appeal a plane a fuse was not medically required to work from home he preferred to work from home in fact he was medically cleared to commute up to a half hour each way the law doesn't elevate an employee's residential neighborhood of choice above the employer's reasoned decision about how and where its job should be performed as a matter of law in a commuting length case like this one it's the employee who has the burden of using reasonable self help to manage his or her commuting length which direction and that follows from employment long a wide variety of contexts commuting under herself to use self help to manage his or her commuting length restriction to get there is if the employees obligation to get the work and all the reasonable accommodation is made at the workplace but you don't have to do anything else that the employer accommodates in the workplace or but the employee through reasonable self help must get to the workplace and as a case on that basis well we have cited of a raft of district court cases and the guidance on the issue of reef there is no case law that's correct there's no there's no california law addressing the point one way or the other my suggestion though is that the commuting obligation th employees does follow from a wide variety of employment law principles namely commuting time being the employee's responsibility commuting expense mileage being employees responsibility if it's an employee is injured during his or her commute worker's compensation is an available for that if an employee commits torques while commuting to work that's not the employer's responsibility either in a whole host of context than the you get yourself to work here and we will do these various things to make it easier once you're here is that correct and no one more than that the company was prepared to discuss subsidizing his relocation to permit him to live closer to the  hughes admitted on cross examination of page one thirty of the transcript he was not interested in any accommodation that require him not to work from home the interactive process was shut down at that point because he said if you're not going to your home and i'm not interested now i'm obviously aware of judge roberts opinion in the humphrey case which limited or recognize a limited exception to the normal princip e that case was a plaintiff who was unable to commute at all the humphrey plaintiff was a transcriptionist preparing transcripts obviously can be done anywhere and that employer had allowed other employees  in similar positions to work from home and for some reason in that case that employer of suddenly said no you can't do that this time for that case is different from that one because in that case the humphrey plaintiff was restricted from commuting at all that that plaintiff couldn't get out of the house as as just perhaps and said but mr hughes by contrast declined to use any self help he could commute he just chose to live outside the thirty minute right and there may be all sorts of good reasons why he wanted to make that choice but it was his choice to make and it's not us food services job to subsidize or to bear the burden of that kind of lifestyle choice responsibility to present himself or herself at the workplace except in perhaps unusual circumstances such as the humphrey plaintiff who was not able to leave the house at all and that is that a distinction without a difference in other words  she had a disorder the didn't allow her to go out in public but here she could stand to be out in public for three blocks which you've had to move to three blocks from  i think you can probably pick real hard and difficult cases that maybe press the outer limit of of the exception that humphrey case recognized but that certainly isn't this case this is a case which aren't you advocating a broad rule that in this wife's residence and i would refer you to excerpts of the record page ninety four where the plaintiff admitted my wife's job wasn't the reason i just didn't want to commute so let me turn to that second reason separate and apart from the threshold obligation of whether in some circumstances work at home is a reasonable accommodation even assuming that it can be it isn't a reasonable accommodation here  and a combination by definition is not reasonable if it would sacrifice the jobs key functions and as i mentioned earlier in the humphrey case the work issue was transcript preparation which of course could be done anywhere and here by contrast the job necessarily required teamwork and on the spot collaboration among coworkers first on the first floor of the person on the first floor was the person who worked in the we'll call office and this was a special customer care specialist who participated i needed to be on the first floor to deal with walking customers and so necessarily he had to be removed from everybody else but even that person was on site  that's not an example of someone who was free to work anywhere that person was working on site in a particular location on site for important job related reasons and where collaboration where teamwork was necessary and just a matter of steps that is this guy's credit he the fremont hold and then ask your friend or something i don't think the record is goes into an enormous amount of detail but the testimony on that point is a page thirty nine and forty of the transcript you need to interact physically where there are certain special orders that are unusual pages thirty six and thirty seven of the reporter's transcript and pages seventy four and seventy five of the transcript the need for in person communications the person that you asked about who's on the first floor had the ability to do that in just a matter of steps they could interact themselves personally to get or that person was not working offsite what do we do with judge girds who civic finding page eight of her opinion the court requested and then goes on to say us and offer no evidence of undue harm to you what do you do with that heidi we're not challenging although we disagree with the findings that deal with the issue of the rotary phone system and certain other technological aspects of the job i don't think she analyzed them correctly and as we point out elsewhere in the brief we don't think she allowed on our side to present rebuttal evidence but we're assuming that those findings are correct for purposes of our appeal now she simply did not analyze the issues of interpersonal interaction and teamwork she analyzed in detail the technological issues but did not analyze at all  need for interpersonal interactions with the interpersonal interactions it's required of those that i just describe your honor dealing with the credit issues dealing with special kinds of orders  and others have to be resolved on the spot a spot on the spot quickly to avoid causing a customer to become dissatisfied and what i would suggest is this was a company  that was trying to figure out a way to build a better mousetrap figure out a way to to deal with customer care and the law should not stand as an impediment to that the law shouldn't say that if the employer is trying to do the job better if it i not apply for any job anywhere and he did not even look for jobs except jobs that would have allowed him to work from home he admitted that he did not look for any job that he could have performed consistent with his thirty minute commuting restriction that a year after he left us for food service he voluntarily relocated moved away which i think is curious since he was taking the position that he shouldn't have had to move but even after he moved away he didn't look for any jobs anywhere either so we suggest that at worst the should be a zero damages case with no attorney's fees because he failed to satisfy the the very threshold obligation of making reasonable efforts to find work that he could do and by not looking for any job outside the home not even within a thirty minute commuting radius that he was able to work he failed to make that that  he said you are not are here you go back to my question you were not arguing that verdi finding that i read you was wrong i gathered from you for the response what you're saying is she failed to make the necessary finding on another aspect of the question yes what we're assuming to be true the findings as far as they went but she simply made a findings about the issues of a team or cooperation and the need for personal interaction other than those that were issuing that technical technological dispute that was tried and you filed a motion for further findings who's denied no from home can be a reasonable accommodation if the employee can perform the essential functions of the position from home and there's no undue burden is on the california yes humphrey it's in the humphrey case interviewed both california's fair employment housing act and the federal eighty eight and i've also found that the e for vides that working from home can be a reasonable accommodation the point that the e e o c the equal employment opportunity commission on the federal level provides that working from home can be an effective accommodation and before we go into i do want to meet this issue head on but i don't want to gloss over the fact that from our position this is an issue raised for the first time on appeal in the pretrial conference or they take a position now they didn't have to do that and then this lady came in this changed things around to do a better job make a bigger house cram program and then they just decided to rearrange the structure of the work to the one that's correct but they also stipulated that during the relevant time period queues suffered from a physical disability within the meaning of the fair employment housing act and the combination of those two stipulations  was a disabled person within the meaning of the act therefore he is entitled to the benefits of the act and that us have accommodated his disability for three and a half years by allowing him to work from home removed from the trial any issue of whether or not us out had a legal duty to accommodate the limiting nature of hugh's disability and that's why in a case like this we had no medical testimony we had no evidence of the additional benefits to hughes of working from home in addition to to too accommodating of the commuting issues he moved we stipulated to sufficient facts to get beyond those those points and tried to the district court only the issues of whether or not q s could perform the essential functions of the new position from home whether or not us half suffered i'm due burden if it allowed him to continue that accommodation that it all already offered to him and what were huge damages in the district court made contrary to our councils argument the district court did  position which was not in essential function of hughes former position is official access to us that's a computer program citied asking are and that's and that's why this trial was focused to a almost exclusively on the issue of whether or not this change in building this better mousetrap and utilizing new computer programs whether hughes could access those computer programs from home because he accommodation and then with to the way pulled the rug out from under him without investigating whether or not these new computer programs could be accessed from home even though they took the position that feet could not continue to work from home because you are now using new computer programs and what is somewhat ironic is that stipulation that we are not disability discriminators when we need to we accommodate our disabled employees we allowed he used to work from home as a reasonable accommodation for his disability for three years but now we doing things differently and now we can no longer do that because we have these new computer programs and we're very sorry but we just can't continue to extend that accommodation when they lose at trial on those factual issues of whether or not he used good access those computer programs from home and now those factual determinations that they can't challenge on appeal they suddenly come back to square one that said well we never had a duty to accommodate him in the first place and that's simply not a lot and in california courts have routinely rejected arguments by employers that are a rigid application of some per se rule that we don't have and a duty to accommodate the hallmarks of the fair employment housing act is the flexibility it requires of them players you have the universe of physical and limb and mental limitations that disabilities can impose upon people you have the universe of different job tas different of deliveries different things that employees do not want requires maximum flexibility in the interactive process to determine if an employee can be reasonably raising in this case where the employee in the sergeant case couldn't make the commute to to the new facility in san jose it was too long to her her bath and the employer said we have as a matter of one no obligation to get the employee into the workplace our obligation starts at the office door and the court the next case said it rejected the defendant's attempts to carve a rigid rule from what by all accounts is a law that was designed to encourage flexibility and accommodation and it ruled that if the employer does have an obligation to assist the employee with all aspects of the employee's distant disability if he can do so without unduly burdening its operations it's that flexibility that prevents courts that courts will not apply rigid rules same thing with buckingham in buckingham the employee acquired the hiv virus the employee wanted to move to los angeles because the employee thought he could get better treatment for his illness in los angeles help the employees get the best medical care that has nothing to do with his job and the court said we are not drawing those types of hard and fast rules there's no per se rule against transferring an employee to a different location if the employee feels he can get better treatment for his disability that's the flexibility that's required and what who are provided and what us after continuously is there is an established procedure stablished framework and structure to these types of cases the district court follow that structure in her findings of fact and conclusions have stipulated to that and if the trial conference or the next issues the employee's burden of establishing that he is a qualified individual meeting with accommodation he can perform  essential functions of the physician again the factual question is prove that in this case then the burden shifts to the employer to establish that accommodating the employee unduly burden to its operations us have failed to do that in this case they offered no evidence of undue burden that's the structure those are the only issues that are presented in a case like this and contention is completely outside of that framework that we look to their contention is we're going to look at not at the disability continue to say we have no obligation to hume's ability to commute is one of the limiting factors that come from that disability there's only one time when you look at the limiting factor of the disability to determine whether or not it is a few look at its nature insufficiency to determine whether or not the employer has a duty a legal duty to accommodate it and that is in determining whether or not the limiting nature of the employee's disability  major life activity once you get past that the employee is entitle to all of the benefits under the of the statutory scheme and the employee has the employer has an obligation to accommodate have stipulated to that fact it's stipulated that hughes suffered from a physical disability within the meaning of the particular flavor of that code section five and in that government code section defines physical disability as a physical medical problem that subsection the limits a major life activity once you get to that point fuses intitled to the benefits of the statute assuming he can prove that he's a qualified individual and with or without accommodation can perform essential functions of the physician for want to turn per minute two entirely separate grounds for liability in this case which is u s s failure to engage in the interactive process that inquiry is strictly a factual one questions of whether or not us are engaged in good faith whether their efforts were timely whether u did everything within its power to try and find a reasonable and effective accommodation for his disability all factual questions very keen says they offered to subsidize a move closer within half an hour i guess to contends that it offered to to a driver they were going to pick the hughes or the earn thirty seven thirty eight thousand dollars a year they contended that they were going to pick him up driving to work every day and had and those that opposed alleged accommodations were never mentioned in any of those in the district court resolve that issue is that this report resolve all of the factual questions on the interactive process claims and resolve them all adverse to us out and i submit to this court that the only that an independent basis for liability surely a factual one and us that has not established a clear air i want to touch briefly on the issue of mitigation of damages fi employer bears the burden of proof on all aspects of mitigation of damages in california us have cites new york law the lead for some proposition your clocks not helpful here in california the employer must prove specifically what additional of the lable information  occupations are available and the dollar amount that the employee could have or had the employee pursued that employment the district court found the us i've offered no evidence on that and that finding is supported by the record us as cites a case where west versus bechtel and what happened in that case the court in west declares that law that the employer has the burden of proof and the employer must offer this evidence in that case the employer where offered evidence that in fact that employer after calling this employee that from a thing with saudi arabia had offered this employee numerous other comparable positions and have a comparable pay but the employee refused to accept it and based on that finding and that evidence the courts that this employees  to mitigate that there is no evidence in this case what other positions were available to use and a dollar amount that he could have heard had he accepted those and in fact the district court did find that he was made efforts to to accommodate but he wasn't successful i'm sorry he made efforts to mitigate but he wasn't successful at it and then went on  king thank you several points quickly we're talking here about an air of law not an error of fact even if you assume that the district court correctly found that some essential functions could be performed at home there's no question here that the employer in trying to design this better mousetrap in trying to redesign its customer care function concluded that it was highly desirable to have the team working together on site and the error of law is that mr hughes's preference for his neighborhood of choice doesn't trump the employer's legitimate interest in gathering people in one place and having them or together as a team  now you first have to decide whether it's a the accommodation is reasonable in concept and only if it's reasonable in concept he then get to the issue of undue burden and so we think we win under either pro that just a commuting length case doesn't fit in the pigeon hole of reasonable accommodation that all counsel cited the sargent case to the contrary they have one district court case we have fifteen with all respect to judge patel i think that was an incorrectly decided but it's also factually different from our case because they're the defendant created the problem that plaintiff didn't live near the work site and the employer then frustrated that by transferring the individual away thereby making it impossible for the employee to get work counsel side of the buckingham case that's not a commuting case at all like hey simply stands for the well established proposition that if an employee wants to transfer to an existing available position within a company that can be a reasonable accommodation of course that's correct but here what he was asked is that the company recreate for him a position that it didn't want to have anymore  wanted to deny the company the right to create better mousetrap this is not an issue raised for the first time on appeal excerpts of the record one twelve supplemental excerpts to forty two to forty three this is what we've been arguing about the whole time the fact that we accommodated lowercase a helped out hughes in his earlier position is not a concession that was a reasonable accommodation it's not a concession that was required even then the company was simply being nice and it's certainly not a concession that the company forever is deprived of the ability to try and build that better mousetrap council used the term maximum flexibility and i thought that was a little bit ironic because the one thing that's undisputed in this case is that mr hughes showed zero flexibility he said i insist on working from home period that's page one thirty of the reporter's transcript he showed zero flexibility  showed a great deal another earl of law that's inherent in counsel's argument or at least implicit in it is that the employer has to grant the most preferred accommodation that the individual seeks but that's not the case employer and you don't offer a reasonable accommodation not the most preferred accommodation and here the record is undisputed that the company discussed a wide variety of accommodations with with mr hughes and he rebuffed all of them at the threshold by saying if that means i can't work from home then i'm not interested there is not a dispute about the company's willingness to entertain a housing subsidy mr hughes for close that subject by saying i am only interested in working from my my c with the basic question there is no interactive process a violation on the employer's part and in fact the breakdown is the employee's responsibility where the employee as i said never deviated from his position that the only accommodation he was willing to in that in the trial judge's opinion is is an erroneous conclusion of law about what the obligation to accommodate entails finally with respect to mitigation yes of course it's true that the employer bears the burden of proving that again failure to mitigate and we did we relied on the plaintiff's admission that at page one forty seven of the reporter's transcript that he did not seek any job that didn't allow him to work at home we don't have to put on additional witnesses when the plaintiff has already admitted that his failure to mitigate didn't meet the basic threshold of the employee's obligation and finally with respect to the certification question that judge will raised