposition wal mart didn't make any issue to increase any issues well that's an missing almost fifty days because of work and compensation appointments or medications but afterward they began to take adverse actions against wal mart doesn't dispute that they only dispute they claim that benson ever asked her the combination aside from requesting to miss any time she wanted to that's nowhere in the record the record only contains the request from benson to wal mart to continue here to its policy and allow her to miss time for medical appointments so based no didn't involve a failure to accommodate involve the disability discrimination case in that case the court found that there was no no evidence of a causal link here we have substantial evidence that benson  benson did provide the notice and the reason for her and please introduce yourself on the record attorney thank you but morning may i please the court and katherine represent warrant the defendant in this case i think there are disputes between counsel about what the record reflects clearly are the record speaks for itself fortunately and i'd like to talk a little bit to start about what the record actually of the last we have an attendance policy that authorizes absences for one it might count as you requested a leave of absence as a result and the record reflects that the leave of absence that ms benton saw during the period leading up to her return from her was actually a leave of absence because her medication feeling well is related to her worker's comp injury then you're saying that that's not a valid excuse apps yes that's correct she can request a leave of absence of she's not able to reliably come to work because she's doing it all so she won't so she would have to request a leave of absence for one day no intermittent leave may not be a leave of absence intermittent leave under man extended leave but apt just think suppose as a result of an injury you periodic we are symptomatic and need a leash what they leave you're saying that that's not permissible i'm saying that the the process for questioning what you wake up in the morning because of your injury you're sick you can't give it they actually notice because you didn't tell you were going to be sick until you woke up i just want to follow up just briefly on judge thompson's question so in the case of waking up feeling ill calling in and saying i'm i'm ill that she has to take another step and say so on the th so on the th occasion where someone who's ill navy used up the nine they make the phone call and say i'm ill they have to take it one more step and say can i have leave today well that they have been having and they were in this case had a conversation with management before they get to that point so that they know that their attendance is becoming an issue and that's often what triggers employees to request that they have excessive unexcused absences they want to mark on that process which involves a sharing of medical information so that you are understand what the prognosis is what's the answer to my question about what she supposed to do on the th day that leave request so medical information is requested in the arts in that i'm not trying to put too fine a point on it i'm just trying to understand so is it not implied on that th occasion when she calls in and says i that she has some kind of work related injury that caused her to be ill and it from the record it seems to whatever it was a result of it are going to have a so i don't understand and i don't think judge howard it just help me understand what the college is and has now go about getting an excused absence the policy when it you're ill as a result of a work related accident that's what we're trying to put together here that's what i'm trying to switch that gap ok but keep it connected to work related injury the process for requesting leave or there would be what you're correct absolutely yes yes that if we were reasonable accommodation of the mean human rights act or if she wasn't required to request or leave out of the policy and she was mrs benson would still as a matter of law have to introduce some evidence that this time away from work was necessary in order to get her better him back to work leave us a reasonable accommodation is a reasonable and we do many things remotely these days but we have not yet figured out how to repeat all of the storm remotely and then counted on her to be there and she wasn't there i'd like to just speak briefly about the broader issue  benson one of the st lawsuit has been pending for some time yes individuals were deposed were soon returned to work it's undisputed that nobody was on her about her attendance for the st couple of months they sort of let it slide