morning your honour's adam hands on behalf of the public kelly dancy and may please the court this case concerns union pacifics refusal to provide any reasonable accommodation to its longstanding employee mr dancy who suffers from aids an aids related cancer at the outset i think it's important to clarify what mr dance was asking for whenever we hear about an employee who wants to take some time off of work i think we naturally think of someone who works at forty  regularly scheduled shift such an employee of course is only on duty forty hours he or she still has one hundred and twenty eight non working hours to do everything else in their life quitting visit the doctor this case could not be further from that prototypical scenario union pacific is laying claim to mr dancy's time twenty four hours a day seven days a week three hundred and sixty five dollars days a year so in a case like this for mr dan's he is asking for a limited amount of time to see the doctor  talking about just finding some time any time in his life in order for him to attend these important medical appointments the district court committed a couple of overlapping errors it's reasonable accommodations dallas a aware there are really two sides of the reasonable accommodations coin the st is what we might think of as more substantive elements what was the request was it reasonable was the denial of the request reasonable whether it was a ramp or modified desk or something like that but there's also a procedural component which asks whether the employer in unreasonably inhibited the search for reasonable accommodation by failing to do time i'm getting static and i think it's perhaps  that better that is better ok judge if you hear it again let me know and i can switch to my computer audio so picking up where i left off with the district court held the reasonable accommodation claim is that mr dancy had in permissibly requested an unlimited amount of time off that conclusion was full of factually and legally flawed factually the district court unreasonably constrained it analysis to a single document essentially analyse and al jazeera this case to a breach of contract case where the parole evidence role might come into play that's not how it works under the a t f you look at all relevant evidence of the request and when you look at the other evidence in the record here including e mails and voice mails a two things are very clear st of all mr gans he was only asking for up to five days off a month again in this total of the nominator of i mean reasonably construed as being more than five days so where where did he limit this and say i'll give it up for five days all sure well it was limited  what happened next is really important because mr dancy got a call from union pacific disability management group and said congratulations your request is granted so mr vance you you know it was never put in a position to answer the question that you just post judge carson i mean he was completely head fakes here because had somebody said this is problematic there is this appears to be this fine print in this one form that suggests that it could be five days but it could be longer you know that's problematic we don't know what the union pacific said in response to what he asked for and maybe my curiosity is exactly what is the lead time policy of union pacific how much time  person get off in his position yes so it is it's a cross motion for summary judgment case and that that's really the last part of your question is is really a crucial part of the analysis because no one is claiming called laying off right this is essentially indicating an availability for duty but the policy the policy says three things that all cut in mr ganns favor number one it says that reasonable layoffs are permitted number two it says that layoffs are permitted for bona fide illnesses as long as they're documented and number three the policy says crystal clear that employees can use their paid time off mr danza had been working there for ten years so he had accrued anough paid time off almost a month's worth to cover all of these appointments and so you know this isn't a breach of contract case this is an eighty eight case but the two are very related when an employer is refusing to follow even its own policies with respect to leave it's pretty difficult for the employer to turn around and say that the request isn't reasonable so at bottom do we know exactly what accommodation he wanted i mean it's back to judge carson's question was he asking for five days was he asking for an unlimited amount of time or he was asking for five days and i could point the penalty at one other thing in the record i mean mr dancy was terminated and ultimately reinstated under his c and under that proceeding they reach an accommodation of three days per month and mr gans is working there today at three days per month so this idea that no accommodation was possible is just totally not supported by the record and this really d he does that she says well there's an issue with with this one piece it's not super relevant have your doctor fill out a nd time he does that and then two weeks later mr dancy receives a call and says congratulations your request for combination has been granted and that's from kim floyd a telephone call so it's not recorded but the dates the time the person are all identified in the record and then essentially what happens after that is this bizarro scenario where the company headquarters in omaha is doing one thing and the local supervisors on the ground are doing something completely different there they are doing this this progression of this of progressive discipline and it becomes clear to mr tanzi that they're trying to terminate him  he eventually calls back you know the miss ms owens the person in charge in omaha and says what is going on here and she just goes limp at that point and says i'm not going to get involved so that's that huge actory and the ultimate point i want to make is this is i think an even stronger failure to participate in the in the reasonable income in the interactive process case than it is on the substance because it's one thing if an employee says and this goes directly to judge parsons question no this is it i'm standing on this request it's this way or the highway at that point the only thing for the court to determine of the jury to determine is whether the request is substantively reasonable but for an employer to say yes your request is granted as  written and then turn around and fire the employee and say well we've identified a you know a technical violation with your request and use that as a shield and with the nation it really completely undermines both the text and the purpose of the americans just with disabilities it gives union pacific an advantage that an employer who participates in good faith would have would never have received and of course this isn't a mere process violation it's just a way in which the process breaks down inhibits the identification of what basically everyone agrees were a number of accommodations were available on what basis did the district court reject the argument you just made saying that he was granted the request and then fired for having in your precise requests right so the district court's order was read into the record the discussion on this part was extremely truncated so to my memory and i have to go back and look at the record that's my memory the district court just said no reasonable accommodations possible of course this is a nd prong judge hearts there is sort of a no harm no foul rule if the company fails in its duties under the interactive process but ultimately can show in litigation not only was whatever request was made not reasonable but no reasonable accommodation was even possible in the total universe then the employer wins so that seems like that's what the district court said and other than one sentence  fill i think he i don't have the text in front of me and so i'm going to have to paraphrase and just stand on the record that of course that speaks for itself but i think he understood that there were no other positions maybe at his precise location  well it's partly the plaintiffs is it it's partly the plaintiff shop it's partly the employer's job i mean it's this there's no real technical way to reduce down this interact process what it boils down to is look there is information that is uniquely in the purview of the plaintiffs there's information that's uniquely in the purview of the employer and they need to sit down at the table and we've all seen lots of cases where you know maybe there's a good faith the bait about the ultimate result but you look at it you say both sides did their job you know they negotiated  good faith they explain themselves if the for request was rejected it was explained it was put in writing you know frankly this is the st case i've ever seen where there are a request was granted and then you know i guess secretly denied and then the employer turned  around to terminate the employee and that's just simply not not permitted under the americans with disabilities act briefly with respect to the relief or seeking that i do want to touch on this jury question issue you know we do believe we are entitled to judgment as a matter of may this case was tried on the theory that the company terminated mr danzy essentially to avoid him requalifying for a family leave and the jury asked a question which was a very intelligent question essentially whether mr gans even had rights to exercise under the them away and i had to research this i had it look it up myself it turns out turns out the answer is yes the problem was that this was a predicate legal question that had already been resolved by the courts and it was not the specific factual question that the jury was asked to decide so in other words the jury was asked to decide whether the determination of mr ganns he was motivated in any way by the exercise of his f mily rights what the jury needed to know and what the original jury instructions didn't say what the jury wanted to know was does the f mily just protect people who have it who want to use it or does the way also protect people who are trying to gain f mily rights and the law is clear that it covers the latter just as much as the former and so the analogy we make in our reply brief is it would be just like a breach of contract case where the jury is just supposed to decide consideration but asked a question about offer acceptance it's very normal the jury jury instructions don't necessarily have to negate or explain away everything the jury's not required to decide but once the jury puts that is permissible under the statute but it wasn't it wasn't presented it wasn't argued by the plaintiffs it's hardly fair to a defended to allow a new theory to be the basis of a verdi when that happens the jury may be interested but that can't be a basis of a verdict can it i agree wholeheartedly but that's a that's different from what we have here this wasn't about a unique theory of liability this was the theory of liability the jury was only asking about a predicate legal question about what does it mean to have the protections of the f m l a and so this was the heartland of the theory it was just something that that wasn't in the jury's purview i see that judgment on the accommodation failure to conduct claim given the request for an unlimited amount of time off for a job that the plaintiff minute required physical attendance or sue jobs that are  more clearly require a conductor because both a legal and a solvent the requirements as i understand it as far as attendance allowed for frequent layoffs and we don't have a definition of what frequent re judge there there's not a specific definition of frequent layoff the policy that exists outlines for these individuals and it's consistent with what's agreed with the union is applied to mr dancy the same way it was applied to everyone else he does have the opportunity to have a layoff there are certain amount of layoffs that are allowed there's also the opportunity even if you don't have those available to ask for it and if the needs of the railroad are met that will allow you to take that time off the problem is that if they d don't have a sufficient number of conductors to be able to cover after to kill or locomotive they will need to deny you that obligation or that request we didn't put evidence within the record for judge shelby of others who are healthy the same standard given absences for the same number of absences in some cases for even fewer absences then  a which did provide intermittent obligation or intermittent right to leave and he had used that for a number of years once he lost his position due to the safety violations so and so the trains ran in spite of that right when he had that opportunity under the ethanol it's true judge we we we ran our trains as best we could it doesn't change both what he testified to what others testified to which is that there are many circumstances in which those trains are delayed because you have no conductors and no locomotive engineers available to be able to run those trends washy asking in your view for an indefinite amount of time no question about it your honor because there is no specific limitation placed upon the term of this limitation it wasn't just that he failed it's also how long you need it he never indicated how long within a position that was specifically for the purpose of trying to navigate the a t f as well as other medical d employment issues work with them and spoke with them on that particular document expenses that terri actually approved his request to somebody in the local office and if that was the case it would be a little disconcerting to then be filed two days before ours he never said in his undisputed facts that an accommodation had been granted to him and that he would have looked for other positions he never made that argument at all he only embrace this argument in an affidavi which contradicted his deposition testimony in opposition to our motion for summary judgment which the court had no obligation on summary judgment to credit particularly given the judicial admission within the complaint that his his  forgot about this source or my anything like that that none whatsoever your honor there was no such explanation and nor could there be because this was not the theory on which this face was advanced and this is why judge shelby granted a summary judgment he specifically and i was on the call with them when he announced and read his opinion that was transcribed into the record he said specifically look you testified that you knew about all the positions and that no other position was available for you that would have been suitable to accommodate your position in addition he said you've had substantial time during discovery to present evidence of what positions would have been a failed goal if you couldn't  give it this accommodation could not be granted and you did not put any such evidence into the record there is no such evidence in the record so that a fact that there were any other jobs back at the time the summary judgment was ruled upon  required by this court's on banks that are responsible plaintiffs to come up with the positions and tell the employer hey i have researched your books to find out how many positions you have on what i'm qualified to do is that the plaintiff's responsibility in the context of the interactive process they have a shared responsibility to identify effective accommodations judge that's different than the summary judgment posture what i'm pointing out is that once if there were theory was hey i was told i had an accommodation so i didn't look for anything else if that was in fact the real theory information they never sought it the council never did because that was not their theory and that evidence was not in the record in judge shelby then can't tell me what you think their theory was their theory was that they felt that we were just simply on the accommodation that the combination was not unreasonable and that we could not substantiate it under hardship most of their summary judgment briefing is devoted to this is an undue hardship or we can't meet that burden of proof know that it's where we're at in this case as judge shelby said hey you you have not shown any evidence year of where this competition was possible with positions the assertion that few years after the fact when he was reinstated yet again by the p l p that he was then a comet it is also not relevant record evidence because it only comes to light in the context of a request for reconsideration which the court did not modernization that he's now occupying was not in existence before there was no evidence that that position existed or that such position was available plus the accommodation request two years later is different it's not the same request that was made it twice keep in mind that in this case this original request mr dancy's testimony was if he drafted the commendation request both times he gave it to his doctor his doctor signed it without change so this was exactly what he knew he needed and when he said hey i might need additional time off without notice those are kelly dances words and then his f and the i request which he subsequently submit this is also prepared by him it says  same thing but has a little more information on so the bottom line is judge chill being made the correct terminations here this was not a plausible claim for relief that has not been changed stared not been changed  there's no failure of the interactive process because there is no record evidence of the risen other jobs that that would have been able to accommodate you had the most is that something that the employer presented to the p it and there was not a subsequent follow up put him there was testimony from terry o'neill and that she did have an inquiry of him about whether he would be interested in other positions but he did not pursue that now that there's a there's a conflict in in what's been present enough given that affidavit but again on this record well did she express to him what other positions she discuss talking with him about pursuing other positions but he said he was not interested in the same way he testified to me when i took his deposition and he said there were none i asked him why didn't you pursue any other positions because as you know members independent of the a t f and i'm not suggesting to judge that that that shifts the burden on him to take care of but it is a relevant fact in union you can just look and see what jobs are available and if you think they're going to work for you you go ahead and bid for him but he told me if nothing else would work for me i didn't want anything else and i should get this and so when we look at the record that judge shelby had the opportunity of mr dancy's counsel to prepare and ask for and submit evidence of these other day then you can take a day off and he indicated that he did take some of those and he also indicated that i would be denied if the needs of the railroad did not allow me to to again he specifically in any instance ask for pay two to attend medical appointments and were and was refused he he would ask for time off dots but you don't other words we the way it works it's not a specific the specific request for time off to take a pay day off we brand it if we could but if we couldn't we did not have and he would lay off and say i'm not i'm not able to come to that i'd like to spend just a little time on the alpha male way issue the in that particular issue the judge correctly responded to the jury's question as if there was one issue in this case and that was simply the jury was asked to that's the sole issue and the jury was also told that it is unlawful for any employer to interfere with restrain or night to exercise for the attempt to exercise any right right by the f m l a in this particular circumstance there is no objection to those instructions the judge responded and said you have the information in your instructions to just look at them as a whole and that's what the jury did and came up with or their determination that we had met  and so by very definition the attempt to use of i'm away it means that if you're trying to use it whether you have it or not that you have the right to use should be free from terminations in the circumstances and so once they were asked the question you conclude that because you asked for f m l a either to attempt to use it or to actually use it f m l a right you think you would have been fired regardless and the answer that question was yes we think regardless of his attempt to