eleven morning the court will take a ten minute break after the conclusion of this argument and before the beginning of the argument and start at insurance mr coffee matter of law and district court held that wal mart proved that accommodating hedican in the assistant manager position would impose an undue hardship it is your core erred on both of these grounds now as to the issue of reasonable this context is that although an employer does not have to offer an individual his preferred accommodation and employer doesn't have to offer an accommodation that reasonably preserves an individual's a job opportunity i that since those decisions were not in managerial positions they were just not a reasonable accommodation your honor the answer your question is no he had no obligation to engage in this case and that's for for two reasons st one is a herm the human resources manager offered was the ability to apply and she made it very clear that he had the ability to think that was a reasonable conclusion that mr haddock inge roof from the conversation because she said what is a zero dollars ten cents specifically was tell me of any other job that you're interested in and i can assist you in submitting an application and then  is is there any indication that mr hedican would have accepted such an hourly child if one had been offered without the need to go through an application process  there is no indication one way or the other but because we're on summary judgment any reasonable inference that could be drawn out eleven dollars way or the other of course summary judgment is the put up or shut up time in a lawsuit and so if this matters one would expect the plaintive to offer evidence about it well it went what matters for purposes of whether it had if you had a legal duty to engage with lower is what wal mart offered in  the st place there is i did the best i did counsel please you know i didn't ask about whether someone had a legal duty question i'm asking is whether of this matters whether the difference between being given an opportunity to apply and being told the position is yours if you want it matters it might matter if hedican would accept the job it doesn't matter if hedican doesn't want this job that's why i'm asking what the record shows about whether he wants the job i understand in the record is silent on whether he would have wanted one of these lower paying lower ranking jobs but what we are saying is that it would be a very strange rule somehow carry out that on reasonable offer now of course if an employer offers something that's reasonable or even something that would require participation to determine whether it's reasonable then perhaps there would be an you have to start ground zero your honor is our position that it would not have made a difference because our principal argument is that if an employer can accommodate someone in the job that it is offered them and that and not demote them then an employer should try to do that now i understand in this hypothetical you posed it would be a much more difficult case for us and the good news for this court is that this court doesn't have to reach that or address what will happen in that hypothetical because to be reasonable it has to not unnecessarily or unjustifiably diminish someone's pay and job opportunities in that really does whoa from the text of the statute and from the decisions of this court including right versus runyan rodriguez versus city of chicago and order versus city of chicago which also held that the accommodations there were reasonable but only after emphasizing that they fully preserved the individual's a john status and all of those reasons this court made clear that if the accommodations had not preserved the individual's job status a much more rigorous or much more searching inquiry would be necessary to that essentially means it would not be susceptible to a summary judgment disposition and who under the standard that an accommodation must not i'm justified we diminish an individual's employment status what wal mart are here was not reasonable as a matter of law because when wal mart was presented with head akins request for accommodation it decided to rescind his job and tell him he could reapply but warheads who readily available alternatives one being just to simply offer him one of those lower paying lower rent in jobs which wal mart has not identified any countervailing hardship or engine the unions whatsoever as to that option and then and then you know the other option would have been to simply try to what we're saying is that because wal mart had at least one if not two readily available alternatives and they'd better preserve ten akins employment status and wal mart was unjustified in not offering those then wal mart it means they jury could determine that wal mart did not offer a reasonable accommodation i think the other aspect of this case as we've already touched on is the issue of cooperation  and whether he can was under any duty so must the court has additional questions about that or about the reasonable accommodation issue i can move on to the under hardship issue in this case j letter of search is granted on any of those cases so with respect to the under hardship in this case now under hardship is an affirmative defense and so for wal mart to obtain summary judgment on an issue in which it has an affirmative it and which it has the burden of proof excuse me it's evidence must be so overwhelming that the only reasonable conclusions of draw is that any and all of the accommodations and most once a week for a fluctuating sunset time would pose anything more than a minor inconvenience on the store manager similarly a jury would not be required to agree with wal mart that voluntary shift swaps were impossible here because wal mart's arguments on that point are based on the speculation of its human resources manager who just assumed that and he can score workers maybe not required to actually try to put together a draft schedule to see if it were peaceable we're geniuses in that there was some categorical rule that they would they had to implement a hardship but actually voluntary shipments were only one possibility here i mean there were at least two other ways that wal mart could have accommodated and again it has not shown as an undue hardship one of those is the use of paid time off which is really is quite interesting in this case actually because the human resources manager just assumed she was under the mistaken assumption that mr hedican would not have any paid time off but that's actually not true the record shows that he would have had some aides i'm off and he never those human resources manager never asked anybody whether that was true or not and so and warren has never said that he couldn't have used at least some example there are cases about individuals who want to take up thursday offer a community college course and that apparently been possible here we just don't know because there's no evidence in the records from wal mart on that issue  so you know of course a human resources manager isn't required to have any specific questions but it would help if there were some tenants in the record from wal mart on that point and i of forty five seconds left mr baio and may please the court jeremy violent on behalf of wal mart here owners there really are only two issues here and you need not go past the st and that's because wal mart fulfilled its obligation under the situation seems to me that when wal mart formally rescinded its offer and said that he could apply for another edition even if it was him was in no better position than the st time after kids your honor i think he was but to take a step back i think the government has misconstrued the misconstrued the timeline looking at mr haddock hands on deposition several other positions that could accommodate mr had a camera and he expresses no interest in them only after not hearing anything from him that the following week that they close out the hiring process that mr hedda can decided not to complete it wasn't wal mart that right least spoon we've provided this in special appendix one through to he talks about how these positions are very similar they're both managerial positions your honor he's hourly supervisors they oversee departments they manage  employees and so there's nothing about the prestige of these of these different positions that make this so unreasonable that he doesn't even have to like open a dialogue with wal mart the nd thing about pay is well what is the record actually say about hey there's four things the record says about pay one salaried managers work eight to twenty hours more per week than their hourly counterparts right they work substantially more than the hourly counterparts to hourly supervisors can get overtime three hour early supervisors can get a bump in pay for experience and then the only evidence on the record about what the difference of pay is if it's a small decrease but again you're working many fewer hours and like the  back on reasonable miss your honor there's nothing about offering the most comparable job by the e e o c is admission in the store is that there's nothing about that that makes it so unreasonable the mr who came doesn't even have to engage to figure out what the final people will be i just don't on their sat which happens to be that of your honor it may have been in the hayward this is like you need for the hayward wisconsin story the fact that he was applying at the beginning of the summer the busiest time and they would be treated similarly in the story on they would be treated in the same way you see i was just a discussion of the reasons why it would be a hardship for wal mart to accommodate this terrific strike me as reminiscent of the reasons why for many years believe me i know about this and wireless did not think wrong but there's insufficient evidence record or record evidence about whether it's possible we have provided in the special appendix starting in say seventy six dollars the actual schedules for two years of the manager's right and we have provided mathematical proof the manager who worked the fewest saturdays works forty eight percent of the saturdays and the manager who worked the most saturdays worked over eighty percent of the saturdays and as this court held in bad no sin wal mart is not required to nor are they able to force other employees to work on his behalf which leaves him with the opportunity of perhaps trying to do a shift while what you'll find in a special appendix seventy seven dollars and on words is more time off requests thing can be grand it's just not possible that he would get off every saturday that he would be able to get off twenty four dollars more saturdays than his luckiest next assistant manager and if not if there are more requests off thank you be granted which is both  exhibit seventeen but also a mr buck's deposition show that it was not possible to accommodate him that position although they found a very comparable position to to slot him and i wanted to say one thing about the night managers vs the day managers because in this kind of situation to do a trial run to see if for x the full schedule can act really were no your honor i mean her i mean we fundamentally missed disagree with the government that und hardship even comes into the analysis unless you can reasonably accommodate them since there's nothing on reason about how wal mart accommodated them you don't have to make it onto hardship but going to endure hardship your honor the fact is we provided evidence to show this mathematically impossible and even if it's not mathematically impossible the government just fails to engage with the other on the hardship issues of camping mr how to can in one position and not allowing him to rotate so basic question here is whether or not wal mart read a good that individual also go through a paperwork process and if you read mr younes deposition it's very much about when you're going to slot of a new position not if they're going to slow them in the position and the other thing i would point the court's attention to is the c f forty seven a fourteen through fifteen were missing your and talks about how she offered to help him through the process the government says that she said she said use go fill out that application but she offered to help him through the hiring process and yes you know mr urine is the h r market manager she is the person who helps hire the managerial staff she's the one who schedules the interview she's going to help them through this process just like she helped you clear gentleman through his process going back to the reasonable excuse me the new burden points as i said there's the night managers and then there's the day managers so on the night managers there's only two night ministers the underbite of evidence on the record as you have you have a night manager there on friday night or else the store is not recovered and not properly stock between two of the busiest days of the week and so if you only have two night managers mr head again is never able to work on a friday night that means that the other manager can never be sec can never go on vacation and can never take that day off or the alternative is that wal mart's left without their night manager and that's on  hardship on that and apart from apart from that possibility i take your point judge wrote your apart from us in possibility there's also this issue of on your hardship by capping him in the night manager because position in perpetuity he's never going to be rotated through all the positions and is under budget in the evidence that wal mart wrote they're magister all the positions for a couple reasons one so they can be prepared to be store managers and two so that they can fill in for all the other managers numbers and how the whole store works the problem is not all of wal mart is open at night there are several key functions that are never open at night including the bakery the deli the money center and you know there's a lot of talk about in the sporting goods section new manager support for firearms and hunting licenses and none of that is open at night so that's going to hardship the wal mart because he's going to be unable to rotate through he's impeding other people's progress and he himself is a less valuable as a manager than otherwise during the daytime so we have sixteen wrong  instance in wal mart look into whether or not one of the other managers right want to be a night manager think i don't know that i fully understand your question your honor they looked at the scheduling i'm not sure that they polled any employees to see what positions they wanted it's great if you have to circle everybody through all the positions though a well rounded and they ended that practice of not rotating them and so that's why we have really good evidence about the new hardship if they don't rotate on the daytime side again looking at exhibit seventeen and mr buckstone testimony so the government called this evidence speculative i don't know how you can say having a declaration from the very person who made the schedules and speculative it's from his experience of running a store for many years and in that declaration he acknowledged there was impossible to give someone every saturday off and if you look at exhibit seventeen i went through and counted up all the times nannies are unavailable on saturday the time they ask rockets i'm neurotic store and speak team percent higher on saturday than any other day saturday is particularly difficult for this burden and it would have been an undue hardship to a convent accommodate him in that position you see at least in the abstract it seems possible to me that there might be other purposes to managers who w i think we can because there's more time off requests thing can be grand so i think we know that the supply and demand we know what the supply and demand stories and the other thing are it seems your honor if you don't i'm not persuaded by that that still doesn't resolve the empty hardship problem that we have of not being able to rotate him through all the positions because he couldn't even fulfill all the daytime positions because a lot of those positions require someone to be there and least in some some instances that's the sporting goods that's the deli that's the bakery that's all undisputed in the record so you might be able to dollars just three very quick points as to the reasonable accommodation issue mr violent has a point it's you cases where there was an offer of lower pay or an application process as an accommodation but in all of those cases it was go and still be deemed reasonable the other point is that the rotation of practice that mr biden talks not that we're saying we're not preclude wal mart from rotating mr haddock it he could have worked a sunday through thursday schedule to begin with  really would have been rotated once a year at most and then he could have switched to a monday through friday daytime schedule or he could she have to a different area of responsibility who want his just not minutes burden on joining that any and all of these before calling the next case