please the court regrettably after seven years of litigation of previous appeal and two trials we are back here still attempting to provide for being an end to calmly county's disparate treatment of her based on her blindness and the affirmative provision of what this court said she is entitle to a meaningful equal employment opportunity which it is defined as an opportunity to achieve say level of performance is available to non disabled employees had similar skills and number of what the county described as essential tasks that ms reno as if he still can't do that could she could do given the appropriate accommodations for example she does alone does not use th computer system that is used by customer service representatives and doesn't use the tool bar to answer calls this means that alone among customer service representative doesn't get the initial story intake information that someone else might gather having first answered the phone determined that it was in the subject area that this really as a dean is covering she then has to go over it again and then is it in the record that that is something that county could do reasonably to do with and you know with some reasonable range of options allow jaws which is the software program that nonvisual people use to read computer i would put could beat that scripting could be done it would not be very expensive i don't think the county  challenges the ability to do the scripting the counties position as well will we should just decide later wait and see if siebel provides an update that takes care of this problem on its own import i want to say also the importance of the tasks that ms really as a team is not allowed to perform in the same way as her colleagues isn't simply i just want to do it the same way as everyone else the importance is that ms rae as a dean appropriately so is measured by the same work metrics as who appears in terms of number of calls she's supposed to answer amount of time she is supposed to spend on the phone with hauler documenting the calls she hour ever is at a disadvantage because without these tools that others are using she has slowed down she slow district court erred as a matter of law in failing to provide any equitable leads to ms rae as a dean we we we disagree with you on that we're not here  understood in the event that they have this or it were to determine that no affirmative relief is required in the affirmative releases really the are the issues that we've laid out in the briefing talked about briefly there would still need to be prohibitory some form of prohibitory injunction to make sure that montgomery county maintains accessibility for news reality and this is not this the need for this flows from from two areas one is it it should be remembered that in israel as a dean went from an accessible employment position ackman comrie county to an inaccessible morning by accessible i mean one where she could use the computer system with this jaws program so so it's not an idle sort of concern that the county might decide that there is some other new program that works better than what each is in place now and that those accommodations will no longer work and therefore she needs relief and as as a legal matter montgomery county maintain the mc three one one call center excessively don't want to you want to stop something that might happen in the future but it's not happening now there are other than the already known inaccessible portions of the c s r to position yes we want we want to make sure that the the program the way the work site is maintained as being eligible being available to ms rae as we deem the county the history of this case demonstrates that the county pays no attention to accessibility sort of on the front end when it makes decisions on and then acts only when prompted by litigation you know i would point to the fact that  speaking to her supervisors in two thousand and eight or two thousand and nine when she first heard about this coming all center and everybody kept saying oh yes yes it'll be fine you'll be ok that didn't happen  two thousand and nine november of two thousand and nine when her peer is removed over there she was left behind it was then not until october two thousand and fifteen just before the jury trial couple of months before the jury trial that montgomery county made this job offer to work sort of out of the county at the columbia lighthouse with wind montgomery county then did nothing else technology that had been in place from day one and it clearly could have done could have taken those steps much earlier and did not until it faced the prospect of being ordered to do so in in there is also the is there was in the trial one of the discussion of one of the features that israel as a teen was unable to use which is this sort of message its customer service representatives what their status was whether they were on the system is available or doing something else ms ms ray as a team couldn't use that because it was a visual and there was no text accompanying yet at the beginning of the bench trial the testimony from county was from the county employees was the ox codes were not available when ms leslie hamm testified towards the end of the case she said oh yes the ox codes are available to use reality in and the follow up question was well since when and she said well since yesterday we heard you know we heard the testimony in court so we went and did something about it district court oh i think overlooked and a number of things one is the answer in the complaint i'm sorry the answer to the first amended complaint filed by montgomery county and i hand it to you perhaps have lost it but i will get that get you the jays site on my rebuttal the county answered that limited sight is necessary to effectively perform the duties of a customer service representative to and i do have it's joint appendix forty seven paragraph thirty three of the answer that was never amended overlooked u s v gregory which which basically says that when there is a finding of liability injunctive relief in some form must be granted and what's interesting about that is that the county in its brief agrees in a in a footnote and says well yes that's right whether systematic discrimination or systemic perhaps as the word and i use them interchangeably there needs to be injunctive relief but the county went on to say we think plaintiff didn't prevail in this case because she got no money we don't think money is required and we think the looking to spencer is an error of law because that was a sexual harassment case with a single row supervisor who was harassing a woman and and once the company you learned removed him from his position moved her to another job adopted a policy of no discrimination took effect of steps in terms of reading it literally there is the intervening spencer case but but following spencer there is another four circuit case which we cite that goes back to the to the original standard if again spencer the distinction between spencer in this case the most important distinction is that spencer was the illegal act of a single rogue employee who was dealt with several layers of county management going up to an assistant county administrator of officer including some department heads including the counsel's office so i think it's unfair  and to suggest that this was really just a one off event or a rogue employee it was it was the county policy not to adequately accommodate thank please the court the decision of the district bench trial should be affirmed in this case because the plaintiff this failed to meet her heavy burden of establishing the challenging standard of review specifically she has that would cause problems for his rants your honor there's absolutely no basis for their concern the county has invested significant time resources and technology improvements in order to or the failure to accommodate the county applied only to its prior efforts in which were considered at the jury trial where the jury  not giving an effective accommodation but that applied to a former position at a different location with different supervisors and it has no bearing on the landscape currently progress that's a very good question your honor and yes it is and it's nearing completion and there is at that point in time it's currently been task did thomas logan who testified at the district were trial tested in august i believe and there is more testing that will need to be done but it's nearing completion reason i asked that is so it shows now seem to think that that  recent com your honor i think that's one of many accommodations that the county has need for and right now the evidence is undisputed that the internal accommodation  that she uses is actually more efficient in focusing in key search in doing a search on the knowledge base articles and obtaining the result because mr logan  mr daniel who designed the system and mr logan the accessibility expert tweaked were able to give her shortcuts that she could use to gather that information however the siebel system is one that is natively accessible if the follows through on the representations that it has made to the county and that is another way that she could perform her job the personnel training that she has had as well as the ability for her to you know she has her draws on the computer she's got the braille display the braille printer she call asking the question probing questions of the customer to determine what it is that they want and then researching the knowledge base articles going to the c s r instructions and the public  i think that the record will reflect that even back when he went back to two thousand and nine and two thousand and ten and like the district court in mr esko i've lived with this case for seven years back at that period of time w that's correct thank you back at that time the county did offer her other alternatives when her colleagues were transferred to m c three one one and she wasn't like the child resource center job which she turned down in favor of the job which the jury heard about it h h s in aging and disability unit so at that point in time there were the county was attempting to accommodate her the county is  now properly found has always tried to a comedy or the question is did they get the right balance of making an effective comedy so what the jury heard about was only the job at h h s which i think in the sports words was a couple together job with make work and it was not a reasonable accommodation at that job is no longer she no longer works there and the county's failure to effectively accomodate her and that position has ended she has now been reasonably accommodated for over two years for two years in her position at mc three one one and she had the  opportunity or the collaborative job between the county and the c l b back in october of two thousand and fifteen the jury never got to hear about that because when i attempted to ask her about the offer at the jury trial counsel objected the judge told them to fish or cut bait and what they did was they cut bait they didn't want the jury to hear about that so they ended her damages claim prior to october of two thousand and fifteen so the jury decision has nothing to do with her current position it was the position and since that time there was the collaborative c l p county offer and she was transferred to m briefing although we haven't heard much today i understood that one of the arguments the plaintiff was making is that this is not a reasonable accommodation and that even if it is meaningful when an opportunity that's sort of the wrong duties so what the opposing counsel has argued it doesn't have to use the tool bar or maps she doesn't need them in her current position she has the idea she's got her jaws and she's got her ability to work vice versa the defendant comes forward with a reasonable accommodation it too should include all of the essential i think that's the essence of restructuring your honor is that there is more than one way to perform an effective accommodation in the employer has the right to choose and in this case the employer doesn't have to choose the most expensive or the exact accommodation that the plaintiff has requested but merely has to choose an effect of a combination and judge has now has found after sitting on this case for seven years that this is an effective accommodation and they have failed to prove that she was clearly erroneous in that factual find this part of the combination for the supervisor position she will have the requisite amount of time in the call center and there is no requirement that she answer calls in all departments or that she answer calls in all of the upper  tier two calls so for example she answers to your to h h s calls that is her focus and the county attempted to allow her to answer to your one by implementing the press one option she couldn't handle it she testified she was overwhelmed so she went back to just answering the tear to h h s but as far as being promoted her supervisor robert sinclair who is also a look in the record council mentioned twice in the record is blind has been able to work in supervising people in queues that he never was involved in when he was a customer service representative so it doesn't matter that she doesn't answer all those calls what matters is the way that her call is being handled are you being polite and professional to the customer or are you following the business process or are you asking the probing questions to find out the nature of the inquiry are you able to provide accurate information and are you cementing your service requests and those are all things that she can do and she could supervise someone to do so there it is there is no concern on the counties part that she could apply assuming that her work performance is in acceptable and she's got the requisite time in which she's got two years now so she's had enough time to apply for a supervisor position if one were to open up and she would be considered against the other applicants at that time and the district court found that there was and again her findings were that there was not an issue with respect to the ability of the plaintiff to be promoted to a supervisor position also went into facts the civic findings with respect to the minutiae type of complaints that mr bastow was making to the court here and were found that she's able to do the functions of her job not to the extent that this court says there is an essential function she can't do then it's the restructuring that i discussed with judge harris and response to the important thing here is that she has been reasonably accommodated in her position and that there is no danger of her recurring violation the mere fact that she have suffered a harm in the past does not mean she's entitle to a permanent injunction going forward which this court has recognized an injunction will not be granted against something merely spirit as a liable to occur at some indefinite time in the future there has to be a danger a cognizable danger of recurrent violation and that does not exist here the county has done everything it can to recently accommodate or impact in some of the trainings there was  other people who have common sars to mc three one one typically trained in groups of eight or ten she had customized training all by herself she was trained by the three one one call center trainer the h h s business analyst by her own supervisor by the call center manager she was trained by the carers which is the state database that she uses to answer each h s tier two calls she was trained by the person who works with that and in that cares training it was not only one on one training it was six on one training because we had dudley there who was a scripting expert for the carers manual we had thomas logan who was the count accessibility expert we had her supervisor we had the carers trainer we had c s r who did these type of calls to work to make sure she could access all of the screens and answer all of the questions so the county has invested significant time and resources in personnel to try to make sure that she has the tools she needs to do this job and in doing that she has been recently comedy the second point i believe i've already made that the ineffective accommodation that the jury heard about has ended it no longer exists two years ago today was given the opportunity to appeal or agree that decision and she chose not to she accepted that knowing it would be only h h s calls and that she would not be answering calls for other departments importantly she's never asked the county's program disability manager for any accommodations nor has she testified in a proceeding that she's unhappy in her current position in fact despite her attorney's claims that she has not been reasonably accommodated in suffer future harm she never testified live at the bench trial and when she did last testify it was in her deposition in february of two thousand and seventeen and she testified in direct forty eight she was asked with respect to your job in mc three one one are you unsatisfied with your current position for any reason answer no one point that i also wanted to make regarding her accommodations which council claims are not reasonable accommodations they it's curious because they're expert at the first trial to meet richardson  basically recommended as alternative excuse me as an alternative accessible solutions these same two types of processes what ms richardson proposed to thirty two to thirty five was too alternative solutions where the county would take information that was stored in siebel and provided training as a team either on a form in excel or on a web page richardson testified that the information on the excel form or web page could interact via a web service to integrate that data back and forth so the county did develop the excel spreadsheet which allowed to research the k perform her job duties answering questions she had problems with the caption scrambled letters that show you're not a robot so the county even though that was inaccessible solution because there was an audio to it she was having trouble with and i think judge chaz now his opinion doesn't mention but chris daniel testified at the trial at j a ten ninety seven that the reason she was having trouble with the capture was her trouble hearing it so the county in response to that went to the second process that had been recommended by ms richardson which was the web process which is the internal web accommodation application b s she can submit the service request doesn't have a capture she helped test and she's testified it's made her job duties easier the county invested four hundred forty person hours to develop build that the court the plaintiff has failed to prove that there is a danger of a recurring violation here they fail to prove that the district court abused its discretion in its findings of fact or application of the law under the rehabilitation act the county reasonably accommodated it restructured the c s r to position to fit her capabilities and skills and it has a contract in place nearing completion for ip sixteen with respect to the gregory case relied upon and i think the court has noted there's little support for that and in that case there was also a discriminatory policy practice and procedure that was continuing at the time of the court's hearing where there had been a proxy i think it was thirty vacancies for a deputy sheriff position women had applied many were thank you your honor it's interesting i find counties argument today to be compelling reason why there needs to be an injunction the county remember would allow accessibility it's it's simply if someone gives it to us we'll do it rather then we are going to make this happen she did your honor but she said i was i guess i took very careful notes and he said if oracle follows through on its representation so no no is stating and even today that no t i would also the county represents that israel as a tin can perform her job and that's true she can perform the job she has as as it has been sort of narrowed from what everyone else knows you know and it was the county that maintained all of these features were essential and and now is saying well it doesn't matter that she can't do them  but as with the possibility of of promotion and what with the county has done is strip away most of what it called the essential functions of the job and i think to say that well someone could get promoted if they haven't answered calls in this cheer to h h s category is is really very different from saying we would promote somebody  who has performed nano and she has she has not to date you're on it but it's really very different than she's she will have done none of the entry level material she won't be able to tell anybody how to use this siebel system she she wouldn't be able to go through the maps and her performance i once this case terminates without in order the county is free to do were not do whatever it chooses and we think the record clearly shows a track record of doing very little i see my time is