central issue that this court needs to decide and that is whether a reasonable jury could determine that kitsap county failed to accommodate mr holman when it knowingly provided him with an ineffective accommodation outside of his doctor's restrictions which ultimately led to the end of an over twenty four year career with this employer would be specific about what you're talking about there of course all right because the county argues that it not the whole issue of the reinstatement in the the retirement and so on it's but before that that is what kids at county is arguing we are not arguing that we arguing that kids at county failed to accommodate this or how to manage which led to the end is what connection between the two then can you show in terms of does he ever say or do they ever say that the new job has that problem but some other new job wouldn't have that problem well that's they have to engage in a trial and error to figure that out and as soon as mr huhne i'm in a saying i can no longer do this job and struggling that was him can think that he said i want to retire but that was his way of that was a person with a mental health disability conveying that the accommodation in place was not effective and the court of appeals found for see you know that it is on the employee to convey whether the combination  correct he's sitting there crying and saying i'm not a tough guy anymore i can't do that and then you have a series of events where he's crying at work all the time he is asking his coworkers for peer support he is coming up to work asking for medical if that's what you're presenting to us then we're supposed to think they're out whether the employer from the point because he issued the retirement letter should've realized that this particular job wasn't working as opposed to any job whether that particular accommodation at the point he retired he was so in that light duty position and told them was essentially i don't want to work corrections i want to go do something else while he was struggling with a mental health disability because he was forced back to work when m i've still lost and that's why i jumped and so early because i thought that he took the leave he got doctors limitations presented and they said yes ok we'll put you in a different job than the one you have that complies with those limitations and i thought the employer had done that here that's what i'm so confused about you're now saying that there was something more than you need to do well kitsap county emitted in its brief that it was outside of his doctor's restrictions and  concerns with him responding to emergencies as a control officer and he said i can't be around inmates ok how could he respond to an emergency with an inmate if you can't be around in may right but so then you're saying that there was some other position that he should have been transferred to that the employer refused to transfer him to know at that point it was for it's under for see you know you have to engage the employer has to engage in a trial and error to come up to determine whether or not it can accommodate an individual that that that they just said here's our lady position even though it's outside the restrictions go to trial what other position was available to him that he should have been given instead of though and that's something for kitsap county to have at home as i knew what was what were the options that they had a period it would have discovered that with an additional short medical leave he could have been able to return but at that point he came back he had a letter from his if you look at the medical records the psychologist affirmatively wanted him to back work it was better for him she released him back to work because kids up county told him that if you didn't come back to work he would be terminated and that phone call or he would have to get an never asked us but also that this psychologist and this and in medical records as i recall when he said i'd really like more time off she said no it's better for you to go back to work and the medical records that affirmatively says you can't be around inmates even in a control room or is the can is the art the argument on page thirty which you do make say as if he could never be in around inmates th he couldn't be in the control room because he might sometime have to be around inmates cracked but is that connection made anywhere that that somebody says oh yes control room would be ok but remember you've got to be around inmates in an emergency was he did he say i can't be around emergencies did they say remember you've got to be in emergencies the psychologists say you can't be around inmates in an emergency the psychologist said he can be around  it doesn't matter because he was struggling and that yes but he had been struggling with this problem because it wasn't happening he was struggling he was rich he went back to work i know what did it have to do with the accommodation i mean if the issue did ever come up that he had to up with but it's not because it shows the accommodation was ineffective because he went back to work and he was still struggling he should have been there and he was not only there to go back to work but a psychologist who thought it was better for him to go back to work and i disagree that the psychologist said it was better for him to go back to work i would have to go back and look at that i don't know that that's what his psychologist said is it correct that there's nothing in the record that indicates that there ever was any emergency that he was asked to respond to no and what you say he was struggling is that he drafted in undated resignation letter  was overheard saying that he was contemplating resigning is there anything else that you would characterize as quote struggling this is a person with a mental health disability there is it's not like a broken bone and he can't come out and say my arm still hurts i can't do his job this was his way of dealing with being back in a position that he should never been back and he's ok what you call stress is what was your term about stress relief that this was a way of dealing with that it was  so are you i guess i must admit that i thought the core of this case was around the issues of the right time and in the failure in state are you walking away from those issues now no not at all your honor  he was even if you look at whether he here's what i thought the place was about ok this person has a mental health disability and he basically for reasons connected to that disability gives this retirement letter because he's not that's and have good judgment and someone at that point and then two days later he comes back and says they don't really want to do that and they s taking into account at all his disability they say well you can't do that and then they don't hire him don't reinstate him which is essentially a hiring process the district judge says well that's not an adverse employment action which i don't understand because not hiring somebody is certainly an adverse employment action so at least looked at from a hard point of view it was an adverse employment action and then we're supposed to figure out whether he was just going native against and which wraps in some accommodation because it has to be that he does could you to job with or without an accommodation but you're not telling me that we're supposed to start way back before that to worry about what was going on in this case absolutely and that is what we presented in our brief that had been engaged in the our interactive process with him prior to him coming back to work then we wouldn't be here today when he made that phone call or when the kids at county made that phone call and said you have to come back to work and he said i'm not ready can i use my leave and they said no and that's a dispute the dispute fact they're saying that didn't happen he's saying that this he is this is from sap is that the name of the person yes i believe so but then in fact he you know he did not work and nothing else happened to him and till he came back to work on january to write well the phone call was on december rd i believe so it was a very short period of time that we're looking i never the less he got he got in that s still had to return to a job he wasn't ready to return to yet and had they just engaged properly in the interactive process again we went be here today by an interactive process you would normally think here's your job he says no i can't do that job what's another job so you're so they say here's your job and as far as they know he shows up but again my ability turns on whether that was effective or not and when do you measure whether it's when he's sitting in the chief's office the chief who has a longstanding knowledge of this person's mental health disability and he's crying and saying i'm not a tough guy anymore that should have signaled to the chief that something's going on here hard representing kitsap county in this case with respect to answer some of the questions that have been raised the most important issue according to the plaintiff is that the accommodations were ineffective and she points to the fact that he was assigned to the control room and that extensively was not effective but it was the control room that his physicians specifically assigned him to his mission was given to functional analysis for jobs the full duty job was appears at page eighty five of the record a r eighty five so that was his full duty job dr frye it said he was not fit to perform the full duties she examined the light duty job specifically says on the front page control room and on page one o six s that starts at a r one hundred and at page one when i was sick she authorizes him to perform that duty in the control room through our effective january nd when he was released to duty in the control room until about february nd to be determined later so he was released to what the sheriff's office had created as a light duty job for officers on ellen i on f m and ally or you know all of these other reasons so and at no time did mr hannaman express to the employer that that assignment to the light duty control was ineffective what about the e mail that your opponent referred to where it does seem pretty clear that  that the that the aspect of the controller on duty that would require you to respond in these emergency situations was inconsistent with the limitations imposed so so the the county raised in its brief concerning the medical inquiries because the plaintiff challenge the medical inquiries that were made or asked for on october six when everything came up and so the argument was made by county that the medical inquiries were necessary for many reasons and that includes the control room there are times that a poor employee might need to respond to emergencies in the cold control room mr henderson was never asked to respond to emergencies and in the control room now lieutenant payne to talk about concerns about him responding she was concerned about liability but that's always going to be a question when you've taking a regular officer off the floor putting them in the control room and if you look on there's there were eight employees on duty in the control room light duty during that period of time so you're taking a regular play off the floor you in the control room you're increasing the burden on regular staff so it was a discussion they were going to have how many people do we have in the control move how many people do we have on light duty but ultimately he was given that position and he stayed in that position until he resigned so we think the accommodations were effective he never communicated that they were not ineffective and to communicate that the accommodations were reasonable because they followed what his doctor had prescribed there's an argument that he wanted more time off but if you look at dr france the the notes to  france record when he asked to extend he said if i don't extend my ethen millais leave then i could lose my job and she considered whether to extend his ethanol a leave but she did not instead she said get back to nine is another page because there's a duplicate so of all of this but dr fry and me he said if the employer does not extend my f m malloy leave he will be on leave without pay and hemant agreed to the plant she wrote in her notes s c r ninety nine dollars to extend his leave to january nd and return him to light duty work so she did not get his request to stay on leave indefinitely anste ad said to get back to work so we gave him what he had did that one specifically say the control room job at one point it sort of sounded like you said that but i wasn't sure well the the at that point in time there was there's a note where he calls her on the phone complaining because he's afraid he's going to go in a leave without pay status if he wants additional leave and it's in that no where she says you should get back to work i know the difference between get back to work and can do that job right it's a functional analysis that the county submitted to the doctor two of them right one for his full duty and one for his light duty she should deny the full duty but she agreed that he could perform the control room light duty to ok so at that point at least the county has has reason to believe has the doctor's note that he can do this job now at what point should the reasonable yes his doctor said it was and once once has been determined that it's reasonable then according to griffin vs boise cascade start citing sharp vs a t n t night circuit case we cited that once they a combination is reasonable then that's it the inquiry is over well it's not it's not over if it then becomes apparent or there becomes evidence that he can't do the job i mean if for example there had been an emergency and he cowers in the corner and other people couldn't cover for him that would be evidence but on some sort of asking when he goes to the superior that morning if he hadn't resigned would that have been something the company then should have the county should have understood the only one of the only issues that arose during the time that he returned to work was that he didn't reasons the other issue we brought up was vacation that he won't didn't get the vacation slot he wanted but the as i understand that there's no other evidence that what about what about the meeting that morning where he's crying and he says i can't be a tough guy and well but he was upset you know after twenty four years of retiring retirement you know he was upset but this crying necessarily money before he retired see i think i'm distinguishing it's very close in time and maybe that makes it irrelevant but i thought he has this meeting with all that stuff and then he submitted the resignation like he decides between the two you know the crying event he he drafts a resignation letter sends it to toward the end of the meeting he does get emotional and start crying but does that signal to the employer of our accommodations are ineffective and we said met that no they don't particularly when you look at the evidence  all this forethought that went into resigning but in my sin no kill with his employer that his there is the connection between a disability and this resignation or retirement and that when refuse to take him back because they say he has bad judgment and he's not honest that is essentially in the stand in for or directly linked to his mental health situation well so is your position that i know she's not arguing this now i don't know why but it is your position on that that as i understood it your position on the just the course position is that's not an adverse employment action that can't be right well i think it depends on the facts  if if if someone is effectively forced to resign that's the core constructive discharge cases which would force someone to resign clearly implies for reinstatement they're applying to be hired essentially and if you don't hire it's under these facts it wasn't a fact it wasn't a factor because it wasn't his disability that caused him or to resign it wasn't the ineffective accommodations that caused him to resign he was tired of the job he was just i don't know but the question is why and when should the employer have realized that it was this is just ability that was at least influencing their reaction to whether or not let him come back it wasn't he had already resigned there was no evidence that the resignation was tainted by his disability the accommodations were effective and there was no note and walked off the street and applied for the  if there were i would say the employer would have to do so if there were that showing that the resignation was constructively was effectively constructive discharge rose out of the disability i don't understand i don't understand why qualified person for that job because he just had it and they are saying while we don't want you because as i understand it you are inconsistent and you're just somebody like that because you don't want the job anymore he wanted to be a truck saying he did well but why does an employer have to take somebody back just because they want to take them back unless the law imposes some duty why would an employer office that they need to consider that question without a discrimination based on his disability whether that including whether there is any viable accommodation then there are they do any of that i'm sorry that they do any of that or they just say no they don't want you there's simply said no we don't want  while to me if there's a problem in the case that's the problem in that case but but whether i or is now telling us that's not what the case is about well if it's a wrong headed decision if this is not prudent that's not what the law is the law motivated by a discrimination idea and walked in off the street and apply for his job now they're advertising the same job and somebody walks in and applies for the job and has the same mental health disability he has does the employer have an obligation to it at least not turn him down from the job because of his disability without considering whether it can be accommodated i suppose somebody walks and who can't walk right there's there's a thing there's whole hiring no they didn't they didn't an employer if absent any of those kinds of facts doesn't have to take back someone's resignation or reinstate them if they've changed their mind and at this point all the evidence shows he had a change of heart a change of mind and in fact two employees i think was officer peterson a watkins had to convince him to retract his resignation he didn't want to be a law enforcement officer anymore and he sips supervisors that that was the case and so in the regular world why should someone take somebody back that doesn't want to be there unless you can show that the resignation was motivated by discriminatory animus or if it were resulted from the disability itself can i was just not actual question i thought when he requested reinstatement that he did try to explain that the earlier resignation was a dispute a fact your honor as to what was said during the meeting on january nd the sheriff's office says that nothing was mentioned during that meeting about him wanting to come back because of he that he resigned because of his mental one of the exceptions you said was if resignation had been connected to the disability it seems like there is in fact but is it connected to that we think there's no question of fact that it wasn't connected to the disability to  whether he asked for reinstatement on january nd when he asked for reinstatement he said it's because i resigned because of my disability right but i was agreeing with you up to the point where the employer you know you get the right as a nation it seems on its face it seems legit you didn't do something to sort of force the person out i get that but when you're when you are put on notice as the employer that the person says wait a minute i didn't mean to really resigned this i was going through this thing that's connected to my disability don't you have an obligation about point to do some different analysis is just proving this is just not if you don't believe that it was the disability that caused his resignation and the facts of this particular case show that was not that it was he very thoughtfully planned out his resignation there's nothing in the record indicating that reinstatement was medically necessary he didn't even provide evidence that reinstatement was medical necessary statement obviously isn't that medically necessary working and making money is maybe personally necessary that's not the question the question is why should this or whether we had to accommodate him by taking him back well an a dation requires medical necessity and here there was it was not medically necessary to reinstatement the wheeler case the let those three of those cases that talk about reassignment transfer restructuring budget let's go back to my person off the street ok the person off the street comes in and applies for a job these in a wheelchair right the employer  employer say i just don't lend money in a wheelchair now under the statute they can't what they can do is say i get it there's an open job you have some qualifications for it but you would have to be accommo he quit voluntarily pay a fine but now he's coming back well does an employer have to take back an employee who quit voluntarily absent these other  saying and i don't really think quick voluntarily was part of men just by having i think we've if you if you if he was treated as someone off the street you wouldn't have an obligation to generically  accommodate him you would have to look at the job and say can you in the wheelchair do the job just as well as somebody else if we provide you with this or that exactly that little different ye respond to emergency situations it was an incomplete job now assess didn't have to respond to emergency situations so it couldn't be the reason why he was floundering that's not necessarily true there could be other things that weren't included in the job analysis that she might not have signed off on what i'm saying is she was not given the complete picture of what that job entailed by kids at county when they provide her with the job description and just to touch on that it was or that it was thoughtfully planned out retirement it wasn't that shows a grave misunderstanding of how subjective mental health illnesses work and what's on the record on that question so we do in the record have their forensic psychologist report from dr jeffrey hart which stated the fact he was so angry about something that seems so inconsequential to a lay person without a mental health disability the vacation leave what it showed was that he was in the throes of his mental health disability and it