apple e mr kaufman once you get settled you can proceed at your facts demonstrate that carol saw always request that accommodation constituted an undue hardship on the f c c the answer that question with use by the district court to resolve two elements or two aspects of the discrimination claimed below first was to determine whether or not miss ali was a qualified person under the rehabilitation act and in order to be a qualified person she has to demonstrate the requisite skill experience and education which is not in dispute in this case she's booked for the s e c for many years and has consistently achieved successful ratings on all of her evaluations the second question is whether or not she's able to perform the essential functions of her position with or without a reasonable accommodation and this is where the district court found that because of the nature of the accommodation she requested that she was not a qualified person under the rehabilitation act and in order to reach that decision the district court had to resolve several factions fact issues that apply to both of these issues the first one is that the court ignored evidence that at the same time the f c c was making these determinations it was operating a pilot program that allowed employees to work five days a week tele work from home isn't it isn't it though a little bit different to operate a pilot program which is like let's try this on for size and see if it works in essence to see if this is an essential function of the job or not and a determination that in fact this is an essential function of the job i mean a part the pilot program i get it and in fact as i was working my way through the case i sort of thought isn't there some inconsistency between a determination that some physical presence is an essential function while you're running this pilot program but if the pilot program is really debate to see if this might work is the really any true inconsistency between those two things i think there is in this case because when the pilot program was in operation there was no there were no critical issues raised the union didn't raise objections to the pilot program and so program to include five days a week but it's more than just that you're out of there is at the same time this was going on we knew there were other employees who work five days a week teleworking one employee named get into the same in the record is someone who has had a back injury and for at least twelve weeks he works five days a week teleworking without coming into the office it's also i think a fact question to whether or not massai was meeting those obligations there is no evidence in the record that she failed to come into the office to the extent that it affected her ability to do her job as it now there were missed meetings i think there were highlighted for her but at the end of the day she received an acceptable rating on all of her evaluations so there was no evidence that it impacted her ability to perform her job also i would point to the time period during which there was a temporary accommodation in place for her back in two thousand and eleven or two thousand and twelve and it's not because once a temporary accommodation is made that the government is stuck with the employer is not stuck with that but what it shows is that during that time period when the temporary accommodation was in place and that was only five days of telework every six weeks  it worked all the ends in the record shows that she performed her job that from her therapist and from her own testimony that that was successful she was able to function the workplace do her job and not be impacted by her p t s d so again that just goes to the fact question of policy on a going forward basis you can tell a work five days right is that was there i guess a was there a connection between the findings of the pilot program and that determination that we can live with five day teleworkers just explain why the total program is going to be brought to the agency as a whole and the second question i have is this there was reference but vague reference so far as i can tell and both of the briefs that to technology had advanced in such a way that would allow five day teleworkers what precisely are we talking about what sorts of technological advancements what changed well let's say that teleconferencing or something i think the argument by the f c c was that  guess improved band with the wife by or you know that the speed of the internet the improvement in equipment that would allow the transmission of information more easily from her home to the office but i think it's important to know the district court  didn't really rely on those items because there wasn't sufficient evidence in the record to show that there were those were in fact preventing her from doing her job they were mentioned but they were never really fleshed out as would be required under the  hardship sort of analysis and also want to at this point you know this is also important as it relates to what she actually requested as the accommodation in this case you know her burden is to come forward a request for an accommodation at that point there's an interactive process begins between the employer and the employee and here you know she asked for the kitchen sink as an undisputed but she was encouraged to be creative and to come up with everything she could and she did that but the moment she made that that request she was locked into it and the f c c never looked at any lesser options for her they held her to that standard and ultimately determined that it would be a hardship because she was asking for so much including you know never interacting with the employee who triggered her p t s d in the workplace and so it was also true for the district court which ultimately found she was unqualified and that it was a hardship because she demanded to be one hundred percent free from any of  actions from this particular employee is not only that she demanded to be free of that and unfair it's it was also that she demanded to be free of the fear of any of that exhibit nine from her deposition i'm open to other suggestions as long as it allows me the ability to totally avoid whoever this person is and my fears and then there's something comparable to that and that in and until my psychological condition improves i don't think i can work in the same building with mr so and so i have to know when believe that there is no chance our past can cross he would have to be forbidden to come to my office and i would never have to go on the floor where he worked nonetheless i can still work remotely or virtually as i do with remote all it's in attend meetings but the point is it's almost to me it sounds like she is requiring her employer to be that guarantor not only of her physical state but also of her mental state in terms of what her fears are and how can they have that kind of control over another boy and he isn't that what she really is asking here i mean talk about how flexible she is but she's not flexible on that point at all well you see the evidence is in conflict on this in your deposition she testified that she would have considered other or other measures that could have accomplished her goals and we'll never know but i think just briefly to judge their wills point her goal the fixed point here is totally avoiding contact with this individual such that she would never have to face these fears right so she's flexible a structural says to that point but inflexible with respect to that i think that's true i mean i think that there's no dispute that's what she said in her request for accommodations but look at the look at what happened she avoided him for two full years during a period of time which there were no accommodations in place other than her ability to take an ad hoc tele work day from time to time and her use of her personal leave time so she had two days she got telemark social i had a couple wednesday they let her tell her work monday tuesday he telework thursday friday so she i had to deal with wednesday right that is correct during that two year period of time it was only the wednesdays and really months they moved into another floor and everything her fear was about me seeing in the parking you know what we can't give you what you want but we can give you something less we can give you four days every two weeks instead of five days every two weeks we can give we can allow you to use your p t o time you know intermittently or we can give you an ad ho every every couple weeks they never came up with something that was smaller than what she'd initially asked for because of that they were locked into a position where it was a hardship hour make sure i understand the fear here she had the bad experience with the right twenty years before and then she learned through office conversations this gentleman had been convicted on related totally tell that recently of looking at child porn on my office computer i think  as far as the weather mist selway was qualified of course she has the burden of stablish ing that every required element of her position that she could perform under request for five they would tell where it was and i'd never came back and said but what i've been doing is i had to quit and the s e c going forward essentially allowed her to continue under almost the same program it continued to have the a r o employee on monday tuesday telework miss solidly on thursday friday telework and miss always still had the availability of using temporarily for specific projects so what's your response to the question i asked her adversary sort of how do you square i guess at least the implicit determination of the f c c here that some physical presence is an essential attribute of the job with the pilot couldn't would be expected to report to the office that when necessary when called in for specific purposes or for all hands meetings training and such and it's undisputed that the use of the bloomberg terminal which is the f c c has limited licenses licensed terminals dedicated to that service throughout the course of the relevant time in this case that service was not available except in the office so there was always some need for an employee to report to the office even regardless of how many days away the teleporter to and whether they were under the pilot program or not under the pilot program as needed into the office notwithstanding the they were on full time and further the misawa ways job description required certain activities conferences and coordination with other team members that are critical points throughout investigations as they were planning the investigation as it when they were reviewing results when they were making presentations to superiors of their findings those items  occurred in group meetings on the premises so you're saying that even if you qualified procedurally if the pilot program that would have been enough under what she'd done it wonder what misawa way demanded it would not have been enough  the document the judge royal read earlier where you know she says i'm flexible but i have to have confidence that i won't be that i want to counter this individual again and your adversary's suggestion that this was just sort of the kitchen sink request and that she did it was just sort of a bargaining position and she would be willing to back off if it were your honor first i believe her attorneys position a few months later makes clear that her intent was to get for from october to december twelfth or as she later admitted and confided earlier to her psychiatrist and therapist that it worked and as far as from that time forward although there was no formal telework agreement she conceded in her response to the notice of proposed route removal that she still that even that worked yet even though that was a working proposition  she didn't require an additional accommodation in other words she came forward and i for all of twenty thirteen and said i want more and she came forward with the demand that well it could be either alternating schedules or telework five days away from a it it s as though her other demands in that particular document show that she had to be guaranteed she would never be exposed to a auro employee which is what we've referred to her former supervisor in the brief or in all of the proceedings in this case and the the way that she worded her demands for protection from him did encompass more than the workplace and even that back in two thousand and eleven she was saying that she wanted to know the s n c to advise her at all times of his whereabouts well the f c c cannot control what any of their employees do outside of the place they made play to discipline them if they violate some law but they can't control and especially advise someone else of what the person doing for one thing would have privacy act concerns and what she was wanting was a defacto restraining order but instead of going to the state courts to save a restraining order which under these facts it's doubtful would go anywhere she has the s e c to impose one administrative leave it was not willing and felt it could not do that that was an undue hardship to them and it is these issues sort of bleed over on the failure to accommodate claim as far as she was not qualified employee for purposes of her demand because she demanded things that would not allow her to essential functions of her job and the s e c in fact accommodated her as the magistrate judge found in the district judge adopted by the temporary accommodation and by the events going is the continued scheduling that allowed her to avoid seeing a our employee in any way shape or fashion and according to the union response to the notice of proposed remov through that date in october of two thousand and thirteen she had thought it had been working so even after she made this new demand she was admitting that what i out it was already doing was sufficient but i want more and the truly some of the things she was demanding the f c c had shown below that it posed an hardship to them to fully accommodate her with what she was requiring now turning to the retaliation case the reporting recommendation found three grounds that each independently would allow summary judgment on behalf of the defendant on behalf of the s c so the first was that missile away did not show an adverse employment action for purposes of retaliation that the decision maker not to implement the notice on the retaliation claimed are you making the argument that it should been waived by the way it was handled and the court yes  boy i was next moving to your honor that two of the issues that are independent grounds for summary judgment for the agency are that she failed to show a causal connection because there was no close temporal proximity and the their stage by failing to object below and by failing to brief it at the opening brief before this court that those issues of weight and if those issues of weight then the issue of whether she they propose removal was a and adverse materially adverse action does not have to be reached in the that portion summary judgment motion would should be adopted and say believes strongly that the boy for should apply here now was standing plainest attempt to address those issues in the out of time or reply brief that was filed and even it as far as the if that issue about materiality or that she's shown a material adverse action is reached this court has never decided that issue it noted the issue in one case in the past in the and i first amendment retaliation case involving a law enforcement officer who was placed on leave similar to the case cited in the report recommendation below for that prospect that it does not but the court in that case decided that they would assume for the purposes of its the decision only that it would state an adverse employment action and that was in because for that proposition we cited the career zero case that the magistrate judge relied on which it was collecting additional cases from other circuits and if the pay benefits or any other aspects of the employment where the employees later read stated does not show a material way of adverse action for purposes of retaliation five minutes ok the person i want to mention is something that mr pollack just told us which was the f c c agreed that the temporary accommodation was reasonable he said they thought that was reasonable and that's why they put it in place what's time that worked ok that the record is unanimous in the fact that that was a successful accommodation not only through miss and miss solow is testimony but also through the testimony of her psychiatrist and her psychologist also we have her supervisor mr ford testified that during that period of temporary accommodation there was no violation of the c p a it was not an undue hardship he thought that it was perfectly legitimate for someone to tell work and then come into the office occasionally to do the stuff that has to be done in the office what's important about that is when you're only working telework five days a week for a two week period that means you're in the office for five days a week i mean four or five days every two week period more than enough time for her to attend her meetings or trainings or the other things that they three year period she says she won adequately come accommodating that's what she wants damages for that that's correct and i want to turn to the retaliation case because this is really important because putting aside all the disputes surrounding the discrimination that fail to accommodate issue there is no question in this case that the terminations the notice of germination was causally connected to the request for an accommodation it says that in the letter she was found to be medically unable to perform her job because of her p t s d before you get to the merits of her causation argument you should probably answer judge rules question about waiver well what the f c c is saying is that we waived an argument about the cause of the temporal connection between her i guess request for an accommodation and that her terminations that's not the argument we're making here i've never relied on a temporal connection between these events because the letter notifying her terminations was explicit that the reason for terminations was the fact that they could not accommodate her p t s d so there's no there's really no dispute that that was the reason why she was being put on a terminations notice it wasn't that we had to rely on some kind of circumstantial evidence because the temporal relationship between the two  s and that's what we are going consistently in this case both in our brief and below what she had burst employment action here in terms of the fact that you said she was oh she was going to be terminated but she actually wasn't terminated and usually turned to a job she basically got what you wanted no return to the job and so she had paid leave basically for what was it four months what is what is the adverse consequence here of that employment action well we're operating under the under the supreme court's decision in burlington northern santa fe which is a political standard for retaliation cases we don't have to show an adverse action in terms of her pay or her position or her job  duties what that decision says is that it's a materially adverse decision if it's something that would chill and employees you know desire to complain about discrimination it would dissuade them from coming forward in other words and the courts reliance on that cardio case is wrong and that's a case where the employee was placed on administrative leave pending an investigation a neutral decision there's nothing you know negative about that this case is very different this is a case where she was placed not  suspension because of an investigation but because her notify you that you're going to be fired and as you may be familiar in the federal system there is this long process of of how want to terminated but it was not we're just going to investigate the situation it's at the end of the day you'll be all right the third and final case for the day