morsi worked for the horseshoe casino fifteen years everybody agreed she was outstanding they or i don't know why she may have been an outstanding dealer apparently she he and i tendence first one is that the system that they used was inherently discriminatory against a person with a disability specifically what it happened in as of february of two thousand and she had a doctor's notation that she could only work sitting dial she couldn't stand up at a stand up type they had a few tables there where the where the data could sit down and because of our studio all throughout us she could not stand up according to the physician to work she had to be allowed to sit and throughout or she of the caught me adopted a policy when i had that doctor's note that that it if business is slow and you have to be sent home and they had a system for set of a moment but as pertaining to her watch watch her table closes then she's sent home and normal that she gets an attendance point of being sent home for her b ask you something with respect to the other employees when business was slow and they were sent home let's say you get sent home i don't know how these things work but let's say you show up for work and you work three hours and business is slow so you g not i would assume they don't have a pencil where they were salary at all cases been predicated on these points and all that distance and i was just curious because it makes a difference i mean if you're trying to earn a living put bread on the table feed your kids what happens when you get sent home and whether you get paid or not for the rest of the day is important to someone trying to pay the bills i would think but anyway it's not in your case it's not in a lot of thing we're saying your honor she was treated differently from the away from her fame and medical leave that she's in bad shape she needs to be able to call and see when she's able to come to work but she can't do that she didn't have anything and then medically if she stands out that day counts against her family and medical leave so she's penalize for so they are not penalize it doesn't count against the person that just has a business relation of going home so she's treated differently from those people that have a business raising from been sent home or of why since she offered her a shift switch i think she it starts at robinson proposal robinson proposed nothing all the accommodations were proposed by her according to the record they didn't propose anything except you know they propose they asked you go home early when you were in your shift you can't work but i'm right on page i need to learn another minute bad yank one of the pit bosses allowed her to do that one to try to go work another game and have a day to look over the next night she says she tried to do the same thing in the davis said no we're not doing that you can't learn on the as i asked of something to the effect was about working off the clock or coming in to work off the clock and she does say yes at some point they manage to me i could come in and work out be paid and work but there's no context to that we don't know wh anything to do with this of you know this particular effort to keep her job and when that happened she just says it some point one of the pit bosses of tell her if somebody told her you come in and work for free and learn that somebody's not fairness i don't want to think that's of it be up to him up and up to the jury to decide exactly what happened but in all fairness from her point of view that she i asked to work this other game and i said no as far as learning that other game she was asked at some point during this very lengthy deposition it at some time did they tell you that you could work without being paid as you could buy it off the floor and she said yes what i'm saying is just out of context of that about when did that happen it happened five years ago when did that happen did that have anything to do with the situation we were here about is just totally out of context and what i'm trying to say to the court that whether they all put her i raised up all accommodation is it a question of fact for the ju and then the last one went to says shifting changing to a shift where the game did not close she testified she testified about that and she said that when she got the shift that she get the sit down she had she specifically asked them what shift should i take sure she could have chosen to work the twenty four hour table that never closes out i don't think there's any evidence and they about any particular table never that she says there's a particular pit where  them accommodations that would have worked you know she she said you can move my table over to a pit that never thought i was there was a pit and never clogs and she offered him that she said i would ask him about it and she said it was like she uses and that is like talking about ten dollars they would respond but this case this casino had a system where they needed davis to check the clock out early it was in a system where it was vital for them to have all data as they all the tam their system was we need daters to be able to clock out early so whether they could have much it was easy to work out she ended up with no available f m i like that she won work enough so she was treated differently we thank the jury could also i was a question for the jury as to whether all of the whether whether they were using so it was causing them you could see it was causing them some inconvenience but second on one particular occasion october twenty second she was wearing a heart monitor and they gave her a point because they forced her home kosher couldn't but no top but she didn't go to the where correct about that it didn't matter because she only got a half a point for that or she was already over the ten anyway it was a she she ended up with ten and i have points and saving one point when the savior so they're correct about that one but what they're not correct about your  on such as a common just a common thing about life what was a regime accommodation for some bad a casino in the delta and as as a lawyer i don't go to casinos and you know when i was a perfect question the jurors were like you know there's a review of some time thank and as he explains the stand up tables are the ones that fill up the most and that received the most business and what the psychology underlying that is i'm not sure i can explain it but our business observation is that the stand up tables the ones that where you walk up and sit at a bar chair and and the dealer is standing those are the ones where business stays and where business comes first and so those are the ones where we have a rather those are the tables that are provided more often and that was the whole problem was mr mark wanted to work on the ship that transitioned into the evening and into the evening as we get to the later hours during that shift people quit gambling at the sit down take that was the whole problem with the shi she wanted to work on was that it ultimately closed because no one was sitting there gambling so your honor i'm afraid i can't answer the cycle the psychology that underlies why those stand up tables are more popular but mr lunsford did testify on the record that that is the case for the games the same well that's a good question to your honor thank you it's there are not all the same some games like many bach which is short for many back around in fact is always a sit down game because of the way it's dealt the dealer has so many things that he or she has to do that they must be seated the same strew with if you can picture a game of dice a craps game there is a pit bull city because that pit boss has so many things they have to control so it is it is not true that all games are sit down as opposed to the people you know you're on a trip wasn't one of your employees shame to indicate i think actually that's a little different than what he said that's the testimony of kevin mine and what mr mullen was asked and this is reference been judged a cox memorandum opinion he was asked whether other employees who had to come out on accommodation use their f m l a and his answer was why i can't think of any not that others want he did not write off can have a quick reference but the reason you were wrong or that mr mark wasn't treated different than anyone else is because or she didn't mandate when she would take half a mil a she did she had the ability to designate any absolute she wanted as a female way and absent her decision to do that it was not treated as if the melody that was her alternative it wasn't forced to do that she was not ever forced to designate any leaves as f in the way and in your own and in fact if you look in the record there's a very thorough listing of all the absences that led to her terminations and with some of them you'll see a designation that's fm l a eastleigh show that's when she left early because she called out the f m l a in other instances there's just a nice that's when she signed the  list left early but did not get received any credit toward her family i thought she didn't have enough hours to qualify her well at one point that became the case but prior to that she was able to take the f m l a times and that did them table to another place or something like that he did you wrong in fact she achieved proposed to alternative accommodation one of them was the one you reference to move the sit down table to another because that never closed and the manager of the casino floor and even he doesn't have the authority to move a table it's a very involved process it's very expensive it involves a lot of analysis and the law on the fifth circuit very clear that an employer is free to choose an accommodation and in fact th regulations in the cases make it clear that the employer can pick the accommodation that's less expensive and so i'm sorry on where i didn't understand and it's less expensive and so here she did propose moving the table but but because other reasonable alternatives were proposed the horseshoe within the rights it has under the eighty aaa chose not to move that table she also proposed that why can't i just leave when this table close and nobody ever give me any attendance points well that's exactly what she could have done and there's no question in the record about that all she had to do was sunday email list and every single day when her table close she'd be allowed to go home and there would be no adverse attendance ramifications whatsoever and she tells us record exactly why she didn't dare wouldn't wish there were a mangy would be sound earlier every day that's right but she was being sent home early anyway because the only table she could deal closed there were no gambler sitting at it and so the reality is if she wants to stay on their shift and she wants to deal at the sit down table and that table is going to close because of business necessity she's not ever going to get a full shift unless business dictates that we need her to stay there in that role so her alternative if she didn't want to change shifts and she didn't want to deal me back right both of which were available to her her alternative was to sign that you know list and had she done that your honor is correct she would not have maintained her full time status and she would have continued to accrue time toward that twelve hundred fifty hours but that's a red herring in my opinion roger because she wasn't accruing the requisite f m l a hours before two thousand and nine when she asked for the accommodation there were three instances in two thousand and eight and two thousand and nine where she requested half a million leave but she one qualified that's all before she ever even asks for an accommodation and she continues to maintain throughout this case and in fact her testimony is a very very clear i chose not to sign the e o list because i wanted to get him l a well there i think this gets to the heart of this case or to one of the two hearts of this case and it's a good reason why we suggest that the court  the logic from hankins versus the gap that's the sixth circuit case where judge moore wrote for the opinion and in hankins what happened you had a plaintiff who came in she worked at a distribution center she picked things and put them in boxes and she started having performance problems and she started down this progressive discipline change and while she was on there she realized i'm going to get far and so she bought her own testimony asked for a leave of absence the gap looked at or said you can go on leave of absence but when you get back you're going to be this court should adopt the the logic from hank and it's not really a new law it's in fact just common sense and that is self evident accommodations are not something an employer has to point out well that's what we have here self evident accommodations she could have signed the iau list she could have changed her shift she could have learned to deal many block all of those things any one of them individually or all of them collectively would have avoided the intend problems that she instead voluntarily chose to end up with a problem if she did sign the e o m list and i'm not sure how it works if you sign the e o s you start out the day you sign up that list and so you're going along doing whatever you do and say three hours goes by and somebody at another table i guess  table shuts down or something and so you get to because you signed the e o list you have to go and leave even though now is that true even if your tables rocking and you're doing fine not necessarily employees when they come in before they start their share they sign up and then as business causes tables to slow the pit boss may uses some discretion if you had a table full of dealers they wouldn't gambler scuse me they wouldn't come and pull you off that but you would be allowed to go home in the order you signed the list as business allowed and so for instance if you signed the list but you were at a table and the gamblers at that table said they wanted you to stay well then you would go home that business demands would keep you stand up tables lost business she got to go home even though she was a setback ok though if she signed the e o list and her table continued to to have business then she would likely stay at that table until that situation changed and what if another set down table went out of business she that they would come take her place and she would go on because she had signed the early out and get the benefit of it from some other table going out of going out of business whether she'd get the benefit when another table closed as it is a question we just don't know how to answer because that that's not a situation that we have or encountered because she the way it works is this when she gets to work in science that you know where she goes out and deals the sit down blackjack table when the sit down blackjack table closes because her name's on the zero list she goes home but there's no intended to point and what she wanted to do what she wanted was to not have to sign the iau list so that horse you could leave her on for a full shift and the only way that would work is if they either made the decision to keep the table open with business did not need they moved it to another pit where it didn't close and so that was a a back door for her to request again that accommodation that the table be moved there must be i mean i asked whether there was information in the record about whether you got paid or you didn't  w that which seems to me to be absolutely fundamental to understand the pay status of people coming and going so to speak but apparently there's nothing in this record if you do if you sign the e o thing we don't and they say ok you get to leave early there's nothing in the record that says whether you get paid for a whole day or not if you leave early i'm sure i agree with that i think it is in the record and i do not believe you get paid if you leave after you or it's got to be parish it is on paper it isn't what you tell it that's why she didn't want to sign it well interestingly your honor that's not why she didn't want to sign it and she's very very very clear about this she never mentions not wanting to sign it because it would hit home in her inability to pay bills or a financial reason she's very clear repeatedly in the record in her deposition that the reason she didn't want to sign the you know list is because she thought she should be able to stay for a full shift and continue accruing hours toward her twelve fifteen so she could get o eligibility that's where this whole problem came out where she thought she had a white to work a full time job and get twelve hundred fifty hours and continue accruing f m l s and again that gets to the whole issue again that is in the holding that we suggest this court should consider from the six circuit where judge moore writing for the majority says you're not entitled to your accommodation of choice the employer's burden of horses burden here is to provide a reasonable a dation but if the employee refuses to participate in the interactive process and to become part of that reasonable accommodation or to comply with it then they strip themselves of the protections that the eighty aaa only the other hand if she suggested  a reasonable looking alternative doesn't the employer have to show that it would be a hardship for him to supply that combination no your honor but ugly story i don't believe that and i believe that again goes to the core the very heart of the ruling in the hague and first the gap case which is not an issue this circuit has addressed and it gets to exactly your question your honor and that is if an employee proposes a reasonable accommodation and an employer proposes a reasonable accommodation does the employer or their hands bound they have to take the accommodation that's proposed by the employee and we submit that the answer is very clearly no and it's no for a number of reasons first of all the regulations and the legislative intent support our position because it's very clear in twenty nine c f r leave it sixteen thirty little d that the employer can implement the commendation it wants and in fact you can choose the less expensive easier to implement and then the second reason your honor these are business and the stench it was never intended to force an accommodation that was contrary to business reasons and so this court is not and there is number one there's a great jurisprudence from this court every other circuit that says we will second guess which are decisions if you provided a reasonable accommodation and you base that on your business determinations in your business judgment and it's reasonable we won't second guess that that's exactly where we are in this case and that's what we submitted that this court should do in this case is look just like jacob did in the court below at the fact that horseshoe was trying to accommodate her and there were a number of ways for m mark to avail herself of the vailable opportunities at the district court from new york she cited is the area you're talking about no your honor i'm really referring more to the at this point the hankins versus the gap case from the si circuit i love that case had a new york that i just record it does suit our facts very well certainly agree with the positions we took in the briefs but really where i'm arguing now is is judge moore's opinion hankins versus the gap and i believe that case it's just good law there is no law anywhere maybe one district court in the ninth circuit that disagrees with other just reports but there's no law anywhere in the country that undermines judge moore's holding and he can force the gap and in fact your honors we submit it's pretty good common sense and it's simply this if the accommodations are obvious and the employee fails to take advantage of them and then unreasonably runs into a problem like a legitimate nondiscriminatory attendance policy employee doesn't have protection under the eighty aaa and then similarly if you have like we do in this case a conflict between what could be reasonable alternatives and the employee digs her heels in and then recently says i won't participate in your accommodation you are held hostage until you implement that employee is not protected and in this case that's what mr markey and she's not protected but what happens if it does on a table closes and the dealer has to be sent home but didn't sign the early outlasts there's one person going to point out that that's an f o and that is a forced out that is that is what mr mom i believe explains this combination i'm just talking about in reality what happens what happens to the other to the dealer who is has no business and they have they don't have any other skills that table closes they go home they don't get paid for the rest of the day  they also going to point like she got no in the reason is because had she had she signed the e o list she would have been able to go home and about it and say this other person didn't sign it either and we just ran out of dealers and tables at that point she would be sent home without a point that would be a forced out that did happen to her and if you look at her attendance record there are examples of that now follow that's an f o you're on and the problem from her standpoint with an afro had to do with her crewing the necessary time accommodation and here is number it says you've been approved to sit down games only when the sit down game has closed you will have to leave under f e m a l a or take a stand again it's very clear they told that's when she doesn't sign the letter if she signs that really hot list then they can't take it they can't make her take f a million leave or give up point right i'm not sure about the second thing your honor was the undue hardship he she proposed to move my table to another pit that does not close is a pit that doesn't close and she proposed he said well that was an undue hardship they didn't have the burden of proof the can't just say way out it was a good business decision to do that or it's a business complexity that's what they said but they produced no proof that that was under your chip the statute says the burden of proof is on them it sets forth like for financial criteria they have to to show undue hardship so that's thirteen of the last thing and he spent a lot of time in his brief talking about this he says well it's the employer's cho weiss about what a range of bill accommodate you know which accommodation to give or accept the suggest is not in the record and it is just not supported by the record so way to ask a court to send this case to a jury to allow jury that to determine whether or not the import your proposed a reasonable accommodation and we believe they did not is really