return on that date these facts demonstrate his failure to engage in the interactive process with miss whittaker in response these communications was additional communications in november that v h s admittedly considered to be request for accommodation s not engagements would appear in the interactive process determine what accommodations were available that would allow her to return to work instead it ceased all accommodation communications and simply kept moving forward with he is an employer required to keep hold a job for somebody who's away well there's no per se rule on the amount of leave that employer is required to provide it's going to be a case by case analysis so as long as a jury might later determine would have been reasonable yes it's a question on your part it's going to be different depending on circumstances of each case so what's going to be reasonable for when there is no safe harbor for an employer who's in they may are also facts and evidence in the record that demonstrate that you just cannot prove one who forged in this case for example the record shows it just would not be disadvantaged it wouldn't have to hold a position open for her during her period of leave because he was constantly hiring for economics yes i believe so it's under the agreement with the county i'm right and it may not exceed thirty calendar days contractually correct right permissibly has different permissibly right permi  finally the regulators but if i understand your argument correctly the contractual leave and permissive leave are irrelevant because you're saying the a da gave her a right to demand that as a form of accommodation right and essentially yes i mean whatever you want to call it whatever you want to call it it's leave at the end of the day and that's what she requested that she did and i guess i'm i'm struggling in this case with how the f m l a interacts with the americans with disabilities act because i mean being extended whether you want to call it finite or and probably looked infinite to the employer at the time unpaid leave looks an awful lot like f m l a aleve and we have a statute that limits that to there you've got to be with the employer a certain amount of time there's  the twelve week limit in and you want to be arguing here for something much more indefinite open ended and uncertain from an employer's standpoint no you are not i'm not advocating you know and definitely by any stretch of the imagination well you know i thought you knew you just told me you couldn't impose any limits so i'm still interested in generally them just saying there's no there's no personal limit on the amount of leap that an employer you know should or could be allowed to provide so my viewers could be reasonable i pathetically i mean i could get some point i'm guessing i knew hardship would certainly kick in five years is a really long time but you know what i'm saying is that you know particularly pursuant to the supreme court's holding in barnett versus united airways certainly a cigar a specific amount of leave can't be ruled out from the get go it depends on the particular circumstance of the case the particular circumstance of the employer and all that comes back to under hardship so certainly it's at whatever point you know an employer can prove under par ship that that's the end of it but from outside point of view and there's no per se limit on what could or should be provided on the lot here i'm not advocating for indefinite leave because we have to return to work date of december twentieth this undisputed so it's the run and one was dated one was in august that will stated what her what she was suffering from and also she was receiving treatment i don't believe it specify the type of treatment that she was receiving and then there was a second  communication of that day and september twenty fourth and then again she divided that in writing on october eighteenth granted that was her writing it that was not from her doctor but it was a form from d h s s leave it up a request authorization form or something like that  she filled out again stating that that specific date was the date that she needed to get its undisputed at that dia just understood and knew that that was a lead that she was requesting and that was what it knew at the time that it made the decision to terminate her when and again it's good morning i'm assistant attorney general jennifer vander musa i represent the wisconsin department of health services this court should have from the district court because miss whittaker failed to establish that she is an otherwise qualified individual  the evidence which she submitted at summary judgment no jury could conclude that the additional nine weeks of leave she was requesting would enable her to return to work but even if she had shown that she was an otherwise qualified individual her failure to accommodate claim still fails as a matter of law now i'd like to focus on the dispositive issue in this case which is whether ms whitaker established the thresholds showing that she was an otherwise qualified individual under the rehabilitation act and otherwise qualified individual is someone who can perform the essential functions of the job with a reasonable accommodation the burden is on the plaintiff to put forth evidence sufficient to reach a jury on this issue now it's undisputed that  would occur at the time it just a client grantor additionally could not perform an essential function of the job namely regular attendance at work so to survive summary judgment ms whittaker had to submit enough evidence to show that the additional leave she was requesting would enable her to return to work on a regular basis and she failed to make that showing in the record we have a number of conclusory doctor's notes that state medical leave of absence until november seventeenth two thousand and ten medical leave of absence until december tenth seventeenth two thousand and ten these notes provide absolutely no information about what ms would have her medical condition was whether she was receiving treatment or whether treatment if any would enable her to return to work we also have several naked assertions in her own declaration stay eating that she would have been able to return to work on december twenty eighth two thousand and ten now this declaration is simply insufficient in terms of weight to be put in front of a jury and we know that because this court said and we will be target stores that an  submitted by a medical expert with a similar assertion that there was a good chance the employee would be able to return to work with two conclusory and an informative to reach the jury on the question of whether she would have indeed been able to return here we essential functions of her job and therefore she cannot be an otherwise qualified individual for rehabilitation at purposes for this reason alone does da just as entitled to summary judgment now turning to my second point even if for the moment we were to assume that she established that she was an otherwise qualified individual under the act no jury could conclude that da just failed to reasonably accommodate ms would occur when it declined to grant her an additional leave of absence there are three elements to a failure to accommodate claim that one person has to be a qualified individual with a disability which i've already discussed she's not but setting that aside for the moment the second is that the employer was aware that the employee had a disability and was requesting an accommodation for that disability d h s s just not it's conceded that it was aware at the time requested an accommodation for her back in addition she filled out the disability accommodation request form noted back pain and engaged in an interactive process with affirmative action director david lopez her eighteenth two thousand and ten leave out pay request specifies the reason she's asking for leave is to care for her father and to attend to her own medical condition which is undescribed in the request it was reasonable for d h us to infer that she was asking for something different here she said she was not asking for an accommodation so therefore the interactive process was not even triggered in this case as stated in the sears and roebuck we didn't even get to that step but i will also note that in a letter dated october fifteenth two thousand and ten vanessa robertson invited this would occur to a meeting and i told her for november eighteenth and asked her to provide additional documentation or explanation that would assist them in their decision and whether they were going to move forward with medical separation so to the extent there was additional interaction i so we didn't even meet the second element in the failure to accommodate claim but even setting that aside third element is that the employer failed to reasonably accommodate the employee a plaintiff needs to make a prime official showing that an accommodation is that the combination she requested was and was reasonable and weak and this is because she had asked for continuous leave under the f m l a day from august twenty eighth thousand and ten all the way through when she exhausted it which was told our eight hundred two thousand and ten d h s granted all that leave to her had notified her that her leave would then be exhausted but invited her if she wanted to to ask for a contractual leave of absence of up to thirty days she asked for one  surprised if that was a possibility but the the real point is that it's discretionary that the employer doesn't have to correct it and basically what it is whittaker was asking was for d h s to hold open her position for based on their experience with her unforseen out of time to care for a father and for other reasons and that the employer's just not required to do that under the rehabilitation act so that the record evidence shows that the only accommodation she was asking for which was additional nine weeks of absence of of absence from work was not a reasonable accommodation but d h us also submitted evidence to show that this type of accommodation would impose an undue hardship it's not disputed that every person who was in the economic support specialist position had to see six to ten people in person in order to meet the heavy workload that the organization was experiencing at the time and it's also not disputed that had missed w occurred not been at work that workload would have had to be distributed to other employees so this is concrete evidence of undue hardship we really believe that the dispositive issue in this case is that miss whittaker failed to establish she's an otherwise qualified individual under the haste and that we call the target stores case establish the standards for looking at the evidence the evidence in this record is even thinner than the evidence in those two cases and for these reasons we believe that summary judgment is proper for g h us and if there are no other questions i can conclude swill some news would occur covered by short term disability i don't know if the record speaks to that so i don't know the answer to that jan do you agree she was feeling some benefits on e provides employees of the ability to take leave and they're entitled to that right and so then the question is whether lean on top of that would ever be a reasonable accommodation i think there are potentially cases out there where additional leave could be reasonable accommodation but we have to meet this threshold requirement under the rehabilitation act and the eighty eight of whether that person is a  individual that is should be able to perform the essential function of regular attendance with more leave so we need it some evidence in the record that would at least suggest that the additional leave as an accommodation would get that employee back to work and we simply don't have that here so what would it take i mean more specific letter from a doctor saying you know whatever the condition of the treatment is proceeding it's taking a little longer than we thought it would but she's still making good progress so i'm confident that by the beginning of january should be able to return with that would that be enough something something like that would be much closer to the market if we had a doctor saying in his whittaker is getting physical therapy and cortisone injections and that's going to take three weeks and then i believe to a degree a medical certainty that she would be able to stand up and walk around after that three weeks period has expired and she'd be able to go back to work that would be evidence that would at least be able to be put in front of a jury on the question of whether she was a qualified individual thank you accommodated or not terminated so this case is really more similar to me to baltimore versus four went to schools where simply said the plaintiff was not allowed to show that he was qualified because he was terminated same thing here we haven't had to submit a return to work days we