am i will move the admission of samuel joseph g s of detroit michigan who is a member of the state bar of california and otherwise qualified under the rules of this court and also the court lannes of detroit michigan who is a member of the state bar of michigan the state bar of wisconsin and the united states district courts for the eastern and western districts or i'm sorry the eastern district of michigan and the western  it please the court and judge boggs may i reserve two minutes for a bottle so this is a case involving a district court clerk in the district court in holland michigan who was terminated after she requested a three week extension to her leave of absence in this case comes to the court after having been dismissed by the district court judge who granted summary judgment to both the county of ottawa and to the fifty eighth district court there are two issues on appeal is whether the county should be considered the kohen ploy or of the fifty eight district court and the second is whether the employer approved or whether there was a legitimate question of fact over whether or not it would impose an undue hardship on court operations in the county to grant this leave extension and before i jump into the argument i'd like to address specifically the circumstances surrounding the leave of absence it's a little bit complicated and let me just set forth what those facts are so re suffered from a pulmonary embolism in a cerebral brain clot in december of two thousand and ten in january of two thousand and eleven she requested a leave of absence and the decision was made to grant that leave of absence on a part time basis from january eleventh through june or through july thirty first  actually the leave was approved january thirty first but it was retroactive to january seventeenth and then as a result of that leave of absence ms matt stopped being the court recorder for judge jonas and she was put into a half time position as a general district court clerk and the general district court clerk was substituted for renee martin became a full time court operator for judge jonas that seemed to be working out fine until june third when the county and court officials approached ms mott and reduced her leave shorten her leave time by about three weeks so instead of extending the leave to july thirty first it was extended to july eleventh and she was given to return to work day of july seventeenth it's not i'm not clear why there's that we gap but then she accepts that and on friday june seventeenth so now we're about a month before the end of her leave of absence she has a reaction to some medication and she talks to her employer about that and says she's going to miss work and there's a discussion that takes place with the county human resources representatives the next day june twentieth this is a monday she reports to work and she's told that she has to leave that she can't continue working on less she gets a return to work authorization from her physician and she also gets disability paperwork in the county encourages her to apply for disability benefits that are available through the county's personnel policies and so she does that and on june twenty eighth twentieth she submitted this disability leave request and asked for a leave to july thirty first which was the date of the original leave request that same day that he was denied and she gets notice of that by county personnel and the next day july twenty first her employment is terminated and she gets that notice from the county that says your employment with the county is terminated and then a few days later she gets a letter from judge jonas saying we're sorry to hear that you're not able to return to work we wish you the best so those are the facts you address the reasons why she was told that that really what's at issue here whether or not she was able to work and the reason that the judge in that instance felt that she was not able to continue functioning with her continuing to have the sleep certainly on her so that's the second issue and i'm happy to go directly to that one which is is there an undue hardship here and  before you have new hardship question if you have a question is that a reasonable accommodation at all and can it be your reasonable accommodation when she can't work at all yes the questions are intertwined your honor and some of the decisions indicate that there are really two sides of the same coin is it a reasonable combination is it an undue hardship so that in the usual kind of case  accommodation that is requested involves helping you do the work a special share of computer special climate control room etc and then you say maybe that would be reasonable for general motors but it's not reasonable for joe's hardware store but here the recombination that's requested is simply not to work in that it is a request that a leave of absence be extended for three weeks and which is now that's not working correct and that question was answered your honour's in the case of sears vs ne ohio all timers research center where they said that there's nothing extraordinary about an extended leave request being a reasonable accommodation under the americans with disabilities act it was also a drastic your honor in a  case that you sat on judge boggs it's cleveland vs federal express eighty three fed app seventy four it cited in our brief it's a two thousand and three under reported decision where the court approved a six month  rule that it would have been a reasonable accommodation to allow a six month leave of absence for an employee who was not able to work and so i appreciate your answer i just want to get everything in context because there's a lot of moving parts here you're talking now about the eighty eight and not about the state statute is that correct that's correct your honor and i guess my question just as a framing question if we were to decide against you on the issue that you're now currently discussing and i'm listening carefully to your answer but if we were decide to decide against you on that that would foreclose the need to address all these other issues about whether there's a joint employer or there is a joint employer and all of that stuff is that true that's true so yeah if if there is all i want to know ok so this if it goes the wrong way for you it's it's the end on all these other issues as well so that's all i'm asking i agree thank you so that's the question whether this three week leave of absence extension is a reasonable accommodation and in resolving whether or not it would work in undue hardship there is a regulation that identifies what the employer should consider and that is forty two u s c section twelve eleven in print ten in print eight in it sets forth four criteria the nature of the cost of the accommodation the financial resources of the facility the financial resources of the covered entity and the type of operation involved with a covered entity and it's the position of the plaintiff your honor that that analysis was not undertaken in this this case because at the time that the request for the accommodation was made there was not any sort of interactive discussion with the plaintiff or her physicians regarding this request for a leave of absence in fact she was terminated the day after she made the request and the denial occurred on the same day that she made the request you know the principle you just stated about interactive discussion we see that in a lot of  the cases again it is normally you know i need a special type of computer company too expensive how about this kind of computer go back and forth do you have any cases where that interactive  requirement has been used in a leave of absence no work i believe that that was discussed your honor in the case that i referenced previously  i want to use my remaining time to talk about the insurance joint employer doctrine and that has been recognized in the sixth circuit as something that is a political that was the swallows versus barnes and noble case and the court said that the doctrine recognizes that entities are separate entities that are separate but the chair or coated turman matters governing the essential terms and conditions of employment are joint employers and in this case your honor it's clear that the county was paying rent a mob it's clear that they were decided her benefits that the personnel policies were being administered by the county and i cited to the court three cases principally that involve these specific facts this issue has been resolved in the seventh circuit in the third circuit and then judge ludington i'm sure judge berg is familiar with analyze this issue extensively in a case that was decided in the eastern district of michigan says county of mt rancy and all of those decisions involving this specific fact pattern where you have employ a stand simply working for the court but being paid by the county the courts all concluded that that constitutes sufficient evidence of this joint employer relationship i ask you a question about that doctor and yes are from whether it applies to government agencies you're relying on the joint employer not the single unitary employer theory correct your honor and it's my question is is it the case that when you're under the joint theory that you just look at the actions that i guess i'm asking and once you find that their joint for some purposes does that mean that any discriminatory action by one is the responsibility circuit case to my knowledge this is a this is the first time that this issue has been presented to the six circuit under the government i'm talking about whenever you use the joint employer scheme well that yes so if you look back at swallows it talks about joint employers or employers a jointly determine or share code a term in essential you could certain element of that in a certain case let's say you have a joint case where this and this join employer this part of the pair of joint employers makes these kinds of determinations which are important and fit that category and this part of the joint employer scheme makes these kind of decisions which are important for and which meet the qualifications that you've described for a joint so you have a joint point now what i'm asking is when that happens if only one of them discriminates can you sue the other one under the joint theory and then there's only cases from foreign circuits that deal with that apart from whether we're talking about government agencies or not or you understand my question i think i understand your question i think because the language from swallow specifically says that they either co determine or share in determinations the essential terms and conditions plural what that means is that if you have an employer like this situation where you have a judge perhaps that makes the ultimate terminations decision but you have a county that also participates in you know employment status i'm giving you the hypothetical where one of them had no participation but was a joint employer for some but met the qualifications for joint employer because they make some kinds of determinations but had no input into the into the allegedly discriminatory action at issue and you're saying it doesn't matter they're still liable or it does matter i'm saying it doesn't matter all right and you're going to sawyer that on your record your cases for that are only cases from other circuits you know have supreme court or six circuit case that say that regardless of whether it's whether we're talking about joint government employers or joint non government employers joint employers in general you're saying that one of them is responsible for the for the discriminatory actions of the other but there's no cases that support you just say we should adopt the reasoning of the other circuits is that accurate not quite where i understand what i'm asking i'm trying to see what the rule is because this is the assumption seems to be at least in the briefing on the other side that you've got to have you've got to have some discriminatory action on the part of the unique one court of justice there really ought to be a per se rule that the county can't be a joint employer the reality is the western district adopted the plain is fuel law and said it is theory radically possible that a county could stumble in michigan into the joint employer relationship and i am going to look not only principally at the decision making that is objected to but also these other essential terms and conditions of employment now parties go out and do discovery so after discovery the western district court of michigan and i generally don't like to read from court opinions but in her ruling she said this that is to say the essential terms and conditions of plaintiff's employment which are at issue in this case where the denial of a point is requests for additional leave and then her corresponding terminations which were undisputedly exclusively in the discretion of judge jonas there is no county involvement it off actually then she said this poor fellow your yes and it said forty five forty six she also said the other substantive matters and essential terms such as authority to hire transfer promote discipline discharge and direct work assignments none of those was there any evidence that out of the county was involved in those decision making so my question if you're get to this issue it kind of boils down to this i'm looking for law not what the court said below or what some district court has sa d law that would control us on the question of whether under the joint employer doctrine regardless of whether it's in the minister in the public or the private area under that doctrine and under the a b a i guess  if you haven't enough of these types of decisions made by both employers generally speaking we look at the whole group of kinds of decisions they make and sure enough in my hypothetical there's enough for each of them to be a joint employer in general but only one of them was involved in the discriminatory determination that's involved that's challenged in a particular case is it your have you don't have case they have case now others other than in this situation your honor you don't have to reach there because the lower court recognized there wasn't any facts to support any involvement in code determination right now i would advocate for you to that's our case for up for us to appeal i would add this that i made an alternative of an amendment argument which i think makes what ever ruling the court made on the join is that not the case well the county is the only entity sued under the eighty eight the court is not there and the court will be gone and in this case the only relief requested by the plaintiff is reinstatement there no back pay because she's making more money there can be no front pay because she wants reinstatement and the judge testified in paragraph twenty of her affidavit i got along famously with her there is no personal animus and so your honor if this case for remain and if somehow you reverse the lower court on the on the finding i just made that there is no evidence of a joint employer in this case using his version of the law you would be stuck with an eleventh amendment problem because the request is reinstatement and ottawa county can't give that frankly even the court can't give that because she wasn't just a clerk she was the court's secretary court reporter which under michigan law under the court rol six hundred five ninety one is the exclusive decision making of the judge herself so in this case i couldn't give the relief he would be seeking if there was an  against only the county and in this unusual circumstance i think the eleventh the bend apply we're talking about what precedent there is on going or you're not our circuit the eleventh circuit  single employer case when my and if they're not relying on mr grant singer can address that in more detail but my understanding is it was the same theory your honor that was addressed in the lies case in the court concluded that you could it it was the joint theory not the single judge that's my understanding mr gratz and your can answer that more specifically your honor i apologize judge box getting to your question about whether she was a qualified individual i thought this court was prescient in walsh whether it intended to or not it in to subpoena to this case we spend a lot of time in our briefing discussing whether this six week requests for additional leave w short indefinite which is possible under the a day but in walsh this court concluded that you really have to prove two things to get out of the normans judge biogs was alluded to and approve a leave under the today one is that it be short and definite to that it be accompanied by a reasonable prospect for recovery and that's where this case fell if you read judge jonas's affidavit in by the way she was prescient because was disabled for at least six months by her own admission after august first what the judge concluded was this she wants a few weeks to go to the university of michigan where hopefully they'll diagnose what is causing her mblaq we're not even through the diagnostic stage after six months and so the hope is the diagnose it and you can read it on page eleven of the joint statement of facts where she testified to this she's waiting for the university of michigan to try to evaluate her they haven't even seen her in find out what's causing her condition then hopefully they'll come up with a treatment then hopefully she'll have a period of convalescence and the judge said i cannot wait any longer so under walsh itself she's not a qualified individual under this unusual exception to the general rule of a da which brings us to the final question of undue hardship for the plaintiff in the reply brief says well all of  judge jonas's analyses are subjective and he picks out one more she said my court is not projecting consistency for the sake of argument i'll say that subjective but every other paragraph in her paragraph affidavit was objective lee verifiable the replacement court reporter wasn't certified that met other court reporters had to do or transcripts she didn't understand the equipment and i had to wait there while another court reporter from another court would come in and tell her how to work the recording equipment she couldn't do orders or she couldn't do opinions in small claims cases like my secretary should be able to do other secretaries had to come in and complained about it to do her work she wanted to be relieved of this responsibility and we were out with out at least a full time position we were down to a half time position during of this period of time all of those were objective facts that were verifiable that the plaintiff failed to put in genuine issue so for all of those reasons not to join it representing which of the two parties i represent the county and dolan handled by this case by this court under the eleventh amendment that basically said in michigan because of the dignity factors under the seminal tried case we should not weigh did in second guess court decisions by the state court that would be most helpful your honor to my client as we go forward but i leave it to your sound discretion as to how you handled it under your  mr venison and i have done this for a while and he always takes my time i think it's important remember first on the factual matter here the court recorder secretaries the most important position our elected judges have in here you got  document on there the leave of absence was not granted on a full time basis we exercise our right under a family to put her in a part time position other than the court recorder because it was an undue hardship in january first not to have a full time cler i think it's important when you look the question you're asking on here is that i'm an old time labor lawyer i do a lot of things in there and when you come in the concept of joint employer all struggling with it's a concept that comes from labor law in the private sector where we have entities that can create everything they want to so they create this and trying to have some different provisions which they were here were critical portions government is different the law is case is very clear in point it talks about but that's only the head dress because what they were talking about is aggregating the number of employees they can even get into court the concept they that there is very accurate though when you start talking about what we have is that we have a system of government that is set up by statutes and by constitutions and i think what lies said very clearly is that when you look at that there's a presumption that whatever the state sets up is intended to be that way because you can't create interlocking things unless you do it we have statutes allow people to do in a government cooperation which we have to create it you have to determine the employer is so i think it's critically important when you look back at michigan from here is that you know  remember comedy and federalism says you defer to what the state is set up unless there's some reason to say it's totally unlawful in here when you start to make a lot more sense in the single employer to say those in the joint employer cont arguably make the argument for them arguably it's different because you're just talking about particular decisions in which which entity was making that decision rather than talking about changing the wiring diagram for the for the state which you would be doing if you were talking about the single employer employers just kind of a legal fiction there all kinds of errors with the trying to find out is how they're going to put liability elsewhere in here when you look just a legal fiction dealing with liability then it doesn't interfere the way lies was concerned about well i i think when you look back at here we do in michigan from there is that we fought the battle in michigan regarding co employee or enjoy employer and so employer and in here i remember being on the forefront when i had to tell  judge's order was an order and he wanted to throw me in jail but he didn't from there we eventually got it supreme court threw it out but in here we've developed a system in which our legislature attempted to make the county because employer our supreme court said not in this state you know we're a separate branch of government but they said we should cooperate and they divide the things we can cooperate you can let the county for financial reasons take care of some of the back room stuff but every core employer part from hiring firing disappointing is reserved and cannot be delegated away from the court and that's when you look back at the assessing and make some kind of this is no in there that they can do this this in this but they don't know we have to do it what is the first north they can do  the court has been directed to say cooperate with your funding and if you wish to utilize some of their services you know to allow instead of building up your own empire and having your own h r department i'm just asking you what you said a minute ago when you said they can do x what is it that they can do what can't they do but can this is the saudi work the county can't do anything on their own nothing we can't is the court not on their own they can do nothing on their own others the right is the check to fund us what if when they're writing the check they decide they discriminate against you can't discriminate in writing a check i could probably figure out a way but you're sort of fighting the region we have to agree to that and we used to have big fights go to litigation over what things are going to have there we solved it in our supreme court gave us a direction in the ministry of war nine hundred eighty eight dash five be nice follow to the best you can  there we don't want there you're answering the question about the things that the county can do the county can't do anything is delegated to take care of certain kinds of of of ministerial neuronic the county by statute has without even asking the judge and they do it in a way that discriminates against disabled people you can say well i'll never happen or it's impossible or they're doing it at the authority i'm asking you what if they do do that you don't think they can do that it's impossible you know they do whatever you will hear and come up with i but they do our payroll and we tell them how many hours people work we do all the record keeping there they write the checks so they're acting just on our behalf from there if they write a check that's wrong we tell them you need to make sure this person gets a full paycheck if you don't want to answer the question that's fine it's it's not a question i can answer your honor because you know you can't be discriminated against by having your check not come in in the right amount because somebody judge boggs the cleveland decision is a reference to pages nineteen and twenty of our reply brief my apologies it did not make it into our table with ortiz i think it's because it's it's included in a cite to another case and judge rogers i want to get back to this issue of the joint employer doctrine and can the two entities parcel out the responsibility and therefore not be jointly liable by sitting my table i remembered the case of greece versus u s car gerri c e i do not have  cite for it is an f m l a case but it discusses extensively it's reported decision by this court how both the the temporary agency that provided the employee and the location where that employee work how both of those entities were responsible and i think the reason that it doesn't come up very often in the reason i'm relying upon these third and seventh circuit cases is because this whole situation where you have a court employee that's working as i say a stance of belief for the court but is being provided certain benefits in the counties involved in the administration of benefits in the administration of leave it's kind of an unusual fact pattern and that's why it hasn't arisen in the six circuit but i would urge the court to look at stance of lee at the robinson case and the other third circuit case that i discussed in the brief because those are our facts here where it's clear that the court made the determination decision but the county was stuck with the liability and one thing that the third circuit says is that the reason that we have to do that is because the county is an indispensable party if there is a judgment that's entered against the court it's going to be paid by the county anyway so i would urge the court to take a look at that with regard to the walsh case your honor i think that that's distinguishable because that involved an employee that was off work for a year said that he didn't  no when he was going to come back to work he had a hope that he was out and bashing were reasonable prospect of recovery how do you respond to that here i mean was the judge aware of her condition to such an extent that she would have been concerned and appropriately so that she's not going to be able to return by the date she asked for your honor i wrote respectfully would say that she could not have then there was no communication between my client and the judge regarding her medical condition there was no discussion that took place with her doctor all of these facts developed after the terminations and i had submit that the reason her condition got worse is because she had to go to a whole new set of doctors she couldn't treat with their original treating physicians at u of m she had to go to wayne state and they had a different treatment protocol definite in the sense that she said i can be back to work by august first supported by a medical determination by her physician that she should be able to come back to work and she testified my hope was to come back earlier than that so all the stuff that occurs after the terminations i don't believe is pertinent to the court's inquiry regarding that specific