review of summary judgment this court must look at all of the evidence in the light most favorable to the e e o c and must make all reasonable inferences in the e e o c is favre there are three three questions for this court to decide was physical presence at ford's work site an essential function of harrison's job did ford fail to provide a reasonable accommodation to harriss is just ability and did ford retaliate against harris when it fired her after she filed a charge with the e e o c with respect to the essential functions of the n t and its implementing regulations are clear that an essential function is a task to be performed it is not the location where the task gets performed so for example the essential function of harris's job was to buy and sell steel and to ensure that there were no gaps in the steel supply when harris made a request to telework she was not seeking to be excused from an essential function of her job to the contrary she was seeking a means by which she could perform the essential functions of her job looking at all of the evidence in this case a reasonable jury could find that telework of one sort or another would have been a reasonable accommodation for harris's disability when she asked for telework she asked for up to four days a week and the reason she phrased her request that way is because ford's written telework policy expressly contemplates that an employee may be able to telework four days per week up to four days is certainly not the same as four days per week every week and in fact harris specifically unexpressed lee told ford that she did not expect to tow or that often had already been doing some work from home while she was working from home she received consistently excellent plus performance reviews i don't understand council how you can say that she had three different experiences with flex scheduling slash telecommuting and every single one of those experiences resulted in her failing well actually are there are two different experiences where ford had said we will try this as you know and see how it goes but in each of those two experiences for it had authorized flex time so that she was working outside of core hours and therefore she wasn't necessarily available when her colleagues were available or when the still suppliers were available the request that she was making to ford in this case under that requests she would have been available during core hours of the problems with telework that ford had complained about what not have arisen in this case let me quibble with you a little bit you say there's only two there's actually two under and one under john gordon so the record shows that there were three different attempts to work from home or with with plex time and or telecommuting the testimony is that she was unable to establish regular and consistent work hours at the office if she was to come in or be there when she was home during the clearances she been authorized to work irregular hours during the experiments and more over the reason that telework wasn't working for her when it wasn't expressly authorized by her supervisor john gordon is he told her over and over if you are too sick to come to the office then your chip is sick to work and don't work and when she didn't work sometimes from home anyway to try to stay caught up she was marked absent she was those absences were used against her later she wasn't even paid for this work all of this because she was prohibited to work from home and she fell behind in her work her colleagues had to pick up some of the slack and her stress increased the nature of her  have prevented these problems then for can't use these problems to say she wasn't qualified for her job in some ways for it helped cause these problems where you seem to be saying that this is a job that can be done either at work or at home and let's assume for at least in part that's correct and your seem to be saying that were she able to stay home she would have been able to work a regular schedule just from home and my point earlier was the record seems to say that she didn't work regular hours whether she was at work or at home doing during any of these three trials so could you address that more specifically rather than the more global issue well again i would say that in part she didn't work regular hours from home because ford told her when it was having these telework experiments that she didn't have to and then outside the telework experiments the locker women so you're saying that she was allowed to work ten for ten hour days but they said well we don't really mean it you don't have to work out with flex time with flex time she was given expressly given an alternative work schedule with flex time i think it's also important to note that there is medical evidence in this case there was a letter that lie to ford from harris's doctor saying that as her stress was reduced if she had telework she would get better her workload would increase her stress would decrease and ultimately she would be spending more time in the office a jury a reasonable jury looking at all of the evidence and making all inferences in favor of the e e o c could find that ford's response to harris's request was unreasonable in the first place she made her request her official request for an accommodation under the ada a in february it took two months for four to respond in any fashion two months to schedule a meeting and then at that meeting ford offered explanations for why it was denying her request that a reasonable jury could reject for first of all said that her job and they've repeated this over and over in their briefs that at her job at any given time in any given day it was essential that she be available for spontaneous in person face to face meetings however ford permitted a coworkers harris's coworkers who were doing the very same job that she was to tell work her coworkers were chello working one or two days per week now granted they were tell working on a predictable schedule but nevertheless ford's correct that her job in any given day at any given time could require spontaneous in person meetings those people who were teleworking couldn't do that while they were working from home yet ford managed to work disability under the americans with disabilities act and for whom working from home could be a reasonable accommodation to that disability with or without an existing telework policy the statute might require them to allow this one on schedule basis no way to know in advance what did if any she would actually utilise this that's an excellent question and that goes again to the reasonableness of ford's response ford chose to interpret harris's telework request the broadest possible terms and then cut off all discussion of telo or so that when ford said no harris understood that she had been shut down for it never asked her to clarify her request although she testified that if she had been offered one or two days per week that would have been acceptable and she would have taken that though if what if the requests everything else about the case is exactly the same but her request is up to five days a week with ford have to do what you're talking about they went over let's let's talk here or can they say are you kidding that no because the statute requires an employer to engage in an interactive process to try to determine the appropriate the request isn't reasonable up to five days it seems to me obviously an unreasonable request but there is an obvious alternative that ford didn't use they had an existing telework policy and her coworkers were teleworking pursuant to that policy the most obvious comeback for four years for her i don't understand why it's so obvious to poor but not to her because she felt shut down she asked for ford said no you can't tell work but here's what we'll do for you and what they did was they offered to alternatives that they called reasonable accommodations neither one of which was effective at that point where do you drive the authority that they had to then bargain accommodation they offer to she did she she refuted they did not offer her reasonable accommodations what they offered were two things first they offered that they would move her desk closer to the restroom and that was not a reasonable accommodation because as she testified on days when her i v s was bad she simply had to stand up and she would have an accident they suggested she could get around that by wearing depends which would not have taken care of the odor which as everybody knows from children with diapers can sometimes be very extreme an employer is not making a reasonable is not offering a reasonable accommodation by requiring an employee to humiliate herself in front of her coworkers the second thing at that forward offered was  help her look for a different job within for it that might possibly be more amenable to telework it is true that the a j contemplates job transfers as a potential reasonable accommodation in some cases however the regulations emphasize that this is an accommodation of last resort the purpose of a reasonable accommodation requirement is to enable an employee to perform the essential functions of the job that she already has so until the employer and the employee engaging in a good faith interactive process have exhausted the search for a reasonable accommodation that would enable her to do her current job it's premature to start talking about transferring her out this court means that if an employer does not engage in good faith in the interactive process which a jury can certainly find that ford failed to do here by cutting off all discussion of tallow or even didn't she cut off all discussion of the possibility of another position i mean so ford has to not only respond with a couple of options but then get into a bargaining about a number of days is understand your argument but when they propose you know maybe there's a different position that's easier for telework your position is she can just cut that off no further discussion well as i said a new position would be an accommodation of last resort to regulation but i mean is that your argument that she has no over supercool obligation to to work with them on their proposal well again as i said i do because the summary judgment this court must look at all of the evidence in favor of the e e o c and must make all reasonable inferences in the e e o c is favor a reasonable jury could finds that she could have been accommodated within her current job that some version of telo or whether it be  up to four days flexible schedule whether it be one or two days possibly on a flexible schedule whether it be a trial period she testified having she had familiarity with the symptoms of arriving yes she testified that thirty to sixty days of tel objections was she wouldn't be available but she would be available if she was working during her business hours as she testified even when she was in the office most of her work was done electronically she communicated with her colleagues down the most frequently my email or telephone so there is nothing i cherry could infer that if that's what she was doing in the building then she could certainly do that from her home as well she wasn't doing it always you know i mean  emergency situations disruptions in the supply chain in the car business that's a really big deal and i mean would you agree first of all set aside whether it's in has to be in person would you agree that that is very important job function for this position absolutely ok so that really the precise dispute is whether that needs to be done in person there yes why i mean they have lots of evidence that it needs to be done in person i think even her testimony implies that it's often done sometimes done in person what would allow a jury to reject the judgment that has to be considered under the statute namely ford said it should be in person during these emergencies and say actually we know better and it doesn't need to be him enter aren't this court said that although an employer's judgment must taking in terms of their telecommuting policy so the seems to me to make sense to recognize that you can't take a position in this case that's inconsistent with what you're actually doing in the field there's no such situation here that least i can find unless you can point to me well yes here again for saying that on any given day and any given day five days a week she might need to do a face to face meeting yet her colleagues were permitted to work from home leagues that were permitted to work from home all had agreed in advance that they would came in on that day if there was an emergency that day that required their physical presence at the office did they not they did however whatever agreed to be on a telecommuting schedule that required her to come in if necessary on a given day it never came up because for cut off the discussion of telemark a reasonable jury could find that if they had offered her precisely the same telemark arrangement that her coworkers had with obviously the ability to take sick leave when she was sick which her coworkers had that ability so your bottom line position on that is that having asked for something that was i would submit is considerably different than her coworkers experience at that point ford had a responsibility to come back and say you can't have that but we will give you the same thing the the other employees said that's that's your damn sponsibility yes as opposed to her responsibility once they gave her to things that you say were unreasonable you you deny that she had at that point any responsibility to say well ok you won't let me do it for days how about let me do it one day if i agree to commit if necessary if ford had suggested in any way that it was open to further discussion on tel and certainly a jury could place that burden on her in fact a jury could still place that burden on her and say she should have pursued that her fault she loses but again where on summary judgment what do we look at to say that it was her burden to propose this alternative accommodation once she rejected ford's proposed become a very is no case that would say that once the employer has shut down the interactive process then she needs to keep saying but wait a minute let's good afternoon your honor is how you walk or for ford motor company the e e o c at the podium just retreated from the doctrinal position that it took below and that is the subject of the panel opinion today which is the notion that the workplace is what the complaining employee or what federal judges define it to be we do believe that doctrinal error needs to be corrected and the rule of smith versus ameritech reinstated under that standard which appears to be what the agency is arguing today the grant of summary judgment for ford with quite properly and heard there was no evidence if you look at the attachments to the government's opposition to our summary judgment motion that could have supported the notion that ms harris was either a qualified employee or what she had asked for was reasonable a couple of specific points she asked for up to four days that obviously would create an entitlement in her to telecommute for four days a week and given her attendance history where there were weeks at a time where she didn't come into the office at all that would have been a reasonable construction but let's assume it was just four days she sent a follow up email tories that we serve on the e e o c that they attach to their summary judgment opposition show that no resell buyer telecommuted for more than one day a week in the terraces coworkers and supervisors uniformly testified incompetent this employee made up the possibility but she said clarifying email judge moore in april to her superior when she launched her first discrimination complaint that reiterated her request and she put it then as i'd like to telecommute is i am not able to leave my home that's either up to four or even more than four so she nowhere refined her request to be one to two days the first time she said that was and medication we offered going to think i'm not sure if he was a truck buyer or resale buyer but he was a buyer yes and didn't he tell the work agreement that said all pass performed at company work so i can be performed at all can work side yes but his agreement was for one day a week judge strand one day a week but then we're back to the question of do you have to engage in an interactive process with a let mr bowles have an agreement that says he can do this all all of his you can be exactly well but again it also says it was one day a week he agreed to come into the office for emergencies he agreed to work during core business hours and he was subject to his boss's supervision did you hear an agreement that would say that she can and that all tests performed  the work site can be performed at an alternate work site for her and that she might have that very form of telework agreement that mr bowles and that she could work at her home one or two or you would discuss with her interactively have many days or refer to judge grants to the notes of the april sixth meeting that the ford human relations people had human resources people had with m harris at page thirteen twenty one of the record for doubt a two hour meeting with ms harris and did exactly what the e e o c regulations say you should do we went through every element of her job and all the tasks and asked her to explain to us how she could do those at home there were at least four things that she said she could not do at home supplier sake visits supplier meetings a certain pricing called tabs pricing and interactions with a particular coworker so even  that he can have one day and my understanding of your mating with is that she backed off of the four days and so one or two would work and there was a refusal at that point from fo internet type of agreement with her can you point me in the record to where i'm at the end of the meeting the second meeting that we had with her karen jerrick said we will continue to advocate for you and are willing to talk with you telecommute on days when she could not leave her house the one to do days came from the declaration that she filed in the district court litigation but we did your honor make an offer and here's what we suggested we offered and this was above and beyond the call of duty under the a da to find her another job at ford she shut down that conversation she were jacked at that very reasonable opportunity there are other jobs at fort where you could telecommute more extensively and on the basis that she wanted to she rejected that eight days later she filed her e o c charge that's not the behavior of a person who's engaged in good faith in the interactive process so i just want to be very sure that we're on the same page here is you've said i think if i heard you very clearly that the one to two days only occurs in a declaration in litigation as opposed to judge grants at least inquired wasn't there a point at which she raised one to two days in the interaction so are you standing by at least eight meant that it's only in litigation a sentence in the notes that says perhaps she wouldn't need to do it as much as four days but she comes back schedule she was unable to commit to working during core business hours she was unable to commit to coming in on emergencies into the office for that nobody nobody at ford is allowed to make their own schedule on their own discretion and it's the own schedule judged ranch and nobody at ford is allowed to do that she wanted to be out of the office eighty percent of the time on a schedule determined only by herself at her sole discretion without working core business hours she had problems with the court business our requirements during the prior to telecommuting trials the ford allowed her to do she wanted walker let me try to clear something up here there are two meetings one is april ninth the other is april fifteenth they're memorialized in notes they're in the record first meeting starts at thirteen nineteen the second meeting starts at thirteen twenty one yes and there seems to be an assumption by saw that at one of the other those meetings she said i would like to to only telecommute one or two days i can't find that in either of those knows the e e o c relies upon these notes not for a different purpose so the e e o c must must have concluded that these notes are an reflection of what happened in the meeting or they would rely upon them in support of their case is there any thing prior to litigation that memorializes what you've been asked that she said well how about one or two days i think what the e e o c may be referring to is a sentence at page thirteen twenty that said she said she's not in visioning that she would need to telecommute four days a week of course that's what she asked and she subsequently said i need to telecommute on the days i can't leave the house and her doctor said she can't come to the office on days that her i b s is bad but to me we don't know when made that argument one would have to equate well i want four days but i might not need it you'd have to quit that with the idea that i'm only asking for something less right she was asking for up to for a maximum of four she might need to be out of the office four days a week and more importantly in the prior email she said she didn't even refer to the five she said i don't want to commend when i can't work exactly when she can't leave her house and we know from experience it wasn't as if we hadn't tried this with her before we tried over the course of four years to help her improve her performance and her attendance she was on to telecommuting alternative work schedules and they failed miserably testified in paid  paragraph three of her declaration that even when she was working at home she was unable to work during core business hours a wreck that the affidavit speaks to a telecommuting accommodation not just simply  flex that that was error in their brief with all respect what the record shows what doc got goes declaration and her deposition show is that was a combined telecommuting ad hoc telecommuting and alternative work schedule which means you can start earlier and earlier but she couldn't even maintain those basic requirements while she was working at home and we did give her a very reasonable offer which is to find her another job at ford she's the one that rejected that out of hand and are she's not entitle to the specific accommodation of her choice that of course is an alternative ground for a firm and here we don't believe she's carried her burden under smith to show that she was qualified or that her request was reasonable but when ford gave her a reasonable offer of another job a board where she could be out of the office a little more often she turned that down you can and in the if an employee has a job  that can be reasonably accommodated in that job the employer has the option of either extending the accommodation or offering a different job no your honor we're saying that we went above and beyond the call cuvier and the gap if our offer was also reasonable than she is not the pain relief under with a b s but you retreated from the position that let me rephrase that it seems to me that by definition if somebody can be accommodated reasonably in their job offering accommodation in a different job isn't reasonable let's go back to her request and whether it's reasonable that's a different question it's a different question the question is not whether this whole thing about this other job that seems to me to be irrelevant except perhaps as relevant to  ford's good faith but the question is whether she could be accommodated in this job and you say she can't because the resale dire job there might have been a reasonable accommodation but what she came forward with was an entirely unpredictable schedule that because a little job requires being that's my other question did she request to telecommute or did she request to telecommute on a flex schedule she requested to telecommute ok and you're throwing in the flex schedule minutes it seems to me that the the case gets complicated because of what led to it she was permitted to telecommute on the flex go to and it didn't work back clarify that she was permitted to telecommute adhoc twice in two thousand and five the panel opinion is a little confusing on this with all schedule just me and started seven thirty and that right thirty started eight thirty and at four thirty telecommuting means working from home she was allowed to do both of those that's what i do so yes it was permitted to telecommute on flex time right and it didn't work and she didn't  couldn't do one she certainly can't do the other was clear across the country gentleman that even when you're working at home lets assume this job is amenable to telecommuting even when you're working at home you have to stick to your core business hours you can't work in a job like this at least at two o'clock in the morning if you feel like it you need to be working from eight thirty three clarity about to my question do i understand that the end i was leading up to this that the facts are which twice she telecommuted on a flex schedule and it didn't work ok the request here was to telecommute not on the flex schedule that's a question i asked you that i thought you answered that no it was not t telecommute on a flight schedule it was simply to telecommute yes ok so that is what we should be looking for but looking at right now it seems to me to be a separate question these are two separate questions in my mind can somebody telecommutes at this job for one or two days are we or up to four days a and could she successfully do it and if the defense is you can do that in this job it is not a reasonable accommodation it seems to me that that's the basis upon which for one it's a different question to say look that's all right somebody maybe could do that but you've shown us that you can't do it and we just don't want to take another chance with you because we've already we already know you can't it may be a reasonable request in the abstract but it's not going to work for you but i understood that this case was about the first option and that you were not you did not win summary judgment on the second upson am i wrong or right we won on the basis that she had to carry her burden to show that she was a qualified individual within the meaning of the eighty eight because being there for this job on a regular basis more than one day a week is an essential function of the retail buyer job because it's so air active and it's so about team and group problem solving but you're right judge white we have to look at whether this job the resale buyer job is the kind of job where you can be out of the office eighty percent of the time of the fact that we know about the flex time really is the kind of thing that you might prevail on a trial because the jury's going to believe that this is just all nonsense anyway but that's not what's in front of us and what it shows legally your honor and why it is relevant now in summary judgment is that her proposed accommodation would have been effective anyway and effectiveness is a part of the inquiry of the question whether it was alternately reasonable and that that is part of the analysis on summary judgment although we stand by our position that she was not qualified individual because she couldn't meet the attendance requirement for this job but the critical thing about her request you might have a job where you can work by yourself at two o'clock in the morning if you feel like it the medical transcriptionist in humphrey for example maybe there was a job at ford like that for her the resale buyer job is about solving s shortages so that car parts will keep going to our plants so that our cars will keep moving down the assembly line this is an emergency nature job this is you need to be their job technology may have changed with their all times that we need to get together to solve problems and that was this job what she wanted and what distinguishes her again is a completely unpredictable schedule that was in her sole discretion to trim and i don't think any of us could do our jobs with a completely unpredictable scale yes she did but it's about what she was the nature of her condition judge white that was the entire series of her request and it was the theory of her doctor's note that because her i b s can come on on a moment's notice she never knows when it might strike there are times when at the last minute she just can't be there it was in the nature of her request that what she was asking for was unpredictable that's why she couldn't be there she was going to  new four days a week he would be there during the quarter business hours at her telecommuting station in her home that's not what she's i thought he was volunteering to be there for business hours and  receive commuted on monday so emergencies could arise in terms of steel sales on monday and the difference that you're arguing is that  resale buyer would come into new york and also because judge moore they had agreed to it here to predictable schedule if i as a supervisor know that somebody is always going to be out on mondays i can work around that schedule or te meetings for wednesdays but the thing about ms harris and her request was that you never knew from day to day whether she was going to be in the office or not and what she formally requested had no weekly schedule component had no regularity no predictability whatsoever and that's different people could be out but when we if we know that when they're going to be in we can work around that but if i don't know on any given day if somebody is going to show up or not what if i hadn't showed up this morning that would not have worked we need to know when folks are going to be here for it is proud of the flexibility that it gives its employees but it also expects everybody to work during core business hours and when you're on deck we need to know that we can count on you to be there the court has no further previously scheduled meetings for example if teleworkers are teleworking on monday therefore for it knows to schedule a meeting on wednesday previously scheduled meetings are the very easiest kind of meeting to attend remotely because there's time to set up the sort of technology that would enable that to occur ford is making a continuing to make a strong argument that ms harris was not qualified for her job nevertheless for six years for every year of her employment up to the time of her accommodation request ford made her exceptional plus it's hard to argue that no fly is not qualified when they rate her exceptional plus over and over and over saying she was not qualified because she could be there because of her perfume they argue that her attendance record makes her i'm qualified they are in large part responsible for her attendance record even when she was working from home producing work that they were then using the were marking her absent they were and they weren't paying her for that work but it's that way of scheduling of marking her absence of telling her that if you're too sick to come to the office you essentially are absent whether you're working or not and you're not allowed to work and therefore you're going to fall behind and then blaming her for the absences and blaming her for falling behind for can't now turn around and say it's because she had tons problems and she was falling behind that she's not qualified they created that situation this goldman when we when we set out to try to figure out whether attendance really was an essential feature of this is it fair for us to look at these the notes of these two meetings that ford had with  certain x yes we have now she says right in these notes that we're going to assume for our discussion here that are accurate that she can't do at least four of these primary responsibilities from home yet these are the same responsibilities that her coworkers is after she said that yes so what we would have to do is then either agree with her or find that there was a genuine issue of fact as to whether those things that she admits she can't do at home were not essential didn't fall within the category of being a central to this particular job absolutely not because even under her proposal of up to four days even interpreting our proposal in its most extreme sense she still would have been in the office at least one day a week and probably more because as she told ford she did not anticipate needing to telework four days a week she said that when she was asking for up to four days she was only stating what the policy allowed that's on page thirteen twenty that there are some things that she has to be in the office to do four out of these eleven as a matter of fact in your construction is that the it's permissible for a jury to the was reasonable a jury could however conclude that it would have been reasonable to give her exactly the same telework arrangement that her coworkers had of one or two days per week it's true as a factual matter of the coworkers who are teleworking in practice for only teleworking one day a week but one of them was authorized to telework two days a week so forth could have given her that and could have permitted sick leave her teleworking coworkers were permitted to take sick leave and there is evidence that ell again if she could have agreed to a predictable schedule which ford never suggested that she try that would have solved the predictability problem there is evidence in the rec at the chance con for up to one year with no i b s symptoms at the time of her deposition she had just gone three or four months with no i d s symptoms so we're not looking at an illness that is going to require her to be out all the time into the indefinite future there are healthy periods and she could have got into these healthy that you're referring to was after she was off work and she was tired well that was the three to four months but no the one year it was before that and i would also for wins if the record shows beyond a doubt that she couldn't agree to exactly the accommodation the other employees had that would seem to me to suggest ford wins in the truest way of thinking about the case because you keep coming back to this there were other stories that got one day a week so we should ask if that's the right way to frame it no your honor of met the conditions under which they were willing to work one day a week out of the out of the office and so far i don't think that she could but well i'm wrong about that or maybe that's tribal issue fact well your honor the thing is that the ag a requires exceptions to general rules so that even if she couldn't do just one predictable but day a week a jury could still find that it would have been a reasonable accommodation to get her to flexible days a week for example that just because four didn't do that for anyone else doesn't mean they didn't have to do that for her the a j the whole point of the razor vote would be the basis of that finding either under the two factors in the statute or the five additional ones that you had in your regulations for a total of seven but none of those seven support that proposition what this court said in ror is that in fact the court should not look with tunnel vision at what is an essential function you need to look at the record evidence as a whole and here we have testimony that she thought lot archer days we could work and she knew her condition better than anyone else so you have any different take on this one did today because that's ping pong back and forth and the way you just said there's evidence in the record but do you agree that that specific set of words is only from her doctor ration yes i do agree with that however she did expressly tell for during these meetings that she wasn't in visioning tell actually needing to telework four days a week that she used that language only because she was stating what ford's written telework policy allowed from that an employer not intent in shutting her down on tell our would have said ok well then let's talk but a jury could find that for just shut down telework by going through step by step what the functions of her job were and asking her could you do this from home when they had done that for her co working her coworkers who were tell our king that could suggest to a jury that they were looking for reasons to say no and i would like to also emphasize that during this entire period when she was having her absences when she was there saying unreliable they were still rating her exceptional plus so a jury could certainly find that with some degree of talent work even if it's not as much as she wanted to she'd be getting work done more than she was getting done without it and use it to work on the life you flex days where you say that her hours those duties would thank you with another question i just want him to have a spot in the record words clear that you would be available core hours i can get that for you