when it refused to accommodate beatrice chambers disability and fired her when she attempted to return to her job in the g i lab at the hospital following shoulder surgery on a medical leave the commission offered evidence to support a finding sufficient evidence to support a finding that chambers was a qualified individual who could perform her job as a licensed practical nurse or tech in the hospital with either of two reasonable combinations  well i have a application here it's very it's a one page form she checked that the date of her return was unknown and that was all she put on her claim and her diagnosis left rotator cuff tear her doctor put on his form that the date of temporary total disability the the end date was known as well and it was those statements that the district court believed stop the commission from arguing that she was qualified within the meaning of the a d a s however short term disability is attached is a temporary safety net for short term relatively minor ailments the court applied cleveland vs apology policy management system to this case to just mess the claim but the cases are very different first of all cleveland involved permanent serious disability lafe lasting more than one year and statements and applications made to the social security administration the court in that case found that the two claims could exist side by side because of the different definitions of disability in the social security act and the a t a i similarly here in short term disability policies because they're not  designed to have the employee go back to work but to recover for a brief period and then go back to work short term just of all short term just about ability does not invision reasonable accommodation when the other paid unpaid period of twelve weeks and she had two hundred forty five hours of sick leave remaining at the time that she was fired yet she was not permitted to take an additional two weeks of leave which is the first reasonable accommodation she requested when she realized that her shoulder was not completely healed and her date of return was slightly earlier than she had anticipated i mean just replied that there's fact is she but i don't understand how the doctor could have released her to return to light duty were pushing him pulling exceeding ten pounds and then said she's tempered totally disabled and then he didn't release or to return to work until december eleventh well the key to that your honor is the fact of reasonable accommodation the short term disability application didn't ask whether she could perform the job with or without reasonable accommodation at same time that the doctor released her to work with limited use of her left arm he signed off on our short short term disability claim after she had been fired and been told that she could not return to work so the commission offered substantial evidence that there were two reasonable accommodations reasonable on their facts on their face and the reason and the run of cases that would have allowed her to return to her job with full full use of her arm two weeks later or by modifying her duties slightly during the two weeks until it took to recover her but she never asked for that seasonably for the short for the modification right well this court is held in chevron october actually your honor the timeline is october seventh is when she met with washed watson in the h r department she encouraged her to go got the additional two weeks of leave sandra agnon denied those two weekend holiday so the next day i think it was the eleventh that the dr porter's office actually submitted that was the eleventh the return to work with limited use of left arm and the pushing and pulling restriction of under ten pounds and there was some discussion of what to do about chambers but no one called the doctor to get clarification about what limited use of left arm might be instead pat waltz in the following day she had talked to her boss and they weren't going to let her come back to work and she'd already been replaced so that was the twelfth then on the fourteenth she received a official letter of terminations and from how harrington who's the head of h r cid stating that they could not extend her leave and for that reason she was being terminated effective fourteen so that was the day one of the clear they offered her a clerical job shortly after her surgery in august of two thousand that will happen chambers testified that that was the only time she was offered a job and her doctor said he was not ready to release her to work at that time even  to do clinical work it was too soon after her surgery it was only she said she saw non after she'd had her stables or move and she had asked when she could come back to work so using  after so that was never reiterated to her at that at least that the evidence suggests that she was never told again that that was an option at the time of her terminations she said to pat watson i'll see you on the thirtieth assuming that she would be going to work that day she also testified that she was shocked to receive the phone call telling her that she had been terminated so she had been offered a clerical job she would not have been shocks in addition none of oh did she raise it she did i'm not clear on whether she raised it she submitted their return to work with limited duties to a clerical job would've accomplished the same thing and the  when she said she asked for the two weeks of leave to agonize and she testified that i got through the paper back at her and said just that i'm not signing that as she never said well remember you have a clerical job open to you why don't you do that in addition watson and h r never mentioned the possibility of a clerical job at the time nor did any of the official entries are all our documents from the hospital ever mention the fact that she had rejected that how do you see argue this in the district court when they filed the motion for summary judgment summary judgment yes and i get to this other issue in a minute but they  were the all e e o c said was something like it's not fair to allow what the district court says is the only explanation that the e e o c offers the fact that chambers applied for total disability after her total temporary after her determination on october twelfth the circuit rejected the sufficiency of the explanation is that all the e e o c know your honor that's not accurate at all the commission are geared in its opposition to summary judgment three if that the two being qualified within the meaning of the a d a s was not mutually exclusive with being disabled within the meaning of the soche of the short term disability benefits policy the commission then went on to say that the application that was submitted did not mention anything about reasonable accommodation did not ask about reasonable accommodation and then offered substantial evidence about modification now the commissioner offered evidence from chambers coworkers that they had not been overburdened in the months that she had been after all a leave and that it would not have been difficult for them to cover for two additional weeks the commission off also offered evidence to the district court that the job that chambers performed was more akin to a tech job and not an lpn job and did not work quire heavy lifting or a lot of physically demanding work that was to show that the modification that she requested would have been a reasonable accommodation now the court held in cleveland that to explain any apparent inconsistency between applying for disability benefits and stating that you are qualified under the a you are required to offer evidence from which a reasonable jury could conclude that notwithstanding those statements reasonable accommodation was possible and this court has also said you were required to make a particular showing that reasonable accommodation was possible through all this turn on whether the duties of the job required are to live twenty six to fifty pounds was issue which makes would make summary judgment inappropriate on that issue given that the commission offered evidence that heavy lifting was heavy lifting was not a part but even if i was going to say even if even if it is an essential function that does not and the commission's case because chambers also requested two weeks of leave and i am a personally i have a problem about that because the law says that an employer only has to give twelve statute and i don't i'm not sure what the authority but i mean my point is that you know before the family they weren't required to give her any time i mean they weren't required to take her back after surgery at all  you came to them and said i have the rotator cuff weeping and they say we think you need to be able to live these have moved these heavy patients around and so on when we're going to give you three weeks to recover but then we don't know what's go what do you do about this your case looks really good unless you look at mr bronner's note and realize that the district court excluded those but they would come in on trial would they not right  and she is telling mr braun or it seems to me these are admissions against interest we did after live twenty six to fifty pounds with regard to moving these patients around all the time well first of all browner testified that she told them that notes right well that's why we that's why we don't want them to come in because we need to clarify what he actually meant and what questions were being asked but even if she did admit that if there is ample evidence in the record that heavy lifting was not an essential function of the job for one thing her coworker testified that they rarely had to lift anything never had to lift anything more than ten pounds she also performed her job injured up until the time of surgery for at least several months without any any problems or any write ups and so that's just that heavy lifting was not a huge part of the job we also introduced evidence that it that the main duties were more washing scopes preparing the room not patient care so even with bronner's notes there's plenty of other evidence that that heavy lifting was not an essential function of the job so the case would not definitely not turn on that your hon court focused on there was there's actually two inconsistency in the applications for temporary disability benefits one is the obvious one in which both the doctor and miss chambers were saying that she was totally say that is obviously inconsistent with saying that she was a qualified individual under the idea but the second one that is also very important is that they stated that the length of the disability and the duration of the incapacity was unknown now this is also inconsistent with exactly what she was asking for her accommodation if you listen there's a whole lot of discussion where you read in their briefs there's a lot of discussion about that all they were asking for was a two week long extension now the record itself shows that that is not true because miss chambers testified in a deposition that she actually had to tell them that that will get me to my next doctor's day but i don't know for sure if i'm going to be released or return to work well the biggest inconsistency to me with regard to the disability benefit application is at the same time she is saying that she can come back and return to work in two weeks the very next day after she's terminated she says it's an unknown duration and that's not the only one that we had let me ask you question do we have the terms of the total that disability policy in the record we do not have the terms of the total disability policy in the note that make a big difference does it make a big difference in the cleveland line of cases because if you look at the cleveland line of cases it looks at the representation itself and not necessarily whether you got the benefits or not with a court looks at what did they say and what are the factual allegations are made in those representations and that's the key to cleveland the reason that cleveland works is because you're looking at a stop and you're looking at what did somebody say and what did they represent that was different than what they're trying to represent online i mean maybe i'm wrong but i thought the supreme court was saying in cleveland we all know what social security disability is about you know five points and all that business they disabled from performing their regular duties or their job or any job so on and then but the court may require them to make accommodations and then they can perform and i don't see a real significant difference between that in this situation here well i don't know that it matters what the actual policy said as to whether you got the disability i mean there it is in the record that she did get the disability benefits so she was around to be totally disability got it for two weeks or i did it and so that's why i was just wondering if there's so called total disability with in some kind of alternative mode or something  for example in the ninth circuit in two thousand and six the fuehrer case there was a case there in which they talked about temporary disability benefits and in that case they applied cleveland for one cleveland clinic cleveland apply for coal disability on the social cured they did cleveland it was total disability under social security but if you look at the language in cleveland it just talks about disability benefits in general and it appears that the case  let me ask you a question if this were good to go to trial and all personally i think this whole issue about what were the choir into the job this fact a human differ we're going to go to trial couldn't you argue that she claim couldn't they say well she only got two weeks which is totally consistent with what she was saying about give me two more weeks or give me light duty they might could say that but then as you pointed out earlier she actually wasn't released to return to work until  would the hospital have been required to keep her on light duty all that time they that could have been considered as a as a reason or combination but again that makes you something that they get past the cleveland analysis and the cleveland it's based on what judge perry found is you've got to provide an adequate explanation and you had some discussion up here from counsel opposite about the explanation they claim they offered at the district court well if you go in and look at what was actually given in the briefing and it starts on page thirty three of their response it's basically just two paragraphs one paragraph that says yes we do think that cleveland applies but it doesn't make it inconsistent to apply for disability benefits and the only explanation they gave is exactly the explanation that your honor read that judge terry found which is that it's a timing issue that because she applied for the the benefits after she was terminated therefore she should be penalize for applying for those benefits well i their request for all argument their request stated that they believe that cleveland should not be applied beyond just the disability that it was applied to short term disability benefits and that was going to be a unique and novel expansion lie out there that is directed exactly the opposite cleveland works that analysis works it's been applied in numerous different types of situations and the reason it works is because it does provide an out for the point if the plaintiff claims that they  their subsequent misread or their subsequent representation on disability benefits for is consistent they want to say that it is consistent they have the option of you provide an explanation they had that opportunity here the explanation they gave is one that was completely overturned by this court in reading and even if you go to the stands where you say that well they should have considered the reasonable accommodation or are they the disability application didn't consider that  reason or combination in costly which this court sat in two thousand and fourteen that is the reasoning that they tried to give the plaintiff in that case try to give the reasoning to say that even were an application includes only a legal conclusion you have to give an explanation only explanation it was given at that time was a statement that they had a good faith believe that with a reasonable accommodation they would be able to perform the job in this court found that that was not an adequate explanation and so even if you adopt the commission argument today to say that though we did make these arguments even though the papers would show that they did even if they were to make those reasonable combination arguments that's still not enough that was just based on her good faith believe she could do there is not any other proof in the i guess it's because they were moving around i don't know the extent to which they had to move around obese patients they had to move but they may have to move them onto a gurney onto a table they had to get on the gu themselves some may and some may not or that sometimes these patients are sedated and they have to be moved while their size the dated well i know they're not sedated when they get are i mean i pretty so they sedate them in one room and then move them into the procedure room on a gurney and then transferred that that means there are two beds for every that answer makes sense well they may be sedated while they're on the table but were guarding us with regard to the essential i'm saying i don't think they have to move around them well the essential functions of the job functions and you've got not only the testimony as you point out the notes but in the testimony of the e e o c zone expert he testified that it was part of a position that she had a part of the job she had to accomplish testimony i think again this would only come into effect if they got past the cleveland announced some in this still doesn't affect the fact that we were granted summary judgment based on the inconsistency in the lack of any adequate explanation but if you did look at that we've got not only the expert that they had dr brar that said it was an essential function we've also got her own treating physician who interviewed her and talked to her and knew what the functions of her job work only was willing to say that she could go back to late he said that she could go back to light duty but it's actually if you look at that that exact record that talks about light duty it also talks about the fact that h her incapacity was unknown if you look at in the record it's eleven o seven it's a certification of health provider it talks about the incapacity and again this court has recognized as most courts have that if you can't show a duration of the incapacity that any kind of request for leave or unlimited leave is not a reasonable accommodation in the owens case you had almost exactly the same kind of facts as you have here in the  she said was that she testified the two weeks would get her to her doctor visit but she also testified she had no idea when she could return to work and that's in the the record at seven zero nine seven ten and at nine fifteen and sixteen  that case it's similar what she had and it's in the owens case you had and an employee who called and said said i need two weeks off to get to my doctor's visit and i expect they may release me to return to work i hope that there were at least a four  me to work but i can't guarantee it and what this court said was that was a request for indefinite leave it was not an adequate basis for an eighty eight claim in this case you've got all over the record where it's just constantly said i hope i can return to work  expected i planned on but there's no there's no proof in this record and you can look in all the doctor's notes you can look in the depositions there's nothing here to say that mr chambers ever said i will be back to work on x day and so therefore the two week kind of allusion about it was only a two week or quest for additional leave is not adequate i mean because the explanation in the record for why the employer didn't renew the offer of the clerical there is no evidence in the record that clerical there was i mean and that's unfortunately they dispute that it actually happened a second tat but we've got proof from miss agnon that she did offer it a second time our question of fact about that would be a question of fact but the more important part about that is there is no question of fact that if miss chambers thought she could just return to work whether with light duty or not why was the only request for accommodation that she asked for to be an additional two weeks and that is clear from her deposition in her deposition she flat out said that the only request for accommodation that she wanted and that she requested was for this additionally the additional general medical there's not any discussion from her in which she said i would request light duty even though she had been released to return to light duty by her own physician now this is unfortunately for their case the same position that two or three days later said that she was totally disabled with an unknown date of return and bring back to me that and to the case law that's the most important thing and that's what cleveland is important and why there is not a doubt the cleveland can apply to cases involving short term disability benefit if you look at i mention the case from the ninth circuit but if you also look at the of the cleveland analysis and looked at judicial stop and it talked about how the important part of this analysis is where there's an alleged prior inconsistent statement that affects substitute subsequent statutory claim s and so in that case they help with the cleveland analysis applied and there's no concern no mention no hesitation at all because it's your turn to look for and the court determined in that case which he had is the employee said well it was the employer who determined that i was disabled not made and so in that case the court said that's not enough that the statement to the short term disability provider that he was unable to perform the material duties o occupation same that you've got here if you look at the very bottom of that form that miss miss chambers doctor filled out and she adopted by looking at it not changing it and setting it in it says at the very bottom that she is it's a totally disabled from her occupation and she reviewed that and submitted it to the doc but in the mcfarlane case it says that that statement that claim and the claim that you are able to do the job crash into each other i mean that flat out says two claims crashed face first against one another and the first the stops the second or about the guy in the gas case that was a case in which cleaver was applied and that shows that cleveland is not an insurmountable in that case the court came out in that case was one in which you dealt with the disability pension it was a disability application and that shows that cleveland can apply to other types of benefits just mean besides just social to disability and in that case this court looked at it and said you know here they did provide a detailed explanation and they found that that was an adequate explanation in this case we have no explanation as to why you know in within the same almost ten day period you have an employee who says i can i want just two weeks actually or i can return to work with the raise more combination and the very day after their terminated they've got both their doctor and themselves saying that they are totally disabled for an unknown amount of time there is not any explanation in the record about that this but i do not only do so able she would only provide more but again that the representation that she made to her short term disability insure was that she was totally disabled that's the inconsistency that cleveland shows she has to adequately explain what is a temporary disability policy was it a temporary disability policy it was a temporary disability p but as is shown in the book following case and in the in the fuehrer case the fact that it's a short term disability policy doesn't matter what the courts focus on is representation and the represent but i mean in cleveland the plain and this is when you have to look at it at the time of the adverse employment action at that time you look at what this person is saying that is inconsistent in a list for you fired her you have this statement from dr porter and i'm looking at  record excerpts numbers sixteen and seventeen because they're so but as i see it he signed something on october thirteenth that said she could do light duty next appointment scheduled ten twenty eight will be evaluated at that day and says light duty so and then on october eleventh he also says release for light duty so you know both eat from your standpoint people can say ok release for light duty why was light duty not available at that point well we did offer like do that and it's under speeded that we did offer the light duty now there you heard you when you tried law you're talking about two months earlier the clerical position it was off well i mean could she have gone back i thought her doctor wouldn't let her come back for the clerical work she testified to that he would not let her do that at that time but she could have done that will later on when she when she returned she did made no mention of that whatsoever when she came back because the only request that she made was for additional time well but but but that interactive better doctor statement says no pushing pulling lifting more than ten doesn't that doesn't that at least constitute an implicit request for that accommodation we would say it doesn't primarily also because it says in that same record it says that the incapacity is from joe out twenty first two thousand and eleven two unknown and again it also says pay should be evaluated at this later date which is october twenty eighth it doesn't say she's going to be released to return and the case law with regard to requests for indefinite leave talk about that you've got to give some sort of end date for the incapacity and in this case she couldn't give in and date for the pats on the summary judgment standard we have to still has to show that there's an adequate explanation for these inconsistency between what is done and i assume my time's expired and i finish my that you have to give an explanation for the inconsistency between the  as an explanation now they can come in here today and say well here's what we believe in the in can here's the explanations but it's a summary judgment standard they did not give those explanations and that was the time that they had to give the explanations thank you very  so when what the defendant isn't reiterating is that the application was said she was temporarily totally disabled that's the only reason we said that cleveland wasn't a perfect fit with this case because by nature her disability was short term and not serious as opposed to most of the cases where this is an issue however cleveland the plaintiffs actually was found to have said i  to work when she applied for permanent disability and the court held that she had given enough of an explanation and that normally these two kinds of claims can exist comfortably side by side so cleveland actually would dictate that in a case where a disability was much less severe and it's not obvious why there would be a conflict given the nature of her surgery and the expected recovery time which agnon was a nurse and knew that she  rotator cuff surgery knew that that she had been making steady progress because she had been reporting that to the hospital and the commission did in its brief discuss the fact that the short term disability policy never asked about reasonable combination and then went on to argue extensively the evidence that she could perform either of the two read small combination perform her job with either of the two reasons all combinations she asked for and that is the test under cleveland and crossley whether there are facts that a reasonable jury could could clued from that the person was qualified under the disabilities act those two are different statutes i'm looking at two things i mean frankly dr porter seems to have been willing to sign more or less whatever was put in front of him i don't think he was well he testified that he expected her to be on light duty and till the twenty eight that was his testimony but what i'm looking at the record excerpts sixteen and seventeen and on number seventeen it's just a plain old turn to work slip on light duty the river read river region form no lifting pulling blah blah october eleven october  thirteen describe the medical facts which support the certification rotator cuff tear state the approximate date and probable duration of the patient's present incapacity seven twenty one to know will it be necessary for employee to take work only intermittently or less and full schedule if yes what schedule is recommended light duty are additional treatment yes the next appointment on october twenty eighth so basically he's saying unknown light duty now why could the employer not say that we do not have light duty available until an unknown date was she asked for two weeks of leave and then come back with light duty that the nature of her disability was a predictable outcome it was a routine surgery we've we have colleagues who have rotator cuff surgery and i mean the hospital would have known how long it takes somebody to recover from rotator cuff wrecked but th the hospital did not replace her for over a year and in the meantime her coworkers covered and there were floaters in the department so the hospital never made a showing that either it would have been an undue hardship to let her come back to light duty in fact they say they are that that was always an option which doesn't make any sense with what they are going now but the two weeks was never a request for indefinite leave she always had asked for that two weeks knowing that heard what she hoped was going to be her last appointment was on the twentieth and on the twenty eighth her social her short term disability benefits were discontinued because she was released without restriction but even if she had so at the same time dr porter is releasing her to light duty and saying limit lose use of your left arm he also testified that she could do most of her job just take it easy knowing that she was making progress going to physical therapy that she had been able to do her job before the surgery and the months before she'd been able to get the surgery when did he say she could actually do her job if you took it easy he didn't say that all he said when he was asked what is light duty what do you mean by this when you put this he testified light duty means light duty to take it easy don't use your left arm too much that was in his deposition but he also testified that she said her pain level was reduced after the surgery then before the surgery yet in the months when she was injured but before she had actually had the surgery she was doing her job she testified she had not taken any leave in relation to that injury which shows that she could actually do her job with or without a reasonable accommodation and cleveland again says that if you explain that there are reasonable accommodations available which the commission did in its brief opposing summary judgment then that would allow a reasonable jury to see that notwithstanding the they made on a short term disability policy saying temporarily totally disabled until unknown which by nature has to be less than six months then that is enough to overcome this this potential conflict between asking for disability and alleging that you are qualified within meaning of the americans with disabilities act cleveland actually dictates that summary judgment should have been denied this one since you're way over your red light i have one quick  words you saying that these positions are not inconsistent will suppose she got four months of temporary disability and well the i mean you are saying it is by definition four months of additional leave per se on reasonable yes no i would not say that each they had a wire as an individual as the fasten a reasonable it depends on the situation and it depends on the situation if there is a definite return date and the and the employer is not required to hold the job open indefinitely then it can in some circumstances and other parts of her i just have to do for you but she also had six weeks of sick leave that she was not able to liue in use at the time she was terminated your hon