i'm counsel for the talent mrs joan ryan i'd like to reserve five minutes for about three hours today i would like to only make one point and that is that if you give a flying women a cane to help her across the street you cannot because it is inconvenient or burdensome that is exactly what happened to unwrite it was unlawful and the district court's ruling is a violation of the public policy of the statutes as well as basic morality the application for s m l a leave in the medical supervision and this isn't run received for that was for a medical condition unrelated to her blindness unrelated to the commendation that was being that is the subject of right was provided the necessary medical adaptive equipment such that she was able to enter clear information into the screen during her job performance while she was given that equipment costs of about two thousand dollars i think but then it will take a look at the record and respond to that on the bottom as example but the key legal question here for the court is that is whether or not an employer be rescinded accommodation without some change  i think the deferred to the employer does and says that she wasn't given in the commendation it was more tolerance and i'm i'm sure is how we draw that line say you have an employee who can't do the job anymore but it's hard to get somebody as a replacement so you keep that person on and just tolerate the fact that the person isn't doing a good job and then at some point if it gets intolerable or you can find somebody to help out how do you just english between that situation and an accommodation where the employer says ok as accommodated you're performing all the essential functions of the job i think that that excellent question because if that were the situation here if it were in fact that miss on ryan was not competently doing the job and that the hospital was just trying to hoping together bit that would be a different situation they would be fairly within their rights to bend discharge the employee if they're not meeting their standards but during the accommodation that was interview made by the medical center lacks some genuineness it's as if you're trying to say that we're going to try out as a temporary solution for fifteen months this commendation but if the medical center as an employer wants to provide temporary accommodation the case was very clear that temporary accommodation need to be communicated to that employees that the employees know their circumstances and what they're in but to allow employers to secretly hide their intentions and determine at their own when when they're ready whether or not an accommodation if you are allowed or not is contrary to the clarity stop of the purpose of the a purpose is to establish a clear and comprehensive national mandate against discrimination and to allow employers to whole other cars and keep that secret employees would have known no knowledge of whether or not they are tested against that discrimination and it would be difficult for courts and for employers to determine when and whether they are obligated to provide those accommodations here because the district court found two things one is some physical presence by ms on right and i think during the during the fifteen month period i think she was providing some physical presence at the  hospital and then the other the other part of that was a set him predictable schedule and least overtime that was not being met that the the ascent essential function here is some physical presence and predict predictability and what what's the what's the legal error or the clear factual error in the district court's conclusion on that refers to her daily work schedule as being required so the sample presence was a daily physical presence of the dish report parse the number of hours to the national center wanted to be closer to upwards of six found was closer to four hours per day that were required to be present but that she was also required to be involved in daily roundings and daily meetings with different to the different departments and that was that was the each week there was just flexibility and based on horizon when she would come in when she would leave now there is no evidence in the underlying record of an underpaid hardship or of a change in circumstances to justify rescinded that accommodation  job description never changed nor did the hospital change its business she just they they just decided that they were going to change that accommodation now the reason given by the medical center on that point was that there was a  decrease in the food quality scores for the patients had affection but there's no connection between the flexible schedule that dietician and to quality during the fifteen months of the accommodation the accommodation meant constant but the food quality for rides to and from work that if he was frustrated by the inconvenient the flexibility in her schedule that's precisely the thingy that the eighty eight prohibits as a justification for removing an already granted accommodation for the disabled person is totally beyond the control of the employer right and you know it was as your opponent frames that it's a it's a transportation  barrier rather than something that the employer creates at the workplace or by the schedule and you know i'm not sure whether we can completely ignore that it is there are many employees that will have personal circumstances that would prove preclude them from you know getting to work on time and in this case because she couldn't drive and lived a long way away but you know the employer the employer nothing to do with you know the distance where she lives or the you know methods of transportation you can amass imagine a real chair bound to employee that you know can't afford or a van or something and is unable to get to work regularly because of  under hardship and that promotes the interaction between the parties to find that solution to established rules that undermine the opportunity there for a case by case resolution and in fact in this case it would have it would cause a problem here because for fifteen months they had the parties had agreed that this was a reasonable conversation and it was appropriate this isn't it's not like we're asking for medical center to send its c e o to go pick up news and run every single day on its own their commute to work or to build a bridge over which was an appeal of findings of fact and conclusions of law in or by district judge blackburn and in affirming that decision this court found that judge blackburn quote made extremely and detailed findings of fact and conclusions of law and commended him for his quote conscientious and excellent work today the court again faces an appeal of thorough and detailed findings and conclusions by judge blackburn after a three day trial with seven witnesses and more than one hundred exhibits in this highly fact intensive eighty eight case to be sure of the issues on appeal which are on whether regular scheduled predictable and primarily physical presence was an essential function of misson ranch job and to whether and later withdrawn accommodation of being physically present when ever she could get a ride to work on whatever day she could get a ride to work and for however long her ride could stay and transport depends absolutely on the facts and as a result your honour's the clear air of the clear air standard of review appliance the the st issue that we have to deal with in the  st issue that the district court dealt with of course was is missed on iran a qualified individual with a disability and that has two prongs to it the st is could she perform the essential functions of her job and nd did she request a plausibly reasonable accommodation that would allow her to perform the job and respectfully the district court correctly determined the answer to both of those questions is no on the st point what's in a signal job function judge phillips asked at the beginning of the opposing counsel's argument did a physician acknowledged that writing and computer were are essential functions of her job and she admits that she could not comply with those restrictions and perform her job that's at volume two pigs through twenty six through to twenty that yens effectively the analysis but there is so much more in the record as determined by judge blackburn because judge blackburn determine that being physically present at the hospital for at least four hours per workday and having a set and predictable schedule to ensure quality patient care or essential job functions the record is replete with documentary a regular predictable set schedule was not actually an essential job sumption because one she thinks she performed her job successful but twenty january of two thousand and fifteen and april of two thousand and sixteen and then she says a full time schedules just not required at all and respectfully she's wrong on her st point her work performance was not successful st key she tries to exclude what happened in november and december of two thousand and fourteen which was when she had a driver dependent schedule the district court relied upon the testimony of mr fisher and ryan consistently had scheduling issues and poor communication he documented that in the two thousand and fifteen performance evaluation and he documented it in the two thousand sixteen performance evaluation we know of course that amy lawfully was working as a part time clinical dietician for approximately six months in two thousand and fifteen and she helped miss on ron do her job we have in the record the incomplete menu projects in two thousand and fifteen we had in the record upon which judge blackburn relied the april th two thousand and sixteen meeting where fisher told misson ron she wasn't rounding she wasn't doing her make weekly meal acquittal it see reports and there were decreased patient satisfaction scores and then we have a two thousand and sixteen evaluation which of weighted her for the prior twelve months where she was rated as barely competent on all of these facts judge blackburn found that the witnesses for the hospital were simply more credible then this on ron who remarkably believed she was performing successfully she simply was not that the nd part of the essential function analysis that the court went through and which miss on run takes issue with on appeal is she says on appeal that full time work wasn't required her argument respectfully ignore sixty facts the st of which is when miss on ron was asked at trial by her lawyer what would be the appropriate number of clinical dietitians at the hospital her response was one full time clinical dietician that's a volume two page sixty mrs under an admitted at trial the exact opposite of what she's arguing on appeal but candidly the issue is not whether full time is an essential job function the issue is whether as judge kemp to bitch pointed out whether regular and predictable attendance with the majority not all of it is an essential job function we know from the record that mr fisher supplemented the clinical that titian duty duties during this time period of tolerance and trial and experiment we know that was there for half a year and that helped we know that the hospital tried to replace mizzen rhein with a full time worker but because it's located in fort morgan it had a difficult time recruiting someone so it did the best it could by hiring a locums tenons at twice the price and it couldn't afford to pay more than that miss under an argues on appeal that will she was just meeting the bare minimum s that should be enough and respectfully meeting the bare minimum so in the health care setting should never be the standard and last but not least on this point mison ron's replacement worked full time and the proof of it was that she improved in multiple keep performance indicators so respectfully the district court's factual determination that the essential functions of  job included regular and predictable physical presence at the hospital for at least four hours today was not clear air so judges would go to the nd part of the analysis that's the reasonably plausible there probably are some that could have judged but not all of them and the key tell you why the record is replete with evidence on why physical presence was required for at least part of the debt part of the job of a clinical dietitian is for example to assess the swallowing reflex of a patient you can't do that via xoom call part of the job of a clinical dietician was turned around and go talk to patients about their diet and why their diet was changing now presumably you might be able to do that via xoom call if you didn't have to worry about infection control issues if you didn't have to worry about having someone walk alongside of a zoom camera or a computer or however she would communicate so we have all of these things in the record where she needed to be physically present in the hospital on a regular basis let me has one more question before you get to the nd yes or what was your alternate rating when you say bare minimum is a good enough i assume i would assume that when they say bare minimum it was bare minimum to be acceptable because they didn't get rid of or so what what were the ratings the point that her attorney is emphasizing you know they never told her her work was inadequate they gave the ratings indicated that it was still adequate maybe she could have done better maybe they would have like somebody did it better but you can't get rid of or if she's still doing an adequate job in two thousand and sixteen her performance evaluation overall rating was eighty two  e is bear is two is the lowest in terms of meeting competency there is a three and a four and a five so if she was a point one lower she would have been in the  meeting what do you see in the two thousand and sixteen evaluation is the two dollars is a total score with respect to her ability to provide in the service in the person care she scored at a one she was actually below a competent in a number of areas in the two thousand and sixteen evaluation mr fischer testified that he consistently spoke with  fifty two thousand and sixteen about her deficiencies including for example the fact that she was not completing the weekly meal equivalency reports that were required and she had not done that since january of two thousand  judge the judges the miss miss utterance proposed accommodation really is let me be at work when ever i can get a ride for however long i can get a ride and for however long my right will allow me to be at work it's not respectfully it's not a flexible partial work schedule it is it is a driver dependent schedule that could change at a moment's notice and of course as the court well eliminating an essential function of a job he is not a reasonable accommodation likewise having a regular work schedule particularly in the health care setting is not a reasonable accommodation she makes two responses to that one is the obvious percent successfully performing my job and that fails for the same reason it fails on the essential job function analysis the nd is this temporary issue it is just hearts discussed it and probably more accurately characterized it it's really a tolerance issue we tried it we tried it and it didn't work and the judge judge blackburn's conclusions in in opposit they are factually dissimilar they are procedurally dissimilar they are not from this core and we've not found any support for them ini court of appeals we cite the better cases let me just ask you since you're running out of time in this of him are going to be maybe not you is that you mention the doctor's name and at the end of august th seen in december the doctor says that she can't organ any capacity until further notice and in january he goes on long term disability yes and going on long term disability was or some sort of a concession or a mission that he could not perform the job that you have the judges the judge phillips there is of course and i think what you're referencing there is the cleveland vs policy management type issue there is testimony in the record it's findings of fact ninety six and ninety seven that deal with that issue what she had knitted in her depth scuse me what she admitted it trial was that sheep in her application she said she was completely and totally disabled that is in the record it is in her testimony it's on cross examination just as i see that my  fluid with the timeline when you look down into the facts when you look down and you start analyzing the timeline and what happened and when in the trial you see that a very different picture miss is going render stretching their computer work as judge pretty not can do computer work was tied to a time when after the unlawful rescission of her accommodation the bucket of nit picks that the medical center has identified as as violating her not being a sick successful and her performance is a lot of the fact that she had competent job running one but also is not the level of standard for under hardship or for a change in circumstances and to be eighty eight to justify responding the com formal complaint about a patient missing care based off of her attend his or her performance during the time that she was granted her flexible work from home combination from january th can until april two thousand and sixteen notice there's not a single