falkner is a sixty year old african american female who worked at douglas county corrections she wants nothing more than to go back and do her job and her job as she knew it is something that she's more than qualified and able to do miss falkner case today reserves to issues at least with your spec the questions of material fact having to do with disparate disability discrimination in employment cases the first issue is whether or not douglas county corrections job description for a correctional officer to a c o two for shorthand actually stated the essential functions in fact a job description cannot be the only basis for a job disk excuse me a job description cannot be the only basis on which the essential puncture of a position are determined that this court's holding in benson two thousand in fact the job descriptions and the essential functions must create must accurately reflect reality what the actual job was that was performed when it was occurring not just the theoretical this is what we want our employees to do and see a far twenty nine twenty nine c a par sixteen thirty identifies the evidence that can be considered in determining what the essential functions are one of those is an employer's judgement the others however are the written job description here one that was prepared by the employer so it can be modified and set up to include functions that are less than essential from our perspective and also the c f r identifies the time spent on the actual position on the actual function the consequences of not requiring the particular function and the current experiences of the incumbents in the position according to dr fox all in his deposition testimony all of the job functions stated in the job description were required no exceptions period end of story duty in the central control area or in the bubble the bubble is the area in which the housing units are monitored central control like the bubble are whacked out they are  there's no access for an inmate to get into either of those whole cations so for years without light duty miss falkner was assigned to those positions how however when she wants light duty she can't be there so what she actually did as her functions her essential functions had nothing to do with their jobs the fact that there's a requirement of your job that you use infrequently doesn't mean that it that it isn't essential to being able to be in the position i think you're under though if you apply the now so this court as stated in barns that it has to reflect the actual performance of the job not just the stated functions that the employer requires because those functions were drafted by the employer so it can be set up to serve their purposes is to sit in the record how frequently any officers had the use that particular skill or ability the principal evidence is that of mrs faulkner  there is evidence as to light duty assignments in those particular areas and one of those individuals demonstrates the in equity or the an equal application of the employer's rules for instance the collective bargaining agreement in the d c policies require that there be a ninety day limitation to light duty followed by i want to extension for a similar ninety day period however there is deposition testimony identified in the record that one of the individuals was on flight duty in those positions for over two hundred and forty days and on the the defen has argued that in fact it was only one hundred seventy six days but i would submit that in the context of this particular case the number of days and the disagreement over those facts is a material dispute over fact while it may be only a matter of days it is very significant here and resulted in this is faulkner not being allowed to return to her position because the crafted essential functions in her job description honor some accommodation so that she could work full time i noticed in the record that she had a workman's compensation claim at this time do she have permanent partial disability that runs from that claim for instance or at the time as of today i cannot speak to that your honor but as of the time of this decision her worker's comp claim had not even been decided so in fact that goes to and i'll address that right now another problem in addition to the essential function issues is the failure of douglas county to engage in an interactive process to discuss what reasonable accommodations are mrs faulkner requested meetings repeatedly with respect to discussing her potential accommodations her worker's comp counsellor requested of the staff that they be allowed to discuss the worker's comp the accommodations was it was local what's the interaction of the c b i and the potential for accommodation  the both the c b a and the policy for douglas county allow for accommodations of ninety days followed by an a and e and a second ninety day period of combination but as i said there's evidence in the record that there are employees who exceeded that and in fact other than the one individual who was identified there are other instances in which employees would game the system by taking ninety days getting a second ninety day period and then go back to regular duty for a day or two and then go back on to another ninety day followed by a second ninety day mrs faulkner didn't do that she played it up right she played the game straight and she has paid the price for it with respect you're bringing this action under the nebraska for employment practices act in your contending that she's being retaliated against is that where we are here that is one of the claims yes douglas county disputes that and claims that her filing for disability and disability benefits was not a protected activity and i cannot think of anything more protected than making a claim with respect to a disability the very crux of her discrimination quite there were two instances in which douglas county claims that there was an interactive process one was an employee review meeting in october and when that meeting was convened douglas county cancel the meeting and it did not occur to its full fruition because at that point mrs faulkner had not even had her surgery yet it was so far in advance of her being able to determine or douglas county being able to determine what she could do that the meeting was canceled there was no interactive process at all the second meeting was in january of two thousand and fourteen and that was a pre term a nation meeting mrs faulkner didn't understand that that was what it was for but in fact when she was questioned at that meeting whether she could perform the essential functions of her position which as you know we can test are we can test to that they are not the essential functions based on past experience she said she could not at that time because she was still under a doctor's care so there was again no opportunity for an interactive process at that time because she was still under a doctor's care the fact that she was under doctor's care made any discussion of accommodations premature and i do not believe there is no authority that the employer her meet the employee is required to request a specific type of accommodation but just to make the employer aware that she has a disability and there's no dispute about that and that there must be an interactive process there was never any given take there was nothing on the side of the employer douglas county here that even suggested we could discuss this and try to come up with something that would satisfy or policies satisfy the click to bargaining agreement nothing dr fox has said it's in the job description it's required end of story and this court's authority  i believe it is from two thousand case benson it is a prime of facia evidence of bad faith when an employer refuses to engage in the interactive process there was never any discussion with miss falkner by death goes county what there was that she could possibly do that would accommodate her needs and still satisfy her employer's requirements she had for years done exactly that done exactly the job that she wanted to be put back into either control central control or in the bubble  despite the fact that the injured on duty committee at one point agreed that the she should be reinstated he said no absolutely that it's in the job requirements mourning your honour's may it please the court my name is jimmy pink and i'm here on behalf of douglas county nebraska i'd like to clarify a few items for this court first of all with regard to the essential functions of the job corrections officer to that question has come up during this dialogue however which essential functions are being disputed was not discussed the job description does include a number of essential functions that job description is page two sixty two to sixty four of the record and douglas county relies on both that as well as the testimony of dr and dr fox all as well as the consequences of not performing that duty the two duties that are disputed by miss falkner may contact as a corrections officer to inmate contact and a three hundred fifty pound team lifting requirement no other essential functions of the job are disputed at all by miss falkner and the district court specifically referenced those in its in its original memorandum or choose me in its memorandum to the motion for rehearing specifically there is lifting requirements pushing and pulling requirements that miss falkner would be required to participate in as a corrections officer to as to the inmate contact portion with those central functions it's undisputed miss falkner stated in her deposition before the workers compensation trial on numerous occasions that yes inmate contact restraining a combative inmate protecting others that is an essential function or as she put it a requirement of being a corrections officer to additionally miss falkner testif her deposition that she saw other correctional officers involved in make contact that's undisputed the other piece that i would say in the record your honour's no there's no specific reference to how many in make contacts occur a year every month what we can say is that in two thousand and twelve leading up to these events and what ultimately caused this lawsuit were to inmate contact instances involving miss falkner one in which she protected an individual in a medical mob from being assaulted by an inmate the other thing that i'd like to clarify your honor the reason this question even came up with regard to her disability in the essential functions is because miss falkner prior to her terminations had a functional capacity evaluation as a result of the workers compensation proceedings and in that functional capacity evaluation she was given permanent medical restrictions maximum medical improvement permanent medical restrictions  at work douglas county corrections that do not do cannot perform all of the essential functions of of the jobs there douglas county isn't saying that because douglas county does have an accommodation that it's required to comply with under the collective bargaining agreement with f o p eight that accommodation and accommodation that was specifically bargained for by the fop is for light duty and light duty their specific positions numerated in the collective bargaining agreement and in the policies and procedures that allow an individual to work less risky or or less risk adverse situations or positions at the correctional facility like central control  like the bubble positions where there is generally less in may contact however those light duty positions are temporary positions there is a red herring in this case with how long certain individuals receive light  duty if it's true that douglas county has given more than one hundred eighty hours of light duty to an individual if any of those of individuals are mentioned in the record like ms jenny lane for example it's a red herring that individual is not similarly situated to miss falkner falkner had permanent medical restrictions maximum medical improve my miss lane return back to work full duty after her light duty miss falkner had permanent restrictions that douglas county could not ignore so ye honor there are light duty positions available at douglas county department of corrections that individuals fill on a temporary basis but none of those are all those who are and those who are workman's compensation  a lengthy trial that resulted in miss falkner ultimately receiving vocational rehabilitation however the judge determined that she was not that her injuries were not on a worker on duty injuries because they were injuries that were exacerbated by those inmate contacts because she was involved in a motor vehicle accident prior to those and make contacts now with regard to the accommodations there's no discussion today about what accommodations are available what accommodations are not available the only accommodation for the purposes of this this appeal the only accommodation that's discussed is a permanent light duty position and that and that would be placing miss falkner into central control where she says she was there for four years and her interact atory she said three years and then in her deposition she said for years douglas county does not need to dispute the she may or may have been in central control for four years because there's no dispute she was in regular duty for four years and per the testimony in the court both fox all deposition page one thirty two of the record lines one through thirteen as well as karen peterman's deposition page nine o seven lines nine through twenty two and page nine sixteen lines eleven through sixteen there's a discussion that even individuals working in central control under regular duty can be bumped out of that position and put into another position where they would be at risk of in ma contact bumped by light duty individuals so the preference in the conduct collective bargaining agreement individuals who are temporarily ill or temporarily injured receive preference for those light duty positions and even the record miss falkner testifies page twelve all four lines fourteen through eighteen when she's asked by her own counsel so you're saying that you worked every day in central control for four years miss falkner hesitates and says well if there were extreme cases but yes i was the primary that would shock i've obviously with the policies and procedures the testimony from dr fox on the c b a preference for temporarily ill and temporary injured individuals now there is another point that should be made with regard to the interactive process first of all of the this circuit has as recognized numerous times and of course recently and fatally just last week this court recognized that there's a good faith bad faith question that's part of the interactive process test and in this case not only did douglas county participate in the good faith interactive process but just as in faithfully there's no bad faith in engaging in that interactive process so in this case we do have on the record two letters that were sent to miss falkner and we know from case law that letters are not good enough necessarily to be a full gamut of interactive process however that douglas county employee review committee meeting in october of two thousand and thirteen four months before her terminations that meeting was set off because miss falkner stated that she had accommodations she wanted dr fox i was the one who sent the letter that asked if she had any accommodations that she could think of and they did have that meeting there are notes on the record from janice johnson the individual who's in charge of workers compensation down at douglas county if you look t douglas county position she asked for central control permanently light duty permanently the lobby permanently ok it took four months before she was terminated there's a reference in the record that douglas county had already made the decision to terminate her before the d c e r c meeting that's obviously not true four months before she's terminated in that time she has the surgery does not recover for the record your honor there were three  all with the same results permanent medical restrictions light to light medium requiring lifting pulling and pushing restrictions again there's no question that douglas county engaged in the act of process even if it had not engaged in the interactive process this court has recognized a number of times including in scrubs people asking county that unless there are reasonable accommodations available than any discussion of an interactive process is superfluous and that's a quote from drew pinsky they use the word accommodations are being alleged when you consider the fact that the accommodations that are being alleged either violate the collective bargaining agreement by giving preference to someone who is not temporarily ill or temporarily injured would require us to turn a temporary position into a permanent position would require us to eliminate essential functions of the job by placing her into central control permanently and not requiring her to answer any code or anything like that  if you consider all those facts there are no reasonable accommodations available and scruggs we play in city county makes a point of saying it is the plaintiff's burden to show the court in its  have found reasonable accommodations were available to her if you look at for example the cravens people v blue cross blue shield case from kansas city and eight circuit case from i believe two thousand in that case it was determined that the interactive process was done in bad faith the facts of that case your honor the individual requested accommodations requested vacant jobs knew of a vacant job ask for help find those jobs was told i'll help you and then was not helped ultimately through discovery craven's found ten vacant positions available to her ten so the question of the interactive process went all the way through and they said you did not engage in the good faith interactive process because there were reasonable accommodations available that you could have found had you participated in good faith in this case there are no reasonable accommodations available douglas county did engage in the good faith interactive process now your honor you asked about retaliation that claim has been abandoned by miss falkner it was not mentioned in the reply brief to douglas county's motion for summary judgment it was not mentioned in the motion for rehearing and it was not motion  any of the filings before the eighth circuit so retaliation is not at issue what is at issue however is a question of age and gender discrimination which was not discussed here the question about age and gender discrimination involved douglas county is a lege filings with detailed descriptions of why those individuals are different than miss foster or why or why they are similar and were treated the same of the eight individuals that miss falkner references being discriminated against based on either age or gender seven of them ultimately return to work full duty with no restrictions douglas county could not do that for miss falkner because she received permanent medical restriction as this court has stated multiple times you do not have to accommodate an individual who has permanent medical restrictions by ignoring that doctors medical restrictions for another doctor the other issue is that in those similarly situated individuals one of them also had permanent medical restrictions and was terminated from harm plummeted douglas county then douglas county countered again in the facts and in the argument and in fact if you look to page sixty one through sixty two of the brief of douglas county in the record and page eighty one hundred eighty eight there is a discussion of addition of an additional five compared who also had permanent medical restrictions and were terminated from their employment without your honour's douglas mr pink and went on at length about how douglas county has fulfilled its requirements for fischbeck to the interactive process significantly however he did not ever identify any particular circumstance in which that occurred and as i stated earlier there were two meetings with potentially could have satisfied that one was cut short and the other was a terminations meeting in fact douglas county has failed to discuss with ms fucked or possible accommodations that were available and appropriate there was no discussion about that they cite the fact that she requested initially extended like duty it's what she had been provided as her regular duty it did not seem like a stretch to get to that point but there was no evidence ever offered in this case by the county or discovered by ms fogg in or where the this county attempted to identify any potentially effective accommodations and as a result there was no interactive process the use of the word interactive is completely not a political to process that went on here she didn't have surgery yet and she was terminated and that fails to satisfy the standard for an interactive process thank you thank you much cory thank you also