you know we got to speak st and last and all of arguments are in the breeze but there is something that i want to clarify i think we were imprecise in the way that we discussed some of the facts or where the way we characterize the facts we've of gone along with the story that they accommodated her twice and what we're talking about is the rd request for accommodation that's not actually correct reading through the materials again they've never accommodated her not even once disability right but there's a distinction between the term of art accommodation to accommodate a disability under the eighty a and under fisa and taking your cheerleading six days which are entitled to she was contractually entitled to that's not an eighty eight accommodation that's all i'm saying that's a different that's a different as you said that's a different approach then took in the district court well there was just characterization with all the facts are the same but there is an accommodation in the very important  characterisation and so if you've already knowledge in district court that that was an accommodation it's difficult to come here now and it wasn't coming no we've never acknowledged that it's an accommodation what i'm saying is we just haven't addressed that we haven't tackled that argument when they say this is her rd request we said it was her nd request for a leave but my point here is that what we should have hammered on is even though it was her nd request for medical leave it's not an accommodation surely she only asked for one accommodation under twelve days of twelve sorry twelve weeks of unpaid medical leave according to their own policies and maybe even told when their family and they granted two on that basis and told her that she had that and that that she had ultimately exhausted it so when she came back and said my doctor any five more weeks i need to have this other of this other appointment to get cleared that was her st request for an accommodation that she wasn't entitled to statutorily or contractually she was invoking her rights under the a d h she said of a qualified absolutely the definition of a qualified individual under all the statutes here is a person who can do the essential functions and of her job with or without an accommodation and in this case the request of accommodation was medical you mean with no prognosis of ever getting better i think there are cases that say that none of them were cited in this particular in any of our briefing all of them focused on what about when someone's temporarily totally disabled meaning that they're on the mend they're go inconsistent with the ability to request accommodation if you're not a qualified individual at that point but case that you're relying upon to see what the proposition that if you have a total disability prognosis to heal they are entitled to accommodation that newness versus wal mart is the case and in this is the case says quote unpaid medical leave may be a reasonable accommodation under the a totally totally disabled person you know this is a person who could not do the job at all needed medical leave in order to heal right to recover to seek treatment and so the court said and that was one of the issues and the court said unpaid medical leave may be a reasonable combination under the eighty eight even in extended medical leave or an extension of an existing leave period may be a reasonable combination if it does not pose an undue hardship on the employer remember this is one where she different doctors gave estimates of eight months out of nine months out and the news corps said look focusing on her disability during the leave is an error because the whole point of unpaid medical leave to heal is that you are injured i mean anyone if you're in a car accident and you're going to be laid up for a week and you're in a body cast or something of course you're completely unable to to work but you're going to heal and so this is a classic accommodation to give you unpaid medical leave the hill but every one of those people who are in those kind of accidents are completely disabled the day after the accident they can't work so to say you're not qualified because you can't work right now that's improperly nicer communion is your court here in determining that new years with totally disabled on the date of her looking at a totally disabled person ok well i don't know how material that was to their holding because she clearly cannot go back to work and they weren't talking about any accommodation like come back and we'll modify your work schedule to other things this was a case where she could not come back and they were asking you know what would be appropriate this is the one where she had those with the crossing couple episodes and she had this these constant problems and it was affecting her so much that she couldn't work and she needed to get treatment and she was actually fired before she ever got it finally resolved and soon thereafter she got it as a result and then i took a said look i'm less it's a hardship and that's the way should be that it's always a defense is going to be hardship and we can hold the position open right that that's a legitimate defense but if it's not a hardship and we're not paying you you get unpaid medical leave to heal and as long as there's a decent prognosis that you're going to heal right then this is what the a requires this is what the statute requires and so focusing on someone's disability during leave saying you can't work right now therefore you're not qualified but that's just not the way to look at it's improper and all these cases say that there's more than the newness cases th the lucky vs hanssen case and all the other ones that we cited in our priest so the question is was it reasonable to expect that she would heal was there a good prognosis that someone with a broken ankle is eventually going to be able to return to work and of course there is and is trying to recruit people between the ages of sixteen and twenty four in order to get you part of the u s labor job corps program and so there was a lot of stuff on the phone there's a lot of stuff at the desk there are some meeting people and going to certain sites and so it is a combination lifting nothing like that so it was largely clerical mixed with some outreach and so hensel what's your minds on the retaliation issues to the claim that we should  burden well basically we have two points that one is that i don't think we should read it i think judge also said in the in the last oral argument she says normally if a district court doesn't flesh out the issue we don't like to wade in and hear the district court said we're not going to reach that issue but the real reason why i think the court shouldn't reached that issue is that there is a number of statutory factors have to be considered to reach that issue and this is found at twenty nine dollars c f r one thousand six hundred and thirty dollars sub piece of two and i don't want to go through all of but the nature of the net cost of the accommodation the overall financial resources of the entity the type of operation that all these things is not on the record so not only was it not developed and not in the record now it's probably one of the reasons why the court didn't reach it but the court yeah of her job and the answer is absolutely no she was not a qualified individual she herself admitted that she could not perform any of the functions of a job crawshay how to broken ankle correct and that and thirty one dollars the note from the doctor specifically says that they're requesting this person the plaintiff to be off work for a total this is a temporary total disability whether or not she was entitled to time off for sick time or for vacation time or from that time it doesn't matter because when we look at the final result was she absent from work and how did that affect the contract which was the sole reason for her terminations lawler tells us and that's a th circuit case that the terminations has to be because of her disability she was not terminated because you're a small company and she had a broken ankle and twelve weeks is too long a time my view is that under the contract after thirty days the answer is yes  that's what the reason has to be but we have to look at the days here because twelve weeks out was eighty four days plus the five days gets a say eighty nine dollars now she comes in on february th with a rd no now is there is no prognosis there's no prognosis or there's no guarantee she's going to be well after the five more weeks correct and it's the same language used in the other two notes and  with no prognosis and by the way i would expect that someone would most people would recover from a broken ankle but not everybody does not everybody does is this one of don't have issues with bugs in my hair obviously it seems to me that's a a really tough case for the employer humphrey didn't get a lot of play before the just record but in the brief to this court understandably they made a lot of play on the humphrey case can you explain how you distinguish that place where someone thinks they have bugs crawling on their head and they can't leave the house versus a broken ankle or a broken foot sure in this particular case the plaintiff was declared by her doctor to be totally disabled temporarily totally disabled by her testimony this point of said i could not perform i took the deposition i could not perform the essential functions of my job and she further said when i asked her in deposition it's part of the record she said i don't know if the doctor will release me on april st but juxtapose that with regard to what's also in the record on the testimony of willie marshall he's the owner of the company in which he testified are you going to do about it the problem is for other jobs at risk we're in breach a cop my clients in breach of contract and yes it put itself in breach of contract to grant these eighty nine days and by the way that under samper versus providence st vincent medical center which is a th circuit case from two thousand and twelve if one is not able to be at work one cannot be a qualified individual particularly where the essential job functions require teamwork or face to face interaction so i distinguish it by being by stating that this person again could not do any of the functions of a job and when anybody has this ability prevents them from being at work for one day three days they hit their head they have a concussion protocol they break their ankle they have a job that requires walking and they can't walk for three days i mean it's granted by the employer in this case the employer had contractual obligations to staff the office in this case the employer had to fill the position that's the difference a commo and we quote acceptable staff vacancy period not to exceed thirty days so no they were not in breach on day one yes they were in breach breach on day thirty one and yet and yet which put her out for another five weeks and my client allowed her another seven days before saying i have to terminate i have to fill the position and this is why the project director s not a reasonable accommodation that's what we were faced with and in fact in fact the plaintiff was totally disabled status wise by her doctor right through september twenty immediate right to sue and she sued us so i'm looking at the case law and where and judge bench ben savant vango looked at the case law not just from the th circuit but from this circuit from the employee's physician stated that the employee was totally disabled so what the plaintiff in this case is asking this court the th circuit do is essentially over wool your own decisions your own  i have a minute left i don't know if you have any questions i do want to say that it's undisputed that the plaintiff was totally disabled it's undisputed based  number one issue was this plaintiff a qualified individual who could perform the essential functions of a job with or without reasonable accommodation the answer to that is no what or what about an argument that could have been protest contract and the terms of the contract all undisputed and the breach that my client was in of the contract is undisputed there was no evidence presented the plaintiff never presented evidence on that yes thank you i think the clarify a couple things defense counsel said no prognosis that she would ever be better about her condition she he referenced suppose a conversation that my client had with will marshall i don't know if the doctor will ever release me or will release me on the april st date none of that's accurate and we cited that repeatedly if you look at it excerpt of record sixty six is going to page sixty six my client was very clear that when she had that when her leave was up in that twelve weeks up she was very concerned because she hadn't had her you final doctor's appointment to get released she called willie marshall this is her testimony i submitted to them the doctor note that i got i called mr willie marshall i sent him  text message with a copy of the doctor's note explained to him i was in between doctor's appointments that my doctor point was going to be in the beginning of march and so i knew that had to be back in february but i hadn't seen the doctor so i hadn't got a release and i had to actually force myself  get that doctor's note i had to go in early to get it to get and he they give him a pretty cool st just like i catch on but she then said that she told willie marshall that he was going to see me earlier and he'll sesa see if i can go back to work on accommodations before that time even and this is  conversation they had and what did mr marshall say no worries is this is her testimony he said don't worry i know you had a traumatic surgery just take your time that's why she was so shocked when eleven days later she got this terminations letter she's like i had just called and i told him that i hadn't seen the doctor to get released he was going to see me right away i needed five more weeks is what the note that got by could make it even quicker this is part of that conversation that employers and employees should have about you know this is acting in good faith to discuss these things and he told her don't worry about it and then he fired her and so this is in so you want to talk about pretext we talk about pretext they never say anything about when they fired her about this contract that's on the record off that they gave her terminations letters and why it's in the record your twelve weeks are up reported we assume that you abandon your position that's what the terminations note says right and the other thing you know that we're talking about when we say that whether or not she was qualified or are they gave her notes you know they talk about this this that they were in breach after thirty days you know the thing is is that they gave her this lease she had she was entitled to the sleeve and if they couldn't do that if they need to work something out they had a duty to engaging good faith in some sort of interrupt the dialogue like we talked about she had jobs the best job the things that could be done she head she could meet with her doctor talk about doing something else they just don't get to run roughshod over someone by saying take your time you know he says no good deed goes unpunished how is it punished that they lose their contract was there any adverse consequence taken this is part of the undue burden analysis that hasn't been reached there was no consequence they will in their own corporate policies give people money if that's going to put them in in violation of their contract why would they have that as one of the things they give their people encounter and just to be clear  discussion of that the employer was somewhat under the gun because of this contract but i take it your it's your position that that is a separate legal question that's whether or not there's an undue hardship exception that would allow the import of take those steps that's different from whether there is a reasonable accommodation absolute mess with the supreme court said the priest make or says if there is a plausibly reasonable accommodation right then the burden shifts to the employer say but it would create a new hardship and that's where i think they have the makings of a defense in this case and that's where the focus should be as i said  sure and so typically we know that the burdens of proof in these cases on retaliation is that there is an adverse employment decision is taken to protect that activity a member that was one of the things that they conceded the district court i think that this is what does bennett was referring to where the district court said requesting an accommodation is not protected activity itself and that's absolutely wrong of statutorily overturned right and they conceded that's true she got it wrong the nearly roper line of decisions that they cited was actually overturned so the district court got that wrong we've all admitted that i think that's what the judge was referring to and so that is protected activity and so she had two choices when she was she could either come back to work right or she could assert her rights and ask for an accommodation and real quick because it's a huge decision this is the th circuit decision and in this decision there the court said pretty clearly the interactive process requires communication in good faith exploration of possible combinations and then says moreover we have held that the duty to accommodate is a continuing duty that is not exhausted by one effort and then they go on to say that if a reason more competition turns out to be ineffective in this case that wasn't quite enough and you more time the employee with a disability remains an able to perform essential ultimately said can i work from home and they said no and they said and the part of the army was we did all these all these already and the nih certain said yeah they didn't work and so you still have to assess each request on its own merits is it plausible is it reasonable could it work and then the question is if it could is it in the new burden though right who would there be a problem and so that's what happened in this case she did seventy five more weeks and she actually won a conversation that really marshall's like maybe not even that much i just need a little more time to get cleared and and they said no