as i understand the record did didn't your client requests the accommodation so that she could start part time in that secretarial position absolutely thank you described it a moment ago as an involuntary demotion how can that be if she asked the employer to place her in that position she originally questioned to come back and a part time temporary capacity and if you and the record reflects that every time she made her request to come back it was as a temporary assignment so she could be trying to fly time that she originally requested to come back before she was finally physically eligible or capable of the flight attendant it was months or she she started back in june of one nine hundred ninety nine and in march of two thousand her doctor cleared her to return to flight in the problem i guess we have here is that the employer apparently had some sort of a sixty day policy that they invoked to say to her you were basically in that temporary job too long in order to unquote into the secretarial position so they also have something called special simon and what's particularly germane is that delta communicated to salisbury supervisor number of options that would have left her in a flight work you can go back to your job as the flight attendant all you need is medical clearance from your doctor and hours of functional capacity examination and requalification training but you do not lose your job and the she was physically qualified to return to the position the flight attendant although as i understand it the record she chose not to voluntarily rebid for the position without assurances that her seniority would be fully restored is that correct now that's a record for major concerns that she lost her job well what she or was she not offered the opportunity to rebid as a flight attendant when she was medically cleared for that position the question is what is two thousand right she was an in the permanent secretarial position at that time she had been placed there by delta ok and at that time when she was working as a permanent secretary she was offered the opportunity to bit direct and opted not to do job or specific project and the fact that was an option be explored and in fact in this just brought once testimony that was explored and there was no special sign of a valuable if i read your record correctly at the time that this the places doctor didn't fax upon that she was permanently disabled delta still put it through a functional capacity examination which determined she could not perform the flight attendant functions delta's doctor who's a contract doctor then reviewed all the medical evidence and came to the conclusion that she was permanently restricted from performing the flight attendant and that was the information that delta half the time and its accommodations that particular period and in status of her physical condition prevailed until after  undergo another functional capacity exam to prove that she was capable and initially she refused which then delayed the process about another three to four months she finally did undergo the functional capacity exam delta's doctor did finally clear her to fly again and that's when she to a flight attendant so we had to put her someplace and we ran out of the sixty days with no comment or another thirty days to see if things would change we didn't have to bring in a doctor's note at the end of that period at the end of ninety days and she still her doctor would not clear her at that if ever and at that point he also has to make a decision and what to do with her because you can't just keep her there indefinitely temporary position and therefore if found a job for her that she could do with reasonable accommodation given her flex time so that she could continue to work that proceed from two fundamental and this conceptions about the last one is that the regional connotation can be viewed in hindsight that the fact that she got better ten months later after coming back to work after her daughter said it was a permanent disability somehow changes what we should have done across the second fallacy in the argument is that under the fair employment housing act an employer has a duty to get the reasonable accommodation not the accommodation that is the one the plaintiff wants matter of law fulfill your active duty so i think that that issue also fall outset of the whole process for this risk ratline and how do we know that we know that because she wrote a letter to her own doctor telling her own doctor back in may two thousand that if she remained in a position for more than sixty days that she would lose he in keeping her in this position as i understand it his position is that it would not be an undue burden to place her in this temporary position indefinitely and that if healthy cannot show that that is not an undue burden she wins but that's putting the cart before the horse of this very core and shark versus eighteen entity had that very proposition made to it that the employer had the burden somehow showing that the employees preferred accommodation would not create an undue hardship and this course of that's wrong alice the proper focus of the test is to look at the employer's offer accommodation and determine whether it is reasonable and if it's reasonable that's those limitations in mind her to sponsor her personal belief was that she could return in sixty eight months is irrelevant and cannot create a material issue of fact in this case for two reasons one she was wrong it was about ten months with the medical opinions that were available at the time in the ninth circuit in the allen case versus i think it's the sort of bell found that when the you know quite a subjective belief as to when they can return to a job conflicts with a medical opinion it's immaterial in this case her personal belief that she could return six to eight months simply conflicts with her own doctor who never ever provide dealt with anything as to a projection as to when he believed she could return if ever and directly conflicted with a functional capacity examination and doctor brisket guards opinion that those limitations or her mind so her opinion well that's not what the lot requires a lot of the requires that they're not the treated differently or worse than able bodied employees and that they not be well for example on the line i mean there's some dispute that you can fly that's correct an opportunity for the employer to say no we don't want you anymore in your professional job we're going to permanently sentence you regardless of your physical capabilities later on to a secretarial job th sanction unlawful demotion under the anti discrimination statutes constantly i just don't understand how can it be unlawful demotion when the when you acknowledge that at the time she was disabled she was not physically physically able to return to the job a flight attendant was it took five years would you put up with your arguments still be the same delta would still have an obligation under the law it don't restore her with full seniority rights for that five year period that she was unable to perform the duties o f flight attendant if delta is set up to accommodate flight attendants generally by allowing leaves of absence for prolonged periods yes i would say that they have an operating off four thousand one hundred sixty two flight attendants after september hundred nineteen thousand problem with your facts is that she had two opportunities to rebid for the position prior to nine eleven and she didn't do it and now she says i can't get my job back and delta is responsible you know we've had to layoff four thousand flight attendants because of the  terrible conditions in the air but she should not have lost your job in the first instance or her she should never have been placed in a position where she had to apply to a person off the street for the very job that she held that's the protection that the lawlessness of delta and terminating her job as a flight attendant the accommodation out of that conclusion i guess have to have to be driven by our looking at the fact and saying it was not reasonable for them to put a sixty day in this case i know i'm not asking for an indefinite time she didn't ask for an indefinite period of time but the employer is obligated to give someone a reasonable amount of time to come back in this case from cancer to return to their original job and the cases say it is not required to zero three five zero three four four united states versus vargas each side will have