the court counsel john higgins worked at union pacific railroad for thirty nine years as a locomotive engineer for more than twenty of those years he worked his job with the accommodation that he seeks in this case he worked it with the accommodation for more than twenty years that shows that there is at the very least a fact question about whether he could perform the essential functions of his job with an accommodation that is the distinguishing characteristic between this case and all of the cases that defend it relied on other more distinguishing characteristics that's the primary one that's what distinguished it from glaxo smith kline that's what distinguishes it from pickens in none of those cases did incumbent in the job the plaintiff performed the job with the accommodation that they wanted for already for more than two decades it's a it's a stunning fact and it's a that the district district court did not wrestle with at all in its decision so the accommodation is is just not does not come to work excused from  accommodation here no it is not what i would say your and here's why what is it then it is to lay off as necessary when his back is causing the extreme pain that it has it's not about bad faith which is why i said no to your your question i don't think that questions the question wasn't bad faith was of the question was not coming to work is the accommodation well i think there was a which means by layoff yes that's the length railroad speak for layoff layoff means not coming to work without means taking the day off of work when necessary pickens is a case sort of the the primary case that forms  backdrop for the glaxo smith kline case and several the cases that come after it and in that case what fundamentally drives the court i think is bad faith that plaintiff had already sue the railroad and won in a previous case in which he's and then he got disability benefits in which he claimed verda under oath that he was unable to perform his job then he had his doctor falsified their records showing that he was the doctor said he couldn't work he said  doctor falsified records try to make it look like could work and then he sues and somehow he wins and this court frankly i think was offended by that and i can understand that but this case is totally different and that's why i said no to your question judge shepard because it's not about whether or not he felt like lying off it's that he felt pain and there's no allegation of bad faith in this case there's what there is is a twenty or thirty nine year employee who drove a good train who received this accommodation for more than twenty years and the eighty eight is intended to provide greater employment opportunities obviously for people with disabilities and that as the u s supreme court recognized in the barnett case were sometimes requires preferences by its very nature an accommodation is a preference it's treating somebody differently than the rest of the employees what about the twenty four hours between shifts ok that's a good question your honor there is a a document the record i think it's important to this case it's at the joint appendix of five  that letter though there is a request from one thousand nine hundred and ninety three that mr higgins be allowed to lay off with twenty eight with at least twenty four hours between shifts and and it says on occasion and that's exactly what he wanted when his new doctor dr citizen and a letter saying he wanted to continue to receive twenty four hours off when on occasion well with the that's the that's what the case is about isn't it that leonard didn't say on occasion on its face it said twenty four hours between shifts that was sent to him and he didn't dispute that it was twenty four hours between shifts he didn't raise the occasional issue and so isn't the issue for us whether the company was required to read occasionally into that letter no your honor that is not a question for you the question for you is whether the court should read the word continue in the letter the letter says to continue to provide him that accommodation twenty four hours between shifts and mr higgins when he received confirmation of that accommodation didn't respond to it you know in writing because it looked exactly like the accommodation that he had received for more than twenty years but what he did do is he talk but i thought they then wrote to him and said that it's not the same as such only what they wrote to him is something that was not clear and it said it said it given the list of the accommodations that are the restrictions as they called him that that he called it that he needed and by virtue of the fact that it looked exactly like what he had received from one thousand nine hundred and three from that letter that i had you that addressed to the court to  he didn't see anything different about it and what was also in the letter to mr higgins was a communication from union pacific the more recent letter was a communication from union pacific that said we can accommodate these that was the end of the conversation in terms of that job so what mr higgins didn't do is you know in a manner that is totally consistent with frankly somebody who you know doesn't have a college education who was you know wanted time laboring employee was he talked to the  nurse rhonda ross who talked to him about this and he did protest when he spoke to her there are portions of the record that we highlight in their portions of the record with strikes of the transcript of that call the defendant highlights the portions that we highlight say that he's emphasizing that continuation language he wanted the continuation of the exact same accommodation that he had received for more than twenty years there is a regulation that's very important in this case it's twenty nine c f or six and three that is a regulation that fact finders supposed to use to determine whether something constitutes a reasonable expectation an essential job function and the court didn't look at that regulation and that regulation requires an analysis of factors including in the incumbents experience in the job and it's it i think frankly the regulation is intended to cause you to cause effect on to look at the incumbents like other employees in the job because it doesn't even contemplate a situation where somebody for two decades already received the accommodation that they seek that's why there's a fact question i'm not asking the court to determine as a matter of law that mr higgins was entitled to this accommodation i'm just asking the court to recognize that a reasonable jury could say or something significant about the fact that he did this for two decades and we ought to allow the jury to determine whether in fact he had been performing the essential functions of his job with an accommodation for all of that time can you enlighten me about what's this what is the status of this purported agreement that is referenced in some of the correspondence on the railroad and it's referenced in the briefs probably nobody has a copy of it right your honor there was a settlement of a feel a claim that in that gave rise to an agreement that yes nobody has a copy of and of law firms keep their records for seven years this is twenty years later but there is there is a written records in the in the joint appendix and in the record where there is a discussion in letters between the parties about the about the agreement and so there was an agreement the agreement allowed mr higgins the accommodations that essentially continues to want in this case to lay off more than twenty four hours when necessary or when on occasion is the language on occasion and to to lay off on a way off on occasion and  was the accommodation that was that was agreed to in that settlement and continued to be a fact that then went forward in the case and what's interesting about it your honor is that defendant in a claim would there be just a common law claim available with respect to that alleged agreement and also which would bring perhaps bring into play issues like like your client's reliance on on that agreement the terms of the agreement even though even though no one can can produce it would that be a better approach than frauds issue and other considerations that that are just beyond the scope of what the what it is at issue here but under the a political law and under the purposes of the a b a there is a fact question here and this numbers cut off at the bottom so it's hard to find the pages but i think what you're referring to is this letter from jeffrey britton m d correct your honor i want to be mindful of my  approach of rather copy a prop you just wasted ten seconds or you want to approach the bench i would give you a copy of it that i know i'm just asking are you referring to the jeffrey britain letter from marge twelve thousand nine hundred and ninety two when you say page five  four your honor with your permission i'd like to look at my notes and confirm that on my rebuttal or right now they'd be better and they'd be better yes you are yes ok that letter doesn't have the word occasionally in it that's exactly my point your honor that's the letter from one thousand nine hundred and three and it's the same thing that he wanted the same thing that the letter sed said arguably more recently there's there was always a hope that he would get twenty four hours off but he knew in practice he couldn't get it when he was at the other end of the line so to speak he drove from counsel from north pla in council bluffs he just knew he was going to get twenty four hours off and he never did for more than twenty years and that was the combination that was requested then that was the accommodation that was requested now and everybody knew that he that by occasionally he meant he was going to get that time off not when he's at the other end but where does the word occasionally come from it's not in the not in that letter but it's in a couple of different letters in the record and i'd like to r my last two minutes for a bottle if that's ok or are you i thought you know i want to answer the questions that you want to answer concerning the court so but if you want to say for a mother we'll hear from will hear from your coll hear your honor may please the court my name is scott moore and i represent the apple e the union pacific railroad company mr higgins is asking this court to hold that indefinite and unpredictable leave that results in him missing one out of every four of his scheduled shifts is a reasonable accommodation under the way it is not this court has long held that regular and reliable attendance is an essential function of the job and if an employee is unable to show up for work he or she is unable to perform any functions let alone the essential functions of the job therefore requests for indefinite unpredictable leave of absence is are unreasonable as a matter of law and your part is going to say but you did it for twenty years so why all of a sudden is something that you could do for twenty regular and reliable attendance is not an essential function this court has long held that they're not going to upon an employer for over accommodating an employee in establishing whether it's an essential function but more importantly something that was not mentioned by opposing counsel is in two thousand and thirteen union pacific demands changed it's undisputed in the record that volume increased and when volume increased regular and reliable attendance became more important and union pacific stressed that from the management level to the managers of mr hagen's that all the okamoto engineers were going to be held more accountable to their attendance it is undisputed in the record that mr higgins was on the list that is the employees with the most absences a lot mr reagan's along with other employer employees in that category were warned and required to improve their attendance because union pacific needed more reliable attendance at that point what the plaintiff here is arguing the appellant is arguing is in a players is always handcuffed if they want to be more efficient if they have more demands if they have an increased need for attendance well you cannot change that i know your business needs change but you can't change what you've done in the past that's not acceptable and this court has made that clear in fact this court has been very clear that the employer's deference is very important giving the employer deference to their judgment is very important that this court will not substitute its judgment for that of the employer in fact in  versus alliant energy corporate services judge colton you said so long as the employer was not discriminatory it is not the province of the court to determine what is the most productive or efficient shift for a facility and there's certainly no evidence that you pacific's actions here were discriminatory because it held all locomotive engineers accountable beginning in two thousand and thirteen in fact plate that makes much ado about the fact that michael humphries was monetary compensated for improving everyone's attendance in the unit that shows it's an essential function she needed to approve attendance because she was getting that pressure because union pacific needed to move trains and for that reason the fact that he was getting the accommodation before does not establish that regular reliable attendants is not an essential function now both mr higgins disparate treatment and reasonable accommodation claims rise and fall on whether he's qualified to perform summary judgment the district court held that regular and reliable attendance was an essential function of this locomotive engineer position and mr higgins request for unpredictable and indefinite leave which resulted in again and again in him missing twenty five percent of the ships he was scheduled for was on reasonable mr higgins argues that regular liable tense is not essential function and we talked about the fact that just because he was getting that leave in the past does not propre clued it from being an essential function but i want to confirm that even in this time in lip vs cargo meet solution this co consistently held that a full time position for a full time for the position of regular reliable attendance is an essential function and the locomotive engineer position is no different the locomotive engineer in for all practical practical purposes drives the trade if a locomotive engineer is not on the train the train doesn't move if the train doesn't move you didn't pacific cannot transport the goods from a location a to location b in other words of the train doesn't move you know pacific can't even conduct its business and more importantly if mr higgins doesn't show up for the job someone else has to this is not a job that can be done outside of the hours that someone scheduled you know pacific is not saying that in certain circumstances leave cannot be a reasonable accommodation but for a job where someone has to be there there has to be someone in that seat driving the train i don't think that's the case what motivated this case and what this what this court has articulated behind that reasoning is if you have a job where someone has to show up if they don't show up for the job they can't perform any of the functions of the of the job alone the essential functions that's what drives this court leave that up well a lot and employed to meet the essential functions is a reasonable accommodation and accommodation is something that allows the employe has the disability to improve their health to be able to perform the essential functions of the job it is not a permit missing the job over and over again with if an action based on the idea is not this agreement and now it's abruptly terminated just shepard i think as you mentioned earlier maybe there is a contract maybe there is a claim based upon that personal injury settlement that mr hood higgens should have proceeded with but he didn't here he proceeded with an eighty eight claim and it's very important to distinguish here he cannot turn his contract claim into an eighty eight dollars claim those two are separate and independent and you know pacific's obligation to the a b a is certainly different than any other agreement into which they entered and we believe there's plenty of evidence in the record that said he has this leave but under that agreement he had to provide a doctor's note and he still had to meet the minimum requirements of attendance that may be a factual issue but that factual issues related to a contract claim that he did not break what about the accommodation that the company was allowing previously do you say that was going beyond what was required by the f d a i'd say number one yes it was going beyond what was required under the a b a and indeed may have been part of that field settlement before and obviously the employer could enter into an agreement to settle a claim whatever risk they have on that claim if they so choose and give more rights to an employee than another employee so to the extent it was based upon that contract certainly to the extent it matters that relate go ahead and for sure for sure but i think what's most important here and what wasn't discussed before is there was an increase in demand it is undisputed in the record that there was an increase in demand for union pacific services in two thousand and thirteen so did that change the essential this court has long held that even if an employer with the employer has permission in employees allowed to layoff or miss more absences that does not bind the employer to to the concept of regular reliable attendance is not an essential function of the job this court has been very clear in case after case or so we don't think that alone even standing alone without the increased demand changes that but certainly with the increased demand so you're saying our authority saying that if a company allow somebody to get by with doing work that is less than the essential functions that doesn't affect the meaning of what is the essential function it may in certain circumstances your honor but we need to look at all the factors and what were you referring to when you said we've seen in case after case that sure i thought that was your point that just because they let him smith kline case for forty four dollars that was your honour's decision in that case over a two or three year period and employee was taking twelve weeks plus forty days twelve weeks of f m l e plus thirty six days and the employer argued look my my employers have been allowing me to take twelve weeks of f m l a leave and then another month or two for the past two years so they can't now claim that that attendance is an essential function and what this court said very clearly in that case is that we're not going to place the employer for doing more than the eighty is required just because it's by the employer's permission doesn't mean they're bound by the  to give greater opportunities that is simply incorrect the a b a requires ensuring equal opportunity and if because of the disability they can't meet the equally applicable requirements which was the case here then there are allowed a reasonable accommodation not greater opportunities but a reasonable accommodation but they still have to be fundamentally qualified for the job and here whether it's this court's precedent with regard to the employer's permission for absences or even more importantly here the change in the business need for the employer that requires more strict monitoring of attendance which is undisputed here the employees not qualified were this court to say well employer is bound forever by what they do even if they have changing business needs even if it's undisputed that more carloads are out there and we need better attendance because we have more trains out there i'm sorry you agreed in the past based upon different facts to give leave so you're bound by that that in that in this case is the court substituting the judgment of it for the employer's business needs here it was very clear that when the when the needs increased from the highest level of union pacific down to the management management were told we need to pick keep people counted accountable and mr higgins was given notice of that as well as the other employers now let me ask you one other question yes enemy is the case turned it on this distinction between whether he needed occasionally to take twenty four hours between shifts or needed regularly to take twenty four hours between shifts is  important were the court to hold that his accommodation requests that resulted in missing one of four shifts could be reasonable there is the other reason that is he his physician made very clear that he needed twenty four hours rest between shifts and that would result in even by the employee's own admission it would be unreasonable you couldn't do it because when he's in council bluffs coming back he can't have twenty four hours off shift before he returns on that tray now as your primary argument was not based on that your primary you know it was just a twenty five percent is too much that's correct and even if he continues with occasional if that means twenty five percent yet can't perform an essential function that was your lead argument that's correct and that and that's the grounds on which the court directed summary judgment the district court but where the court to disagree with the district court certainly that twenty four hours between shifts is very important this court is very clear that the employee must clarify if an accommodation or if there is a message that's going to the employer that same correct the employer is allowed to rely on the physician the treating physician statement they shouldn't be left to guess and remember even though they're talking about nine hundred and eighty three in those we're talking about different managers back then we're talking twenty years in the past you do pacific required because of its increased attention on attendance that he provide a doctor's certification and this doctor said what he said and there was no mention of a case where there was no mention of oh it's not when you're away from home it is he needs twenty four hours off between shifts and need pacific should be able to rely on his treating physicians know this issue of attendance being required what if you had a situation where you show statistically that the average employee lays off fifteen percent of the time between vacation and sick leave and so on and the accommodation is i know i don't want to be able to take occasional time and it's fifteen percent can you come back in and say well tendency is a requirement we can't we can accommodate fifteen percent and those amount of time if an answer the question is do yeah no in that case there would be evidence that it's discriminatory we're treating the employee differently than other employees without disabilities who are allowed to take fifteen percent of the time off so that would show it's not essential function again going back to this court's opinion that if there's if there's evidence of discrimination that's different but if there's no evidence of discrimination it's applied equally in required of every employee that's what it becomes on reasonable and so that would be the distinguishing factor there your honor we ask that you up help the district court's summary judgment grant and i think you writers very well thank you for your argument your are you asked a question just call it in before i sat down and the letter that discusses a continuation is two pages beyond the letter that we were talking about it's a letter from union pacific that says the medical directors offices supports the point that the quiz says that defendant relies on about we're not going to punish the employer st of all all of those cases involve temporary accommodations we're not going to punish the employer for temporarily providing accommodation twenty years is not temporary here's the other thing i'm not asking the court to punish anybody i'm asking the court to allow the jury to consider this as they properly should because there are definitely fact questions here the issue is not about punishment the issue is about rule fifty six significant that the plaintiff was able to perform particular job for more than twenty years and that factual that she could perform the essential functions of the job with that i would respectfully request that the court reversed the the grant of summary judgment in this case and allow the case to proceed to trial thank you thank you for your argument the case is submitted in the court file an opinion in due course thank you to both counsel counsel or excused