good morning your honors council staff and observers my name is jennifer robinson and i'm here this morning on behalf of the appellant camp unless there are specific questions from the court on other issues my plan this morning is to address the district court's grant of summary judgment on mr aris failure to accommodate claim and on her disability discrimination claim the district court granted summary judgment on the failure to accommodate claim after concluding that miss operate could not establish a prime aphasia case because she had not requested a plausibly reasonable accommodation summary judgment was granted on the disability discrimination claim after the district court concluded that massara had not established a prime aphasia case because she could not show that she was a qualified that she was qualified for her position with a reasonable accommodation thus both claims turn on the existence of a reasonable accommodation before getting into the heart of the argument i'd like to start with a quote out of the th circuit and sure versus board of supervisors and it's this and employer may not stein meet the interactive process of a demo filing a reasonable accommodation for employees disability by preemptively terminating the employee before an accommodation can be considered or recommended that's exactly what well county did in this case a brief factual background in january tw gains in all areas and exceeded expectations for improvement let me ask you a question about the leave so she asked for family medical leave act leave originally were and that is correct and that last coppice testified to the supervisor was that she granted lead with no specific in it so there was no need for her to request morally because it had already been granted with no specific that i thought that i thought that that may have been true at one point but i thought that that at the meeting they called she said that she had a nother meeting with also wouldn't that have been a request for an extension for an accommodation for that period of time or not yes when we when we got to the hearing april th and we got to the hearing when we got to that hearing  specifically say i need to go to this other doctor's appointment well let me back up a little bit before what happened at that meet so as i said on april th the the meeting was on april th so april th she had gone to her therapist got a recommendation she was doing well she had previously scheduled a meeting with her neurologist because she found that she could go back to work earlier than july th the original date so i'm april for th that's when the county basically called her in to say tomorrow we're having this pre term in nation here but july st yes your honor she had an explicit request until july st two thousand and fifteen for her leave so from that point that's when the supervisor approved the leave but said she didn't give a specific  very st time if she could come return to work in a couple weeks to do her full job now that request should have began the interactive process not in that miss arbor responded in that meeting that she had an appointment for may nd two thousand and fifteen and she asked for continued leave so that she could get her doctor's approval for the return to work date and earlier return to work day if they'd have appointment on may nd two thousand and fifteen to get my doctor's approval so when you're on continuous leave it's required that you get a doctor's approval a certification in order to come back to work so her response would have been they'd asked specifically those questions yes i have a doctor's appointment i'm following the company's procedure fifteen days are usually allowed more can be allowed if requested but that was the very beginning of the interact process are you saying that it was the employer's responsibility to ask her whether or not she needed more time rather than it being your responsibility to show and show reasonable accommodation no your honor that's not what i'm saying at all what i'm saying is at the point when the employee is on continuous leave she has no idea  employer says can you come back in two weeks in order to do your full job that's when it was their up they asked if she could come back and it's her obligation to begin that interactive process as well she doesn't have the ability to say well here are my restrictions after one day notice her only response can be i have an appointment may nd two thousand and fifteen to see my doctor to get a return to work certification that's as of the date that this meeting occurred and during the meeting i mean she essentially informed her employer that she had a lot of limitations that were going to make it hard for her to do the job a fair statement she said that she had she said she'd been approved improving her sight was improving and she did ask for some accommodations but but yes people  disabled she wasn't one hundred percent i'm not one hundred percent so right she did ask she did say that she wanted to go back to her doctor to get medical certification to return and when when think it's at three hundred and twenty two but in any case the note basically said that she that her friends the condition she had had resolved so she did get the documentation showing that the condition had resolved as long as her blood pressure remained under control so now at at this point remember may nd two thousand and fifteen she's already been fired now so there is nothing that she can give to the doctor to ask what restrictions are needed because when you determine whether restrictions are needed what you're looking at is a specific job with the job description and showing what the duties and responsibilities are so the only thing that  he could give her was the certification saying that your condition had resolved and thereafter she did go to the doctor again on june th of two thousand and fifteen and he did say that she could return to work and again no restrictions were imposed at that time because there was no job description she'd already been fired there was no nothing for her to bring to the doctor fire  nuance going on here though because i mean she has eleven physician that says you can go to work no restrictions but then when she was offered another position with the county after she took her note back to him and said have been released they said well we'll offer you this other position and then the word was that there was another doctor that wouldn't release her to do that job well well it kind of sort of your honor  certification saying that she could return to work but it didn't from one doctor from from wonder if this was the same doctors though your honor ok but that certification did not say that she could return to work with no restrictions and it couldn't have said that at this point because there is no job description for her to for the doctor to look at to evaluate whether she could return to work with restrictions or not so the only thing the doctor could say is you can return to work and then that's part of the interactive process where now the employer should be saying well we have this job or we have that job then she has to go back to the doctor too to have him look at those specific job requirements and if once she's been discharged it depends upon the timing of their preorders are you saying that smith versus middle and says that she does not have to reapply i do i am saying that you know and i think  i was relying on smith and i don't believe that was cited by judge moore cruise case but in any event looking at whether or not she had to reapply for the position we look familiar with that sort of case i might be familiar with the facts but the name doesn't immediately cut another case although it's an order in judgement that says that she must real apply for that to apply or to her well what were we are looking at two different time points your honor the claims in this case are all related to her terminations i'm june i'm sorry ma and fifteen so so that would be another claim but the discussion that i was having today was related to determination so that would be another issue that we would look at once asked about timing so whether or not she had to reapply or whether she was applying or whether she was in the process of seeking to return or has to be judged as of that april twenty day right april th is the date that and so it  that's exactly what was stated during the hearing into whether she reapplied or didn't reply afterwards if if she was wrongfully terminated on the th because of a lack of comedy sions negotiations that would be may have been other claims based upon this failure to provide another position but right what we are talking about is based upon the terminations on april th and twenty two of this record would support th employer could have had any reasonable doubt on april twenty of the she wanted to come back to work hopefully in that job or in a comedy to draw there is no dispute about that at all your honor there is a written transcript it's in the record it judge moore looked at but she was absolutely saying she wanted to come back to work she had an appointment on may nd of two thousand and fifteen to get an earlier return to work date and she suggested accommodations in addition to that downgrade or some other types of transition training that she would need so there's no doubt that the employer knew that she was intending to come back to work she wanted to come back to work and that is the beginning of the interactive process not its end thank you counsel your overtime thank you case of disability discrimination under the a t a i the rehabilitation act and the cop colorado anti discrimination act plaintiff was required to establish he was a disabled person as defined by the a d a s he was qualified share with you what's bothering me in this case counsel is that when you look at the dates she was offered a position in the motor rehab apartment which they said she could do but at that same time the very position that she held when she was discharged was open and vacant because the lady that was in there had been already been permanently transferred now why if the county knows that and doesn't offer her that's your argument well she didn't apply for well assuming she doesn't have to apply for why isn't that some type of discrimination when they offer her one job which she can't do but the very job that she was doing she can do it's open it's bacon in that that's not mentioned too much in this record had and that ms wall held that position after plaintiff was terminated because she indicated that she couldn't she was clearly an interim wasn't wasn't she always told what it was known that she was holding that position as an enormous i meant or was she permanently assigned that is what i believe it was and it was an interim physician but it but it was a position that had that needed to be filled in plaintiff's absence well let me let me help you out there a minute because it was she was assigned as a temporary position but then she did get assigned to that as i think for a permit but for like only three weeks and then she transferred out and at the very same time that she is being offered a position that she can't do the very position that she hill was vacant open than what it offered in that right in june of two thousand and fifteen in july in july as i think i think that that is true but at that point in time plaintiff had been terminated because in april she had indicated that she could not let me let me back yep tape roll so in april you have a post her pre term anation hearing your client does and they say look we've got to fill this position and it doesn't appear that you can do the job so unless you can show us that you're going to be able to come back to work and do the job we're going to have to terminate you right yes yes ok and she says i don't think this is exactly how it was said but she says something to this effect of i want to come back i'm trying to come back and i need more i need an accommodation of more time fair characterization of what she said yes ok at that point what was your client's responsibility well if if you are is asking did will county have an obligation to extend appear believe period indefinitely under the case law they did not ok compas testified in her deposition that they needed that position filled because in april there was a lot of work to be done it couldn't the position couldn't be left vacant ok so let me ask another question so assuming she would have said that day i i'm ready to come back but i'm going to need an accommodation you're going to have to help me with something is there anything in the record showing that she could have done could not have have been accommodated without creating a new position for her and putting extra burden on her coworkers that's the problem with not fulfilling your duty  interactive process because i think everybody agrees that she could not have done the job with accommodation question was it was never any dialogue about just exactly what kind of accommodation would you have needed what kind of  a and we just don't know that well she never claimed she come back without any accommodation no it should but she did but she didn't she didn't express  any potential accommodations that would have worked she said she said she needed to talk to her doctor to see what additional restrictions she would need she said she was improving and progressing in the she wanted to combat but the company never said well then how can we make this job work for you they just they violated their own policy of not even giving her ten days to try to get the result of the cases they just simply said no you're fired and at that point the violation if it was a violation either occurred or didn't occur that was the defining moment from there on she was an outsider looking in rather than an insider trying not to get kicked out that well county had a policy of allowing employees fifteen days to obtain a return to work clearance from and from a physician and she was only given one day from the time she was asked to attend the  meeting but what ms compas testified to was that well county typically afforded employees fifteen days after st going on leave to meet with a physician to fill out an eighty a form to ask their physician what accommodations could be made to permit an employee to return to work and none of the plaintiffs physicians filled out such a form and they all opined that she was unable to work at all until the year at the earliest august that she was in that it was going to be an extended time before she could come back he i believe so yes ok what do you how do you respond to this statement in smith ten summary judgment that my concern here is a summary judgment i mean i don't know how she would work out on trial but my concern is the summary judgment and here's what's miss as about that summary judgment would be premature if there is a genuine dispute regarding whether the employer participated in good faith in attempting to secure a reassignment as part of its duty for a reasonable accommodation now to me what that says unless you can convince me at least that the record shows that the employer made a good faith effort to accommodate her that as long as she had requested accommodation it's from a judgment would have been inappropriate how do you respond to that statement in smith about this being disposed in summary judgment and as i just want to stress again that some of your arguments i was she had a very serious illness and not at all sure that she could show she could ever do that job with accommodation but the process seems to have gotten aborted st because she didn't have an interactive process and secondly she didn't have a trial so twice otus i mean help how can you if you tried to get a doctor's certificate of your ability with on a wendy's notice i mean that's just not even a realistic possibility that that's true but she'd been doubt she'd been she hadn't been at work for four months and she had no idea that she was going to be called to make that presentation the next day she thought reasonably i guess that she had still time to let the process play out which i just want to stress that i just i think i do not know i mean i thought i was very struck by the level of her disability that i have no idea that you could prove her case but it does seem to me that this interactive process that we in the supreme court say is so essential to an a t m i just don't see how she got it on that one day's notice that the ability to get the doctors or vacations she needed but as the district court h may nd date that she requested until to see her neuro ophthalmologist i think it was was not to get a certification it was to find out what the status of her condition was and in fact she wasn't given clearance on may nd all weld county knew was that her from her physicians uniformally up until that point in time said the earliest she would be able to return to work would be august st of two the they didn't say one way or another right so if if they had all you would said just quoting what you said just now to us until that meeting everybody assumed august  st was it was going to be the date and so if that was everybody's assumption and then she had no chance to come up with to have us once that assumption changed is that is that consistent with their interactive obligations i would argue would that the the meeting itself was was an interactive process that well county afforded her to come forward with wood with some information to establish when she could come back to work and what her condition was going to resolve i mean isn't isn't that illusory though i mean come in for this come in for your interactive process tomorrow and be prepared to tell us the accommodations you're going to need to perform your job when you can't know that until you see your your ologists and you can't even see the neurologist for three weeks after but but there was there was no indication that the neurologist was going to say you're going to be clear for work and based on what this plaintiff said at the meeting she did not give in part any information that would have allowed will county to reasonably accommodate her in i mean you're i mean because she didn't have the information i mean your case your case could be different