sorry your honor i think i can hear you well now i think we're ready to go actually i'm sorry i'm not hearing you all right let's do a little test hair judge ebell and judge morris do you want to say something and see if she can hear you yes you can you hear me because williams actually your honor now i can i can hear you significant findings one of them is that millions of americans have one or more physical or mental disabilities and that the number of americans with them findings congress announced that one of our goals as a nation must be to provide this able individuals with the tools they need to achieve equal employment especially with respect to equal opportunity the express purposes of congress passing this statute was to make sure that the federal government served as a model employer a leader for the rest of the nation with respect to employing people with disabilities now this case involves the department of defense specifically the defense health agency and its failure to provide our client mr alfred brown with the reasonable accommodations he and after twenty two years the military gave him an honorable medical discharge but mr brown wasn't finished working he continued to work for the government as an investigator specifically he works for the u s department of perfect job because he got to work as a fraud it is a correct to say that all parties to this case agree that he was performing the essential functions of his job  functions of his job without those requested accommodations that's your honor actually it has previously even in the public sector in the raft in case this court found that  gone versus us mast and more recently your honor in the x v still only case this court made it very clear that if that rule employee or any employer has a responsibility highest and best purpose and we are responsible to make sure that happens well is there a disagreement counsel then because you're suggesting that he was able to perform the essential functions of his job but he still needed some additional accommodation but i think the problem we have here is that the accommodation that he requested was to be able to work telework primarily two days a week and and we've got the employer saying that no that is an essential function of his job to be in the office working with the clients with law enforcement working under supervision working with the files that's an essential function of his job so your your and if we agree in the district or did that that it is an essential function of his job to be in the workplace then how is it that he he is able to i guess i don't understand your position if we agree that an essential function of his job is to be in the workplace how is it that he requests accommodation well st of all your honor this court should not agree that he's in the workplace was an essential function one of the primary problems in this case is it t j as a ho be more is there a more precise answer in that they had already let mr graham work a day remotely right and so we know that they have agreed that it can't be essential to be at the office five days a week because they've already agreed one days is not essential and so that is relatively small step i would suppose risa could be argued for perhaps this army judgment that it's a small step to say today and wasn't a reasonable accommodation and the fact is the government is required to look to the agency as a whole not just that little fourteen person office to figure out whether any of the a competency four days away versus three days a week how do you deal with d cases that say that some deference should be given to the employer and determining what the essential function as well there are a couple of ways to deal with that you want to st of all it is the governments where the employers responsibility to prove that as an affirmative  accommodation following up on what you just said at one point i think we've been told that mr brown spends twenty to twenty five percent of his time on the phone talking with law to work some of his core hours on the weekend and sly understanding that they they didn't allow for hours to be worked on the weekend that they required you to work those within or in the in the building in the in the actual work place and once you got to your forty hours a week basically that she could earn credit hours or disha lauer's by working at home so wasn't even really asking for an for something that wasn't standard wasn't wasn't given to everyone as he as you suggested in your brief that this was something everybody got to do work work hours at home on the weekends no you're on the honor st of all those two understand because i think that makes the same argument that you're making about teleworking working on the weekend again that raises the same issues as teleworking in the sense that you're not in the office you're not under supervision you're not there with law enforcement already or the clients of the agency and your files are in the office as well what i'm asking about is was it a policy or for them to allow generally employees to work their core hours on the weekend and wasn't the policy that you could only work or hours on the weekend if you already worked your forty hours or your core hours and you can work additional hours i guess i should be saying that's i understand well your honor they didn't allow employees to work on the weekend with respect to core hours that's completely variable that is simply a policy it is not haunted they have to work th right so your honor if i can start with the st and foremost of response and she point in this evaluation and that is that these records simply were not digitized this was a paper world and people could not carry these records which contain sensitive law enforcement information as well as protected health information home in fact these records were not digitized until a new system was implemented in happening here was that when mr brown was granted the accommodation to work telework one day a week you could do mr brown could do minimal ancillary sorts of tasks remotely in this timeframe at that time employees who were working remotely were not typically working on their cases or including their key town cases which require documents on that telework day this isn't the record his disability to take this day but it's one thing your honor to say that you can do these ancillary sorts of duties one day a week it's an entirely different thing to say that you're allowed to tel knowing that he really wouldn't get much done but it was strictly a pure rehabilitative concession to him to try to help him well your honor if i understand your question correctly i think the answers is yes to both of the points both of the points that you raised and your honor to one critical point about not having an immediate access to files is that an employee never knows a health care fraud specialist would never know when and when that critical call from an assistant united states attorney or an f b i agent was going to come in and even if mr brown it scanned a few documents before he went home for his day of teleport that week he could not be certain that the document that he needed when that agent called would be immediately available to him and so that's another factor in the in the consideration here it's not synonymous and isn't it relatively easy t o scan and email documents to enable telework your honor not at that time and not in these circumstances so the managers explained that standing documents was a huge  is a matter of massive amounts of paper and management judges this this decline in productivity simply could not be accepted let me ask you about speaking of the person who who was helping the agency or this office transfer at that time to implement a digitized system but the issue here is that  was not the total answer you still had to stand the documents that you needed into that b p and in other words it's not a gateway your honor to all of the documents and so it doesn't the need for excessive amounts of scanning well and but counsel when you when you add in the testimony  however you pronounce of mr king who talked about teleworking why isn't the combination of all that enough to raise an issue of fact to preclude summary judgment your opposed to during the relevant period of time here is that what we would find in the deposition testimony yes your honor i am making that statement the closest that any of them come any of those three employees come in their testimony to speaking about this relevant period that we're talking about is that mr coleman says at one point yeah you know you could have scanned documents back then of course we cannot watch that the issue here is that the decline in productivity in management's judgment just could not be countenanced by fine standing taking that much time so that mr brown could tell of work an extra day a week on a day when he might not even have the relevant files to respond to that urgent call from law enforcement if it came sensually would you have are you suggesting that he would have had to have all of the files that he worked on scanned you know or and have them accessible at home in order for him to be prepared to work on whatever whatever case he had an inquiry on that he does that and just copy a few pages on wednesday night before i worked at home on thursday cause he didn't necessarily know what can scan them i mean yes your honor that's exactly what i'm saying this is discussed it pitched a one thousand and forty of the record and volume four on the record of questions if it's unclear your honor but st i'd like to say this mr brown really didn't want to reassignment is that term is used in the reasonable accommodation context so i think it's a bit of a misnomer what he really wanted to do the record shows was hand picked his supervisor and so he asked to be transferred through it few different points during this period to different teams to there would have been no change in terms of his working conditions he would at the same job he would have had the same nd level supervisor mr march last year and he would have runs mapped out into the same issues regarding were a real sign is an accommodation of last resort and the circumstances here just don't fall into that last resort category in fact a simple request to be transferred away from a supervisor who causes you stress is unreasonable amat as a matter of law and we cited cases false guidance on that point and and they're saying that has to be the case that that's what he wanted because he understood that a request to transfer to a different supervisor and yet the same job he would still be denied yander stood that he would nevertheless still be not denied this accommodate the combination he asked for that level he certainly would have understood he certainly would have understood your honor that he would be working under the same nd level supervisor who had been a part of the it reasonable accommodation process in which these these requirements these restrictions were laid out for him i think the bottom line your honor here is that if mr brown could do the same job for another supervisor just across the way in the same office he can do that job and that doesn't qualify as a need for job he only wanted a reassignment of a different supervisor doing the same kind of job and your response was there wouldn't be any other supervisor that was available  your honor what you have said is correct he didn't we the record shows that when mr brown asked for those reassignments to other supervisors that there didn't happen to be a job at that particular time  think i mean i was not assuming that he said ok if i don't have a job working on these particular kinds of claims let me let me do a different job let me have them give me some only different job that will be less stressful i'm not i didn't think that that that accommodation was ever specifically requested by him or that was part of the record am i wrong or right about that you are right about that we see no evidence in the record where mr brown identified a specific other job if you will your honor for which he would have been qualified and a job that he actually wanted to do we find no evidence in the record at any specific request along those lines as your honor has just as friends and this be something like and sanchez however where we basically said even if you can perform the essential functions of your job the employer still has an obligation to do that something extra essentially he could that something extra here bend to transfer him to a different supervisor that he felt ok felt more comfortable with resort it may be considered in a very narrow set of circumstances not present here and that is where the employee needs that accommodation for the purposes of actually going out to obtain medical care and so we think that that is as far as this court has gone it's gone at this time in terms of banding this idea of w incompatible with his supervisor mr o'brian my time is truly at an end if i may answer any other questions if not i thank you for thank you for your time and the united states much full time off and on at home but i provided record evidence where they said in two thousand and twelve they had that ability nd of all the supervisors never sent that it truly wasn't possible for mr brown to do it what they was they yes they did yes that it would be a burden they never investigated further mr brown did request reassignment of course he wanted to stay doing the job he had but the very you thank you counsel the case will be submitted telcel or excuse we appreciate your arguments this morning