tried to argue that regular predictable attendance was not an essential function of mr neufeld job and i intend to do just that first of all if you take a look at the requirements for mr neufeld job he was in the service industry there are some jobs where attendance is necessary to do work when there is work and it's not necessary to do work when there is not work and being a cashier is one of those jobs where you don't have to show up no your honor the issue is regular predictable attendance you can just come when you want to run or the issue of whether or not they could come when they want to not i'm not saying that that is reasonable in every case but in some cases that is reasonable and in this case at a grocery store you can just promise the cashier whenever you can just kind of do what's ours as long as you get thirty hours in or forty hours in a week you can when you want to depending on the status of the employer yes absolutely you can and i'd like to point the court to excerpts of records page five forty the deposition of one of the managers and he states that they did have other employees who took intermittent leave and he says i quote the employee took the days off when they needed to yeah but intermittent leave is an accommodation that the employer makes to its employees that's required to make and now we're going to blame the employer because they're allowing because they're making an accommodation to their employees i well obviously since you're making an accommodation you don't need them here all the time well that's that's that's only going to discourage winco from ever offering anybody intermittently in the future if they're going to get beat over the head with it i would i notes and excuses but not on the basis for which winco said wait a minute don't have to not show up and if you don't show up and don't have a doctor's note then we're going to we're going to give you the strike as provided if you understood from the very beginning just like everybody else your honor that's that's contrary to what's required at the feet if you look at to see are eleven zero six nine sub it says for reasonable accommodations extending beyond one year employers may ask for medical documents substantiating the need for continual reasonable accommodation on a yearly basis if your honour's check the record in this matter you'll see that my client provided a notice that he needed intermittent leave in january prior to taking the leave the intermittently for which he was fired in march the fee how does require that reasonable accommodations that are known to the employer be given and the fee how does not require medical certification for each and every absence doesn't prohibit it your honor i believe it does the the fee hopper habits any any requirement that is of the employer that is beyond which which is required by the that kind of arrangement were you know they said they told the employer you can work out a plan where you don't have to send a note each and every time or if you comply with the never took advantage of that offer you one or two things there was always a requirement that he provide a medical certification for each and every absence and i'd like to point out to the court the absences for which my client was terminated happened in march he work your own or that's that's not actually true and i think that this speaks to an important policy that we need to look at the fact that my client couldn't get the medical documentation is because he was a low wage worker who didn't have health insurance so when coast policy  if we were to apply that to everyone that would require that everyone have health insurance have access to a doctor and be able to provide medical certification for each and every absence even though they have already provided numerous and volumin that he was unable to provide it and it is in the record that he did inform his manager give me the extra number the excerpt for for what he told the employer i can't give you no because i don't have a doctor or something like that your honor i don't have that hand that would take me a moment to find it is not in the record i don't have that i don't have the voluminous record memorized but i would have to have to tell the difference between mr ne intermittent correct which means that he can do it whenever he wants or whenever he in his judgment he is medically disabled well the feel like i said yes ok so back to my question how does winco distinguish between waterskiing and staying home because he's not feeling well when co distinguishes because they have notice that he is when he has no ability to verify anything that's certainly not what i'm what i'm claiming because they did verify and he did provide multiple verification right but he didn't provide verifications for a number of days and that's what winco fired him for was for taking days off without providing medical verification so what is winco supposed to do your honor he did provide medical verification he provided these for which they fired him he provided notice and signed and when co acknowledged that he needed intermittently writing his anxiety but that's the get out of jail free card you know in advance right now i'm asking you how is winco supposed to know that on those days he was exercising his intermittent leave for medical reasons and not just taking a day off for personal reasons because that's what he told them and they had no reason to believe otherwise and so and feel that in the burden becomes on winco to verify this he doesn't have any obligation other than to tell them i took medical leave yesterday i do believe he has an obligation and he carried that obligation he carried the obligation by providing multiple thursday he takes if you takes today off and comes in on monday how does winco know but he took it for medical reasons because he provided a note back in july that says i'm going to be taking days off for medical reasons does he have any obligation to demonstrate to winco that he was actually exercising the medical leave that the doctor said that he would probably need yes your honor and i believe that is through that the medical certification which the feel in the regs state you can ask for medical certification once a year so the regulations themself the contour then becomes a get out of jail free card and when called has no way of knowing whether the day he took off was for medical reason if you're telling me now that he has to assume that every day he takes off is done for medical reasons that's not correct your honor if he tells them and i think we can assume there's no reason that the law would assume that people are not honest self them or if you tell them that it's related to their disability and just they just have to take his word it's not just his word if he has substantial medical certification and documentation which p you good morning your honor christy your honour's christina lonnie for one call holdings inc may please the current plaintiff's entire case depends on your honor's finding that their regular predictable attendance is not an essential function of a grocery store cashiers job because it is not written didn't act in this case like regular predictable attendance was not in the central function as i understand windows position the problem was that after mr neufeld was absent he didn't provide a note and when i kind of extend when coast position think about it it seems to me that as long as he kept providing a note no matter how many days he missed no matter if it was predictable or intermittent as long as even several months later he provided a note when code didn't seem to have a problem with that given that that seems to be windows position how can win co say that it was essential for this particular plaintiff on this record to have regular and predictable attendance well your honor as as the weight of authorities that we cited in our brief have indicated that if you were to find that an employer is excusing absences that have you know had medical documentation supporting them if you were to hold that that a faith waives the employer's right to argue that regular attendance is an essential function then it would effectively punish employers from going above and beyond what well what about this this for the good talk of the employee well if you don't want to provide an order every time you know you know you can we can make this arrangement right that does not also seem to indicate that you know it was you know they almost thought for him flex  providing a note every time is precisely consistent with what the regs state there is a provision in there in the states that if an employee is going to meet absences on a going forward basis that they can proactively provide that certification with that year for example a modification and job duties or where you've gotten that certification that there is a need for intermittently if there was no says certification here rather the opposite every certification that mr neufeld submitted stated that he needed to be absent only on specific days due to his disability in response to my earlier question you said that if we were to take into account when coles willingness to allow mr neufeld to excuse his absences with notes we'd be in your words penalizing winco and there's a line of cases that says you shouldn't hold it against an employer when an employer generously tolerate absences almost all of those cases involve an employer temporarily accommodating an employee and in this case when i read the record there's no indication that windows willingness to tolerate mr neufeld post absence excuse with  would have ever expired on this record it seems to me that a jury could find that for as long as mr neufeld was employed with window for the rest of his career whenever he missed as long as he gave a doctor's note there would be no problem i didn't see a case that suggested if an employer seemed willing to do that ad infinitum into the future that that's not something we could consider in deciding whether regular and predictable attendance is in the central function is there such a case well in the sam para case which which this court decided the employee had been absent numerous numerous times for a period of time as is a lot of the the critical difference between that case and this case in that case the nurse was  absent for several years as you point out your brief but the employer in that case didn't sit by and say nothing on the contrary the employer put the nurse improvement plan gave her verbal warnings counseled her expressed unequivocally that these absences were fundamentally inconsistent with doing the job here i didn't see anything in the record that suggests that winco ever indicated that anybody in the world that it had a problem with mr neufeld irregular absences so long as he would just provide a note after the fact isn't that an important difference between this and samper well i think factually it's very different as well because here every time that mr neufeld submitted a no excusing his absences it said very specific days and every note provided the indication that that though this was not going to be an ongoing condition and it's also important to think about the larger context of well not directly  these facts but the larger context of the a d a s and a reasonable accommodation being a leave up to a year mr neufeld had only been employed a year and a half by the time his employment terminated so by winco tolerating the ongoing unpredictable absences as long as they work he is with medical documentation for a year that's well within the realm of what would be required anyway i think if this had been going on for years and years your argument would make more sense but on these facts i don't think  context of this use that the point or the absence is the the plaintiff is bringing up that issue here are these beginning of march absences the day after those three days that the plaintiff was absent the plaintiff went to the doctor and got a doctor's note for other absences but he did not get a note to certify the absences that had occurred just the couple of days prior to being at the dr what do we know about the other accommodations that that window was making for other employees might go to the question might go to the question the judge like them was asking about about whether attendance really was critical in windows i mean if they're if they're offering very very generous plans over multiple years now well beyond the year and a half what the in place restrictions are for the employees disability and works with the employee in as part of the interactive process determined to determine possible accommodations if the doctor certifies that the employee might need days off as respect to reasonable accommodations the district court rejected the idea that intermittent leave would be a reasonable accommodation here when i reviewed the correspondence between winco and mr neufeld in particular a letter dated june twenty and twelve when co writes to mr neufeld and says that to conveniently provide him with the reasonable accommodation of intermittent leave please have your physician supply the letter now we know this physician never supplied the letter but on the underlying question whether intermittent leave could be a reasonable accommodation here how do you square the notion that intimate leave isn't a reasonable accommodation with this statement winco suggesting precisely the opposite well it certainly it is not a reasonable accommodation first of all if the doctor does not state that that it is something that the employee needs to accommodate the employee disability which is something that never occurred here but also a district court ruling wasn't having to do the doctor the district court's ruling was that in this particular position intermittent leave is not a reasonable accommodation because it would undermine the requirement for regular and predictable attendance with respect to that rationale how can that rationale be squared with when it goes on statement on intimate leave well i don't think that district squarely the intermittent leave is not a reasonable accommodation it  intermittent leave that is to the point of compromising your regular predictable attendance such that an employee cannot perform that essential function of the da job is not an effective accommodation at all not only is it not reasonable it's not an accommodation and you only find that out as you go through the process and you attempt to offer the employee the accommodation that he or she has requested your benefit or to mr neufeld said if you provide us with this doctor know that tells us you need interment leave your narrative and as long as you give us a couple hours notice that you're going to be gone my words now we're fine with it that's a record of real nine how do you square that with the district courts conclusion that intermittent leave here was not a reasonable accommodation because at the point that intermittently if becomes either indefinite or it is not it is an accommodation that does not eventually allow the employee to perform the essential functions of their job so leaves of absence for example an employee who's never at work is obviously not performing the essential functions of the job but a leave of absence can be a reasonable accommodation if it allows the employee to be able to get back to performing the essential functions of the job so a very similar rationale applies here whereas intermittently for a period of time can be a reasonable accommodation but at the point where it becomes clear that the particular predictably attending work that they can perform none of the essential functions of the job because all essential functions require physical attendance that is not a reasonable accommodation as a matter of law thank you you know drawn and the district court just looked at the prima fascia case and the fact that the record showed that the the the accommodations requested and which when coa tempted to provided were not effective in allowing the plaintiff to perform the essential functions of his position and therefore he wasn't a qualified employee and his claims fell thank you thank you  intermittent anxiety so he did provide that certification next i want to point to the issue of the interactive process which we have not talked about many of the cases cited by defendant the employee and the employer in gauging the interactive process that didn't happen here the employees burned at this point is that what what what interactive process quite a bit of it quite a bit of interaction over this they had interaction your honor but they didn't have interactive process the interactive process is a back and forth dialogue working toward solutions so when counsel states that it became apparent that the sleeve was not going to that it was going to last forever it's that or etc there's no that this is not a reasonable accommodation i wanted to point back to back to the deposition testimony of when co manager unlike other attendants policies in the cases cited by choose not to award points per the attendance records based on business needs that is a critical difference with regard to the accommodation that is not present in the other cases that are cited by defendants the other issue that i wanted to state is that with regard to the functioning of the employer and their business nobody told mr neufeld we can't perform our functions as a store if you don't show up in fact the record shows that the only difficulty was an increase of lines it's not a case such as stamp or where she said nick you nurse or as lange versus astrue where in length the court stated the absences prevented the employer the employer stated that the absences prevented the employee from completing essential functions and prevented the employer from adequately serving the public that's simply not at issue here  again i'd just like to close with the fact that the employer is coming before this court now after having for years conceding that my client was a qualified individual stating in writing he's a qualified he's qualified under state protection and under the eighty eight for years now they're coming before this court and telling you that he's not qualified and i don't think that inconsistency can be squared many working for no on march nineteenth two thousand and twelve was the first absence for which medical documentation was furnished and he continued to provide medical documentation when possible through august of two thousand and thirteen