good morning counsel good morning your honour's james bowles on behalf of appellant time warner cable and please the court this is a straightforward legal issue the jury found that my client time warner cable did not fail to accommodate miss purana they answered question twelve on the verdict form and said that said no to whether or not time warner cable failed to accommodate miss per miss purana in other words they found the time warner fully accommodated misao words were fully come from well that because they answered the question and the question was did time warner fail to reasonably accommodate as miss purana and answer was not as explained by the district court but could well have been at one point they didn't fail but subsequently they did i mean the neither the other interpretation is dictated by a question that leaves out the word either ever or always it it is dictated by the law because the continuing duty is both the duty to accommodate and to engage in the interactive process but there are different concepts of the not there is going commendation is part of the interactive process but it's not the whole thing actually your honor is correct the reasonable accommodation is the end of the objective and if you provide reasonable accommodation if you don't fail to reasonably accommodate then you've accomplished the objective  as i understand time warner's position you're basically saying if you have a continuum you start at one and you go to ten if time warner reasonably accommodates the petition or the pella rather than a belly in this case in time periods one and two and then stops there after you said it's no problem because we accommodated her at this point this court takes the position that you have to continue to have this interactive process they stop doing it thore would you rely upon to suggest that that is not legally correct well because the jury didn't find that we stopped doing it the jew would just say let's look at looking at the allegations of i understand it correctly it is that you know they said you can take the time off up to a certain point and the supervisor says you know why don't you just quit and come back when you're well she didn't do that so they let her go so right hard to our position is of  understand it if they did accommodate me up two point two in my example but they're after they let me go they no longer engage in the interactive process because there are other people who were getting part time jobs they didn't do that for me two points on that your honor first of all the jury did not fill out anything about her terminations or not granting her a continuing to leave and question number twenty four but we looked at the entire record do we not in our in the harassment you had on you you have to look at the actual verdict and what the jury found on the jury found there was no failure to accommodate but we construe we construe the milling did not find there was no failure to accommodate as you're using that phrase your honor the question was number twelve did time warner fail to provide reasonable accommodation for statute here the fact that america pride reasonably accommodate a watkins disability forecloses his allegation that ameriprise had failed to engage in the interactive process and that was the one case after a after a  trial so the court found that because there was no failure to accommodate there could not be a failure of the interactive process similarly this quite recently and alamy zero as as you're aware  burlington northern held that were no accommodation is possible that you can't engage in a violation of the interactive process we're talking past each other because we're we're focusing i mean all i can say is the district court understands its obligation to try to harmonize the answers and gave it some explanation and this explanation turns on how to take well what to draw from the the answer the jury gave on the special and i guess i'm saying that the special verdict form the question of whether you provide a reasonable accommodation is also an ongoing duty just like the interactive process and when the jury sa that time warner did not fail to accommodate its ongoing duty to accommodate and if the at the question had been just like you have rephrased it we might have been able to take the answer no as being an answer to that question but that's not the question that was on the form but but the reason the questions on the form is because that's the standard form in and and so the cause of action for reasonable accommodation asks that form asked that question on the form that's the question the answer and that's the question they answered correct and so they found there was no failure to accommodate at any time they didn't say that they didn't say it but that's but that's your interpretation but that it that's what the question is because the cause of action goes to the entire period of time when you look at the complaint when you look at the cause of action that juries being asked did time warner fail to accommodate not our position a difference here other than the amount of time in our our position is that the jury looks at the entire period of time in answers and question what do you base that it because that's what the cause of action is that's what the jury instructions are and that's what the verdict form is so so all of the cause of action doesn't ask hey did you accommodate or for some period of time the question was there allegation is that time warner failed to accommodate her disability and the jury said no on that now the but it would counsel again and my colleagues that i think we're going to talking past each other you you put everything on the reasonable accommodation it seems to be based does have meaning but but where an accommodation is provided and who and where the the company does not fail to accommodate the disability i want to point them at it at any point and so you get back to my earlier example a comedy for one day and fire her that's ok that it did i mean if that it if that had occurred the jury would have said you did not fail to accommodate or in this case the jury said no you did not fail reasoned was the following base fit which evolute it to that under swanson versus mongo the duty to engage in the interactive process is ongoing right but what we pointed out is so is the duty to accommodate so if the jury found there was no failure to accommodate then there then it can't have found that the interactive process broke down because the accommodation is is the object of the process the process is supposed to result in reasonable accommodation the jury found that time warner reasonably accommodated miss perona and i'd like to get to the evidentiary i mean the essence of the  the jury and question number twenty four on the verdict form said two things that could have been done during the interactive process change the work schedule to part time shift and reassignment to a vacant shift or vacant position that she required to work a morning shift she wanted to work only a morning shift and she refused any other shift and she refused to reapply because remember time warner told her at the time that they terminated or is soon as you get better come on back and we'll put you into the next class and that's why the jury found there was no failure to accommodate her ok and and yet she didn't reapply why because she said she didn't reapply because she did not want to work and afternoon shift she would only work a morning shift and that is to immunise as counsel i gather that the doctor said it's ok for her to come back but you should only work part time with one of the doctors about the time of day he said he said specifically and this is in the doctor's order exhibit a excerpts of the record three thirty must work a morning shift and that's what time warner had that's the only think time warner had from the doctor in the and the case law i thought you said she said the same thing she wanted to work a morning shift right she said she must work a morning shift she said i why i must work swas that there were three hundred people she applied for a job and she's told you got to work a night shift because there's three hundred people in front of you that have greater seniority and the other people have physical disabilit i'm sorry which other words she wants reasonable accommodation because she has a disability sure ok so are these three hundred people all people who have made application for reasonable accommodation no they're not but but but under barnatt u airways versus barnett seniority system where employees are given a preference for shift him or any other preference because of seniority has to be followed not a reasonable accommodation read the reason is there were other people who have these part time shifts and she didn't get one is because of seniority based on some you know or deal or something well because because they could get the shift within within their period of time and they had the seniority correct correct so so what she said was i will only work a morning shift and there were no morning shifts available and the same thing with a vacant position there were no vacant positions available that didn't have the seniority system the same seniority system you have in the union or what is the source of this no it's actually it and it doesn't matter because because the case law says  run a shift it once a year and it's just based on your seniority date so you get the first bid in and then like the airlines you're right and you go through that first three hundred people were all ahead of her and so they took the morning shifts and so she couldn't get of your defense is hey we couldn't do this because of the seniority system correct you rely on that case rhetoric barnett yes and and and the jury so found the jury found that we did not terminator improperly there was no wrongful termination there was no discrimination there was no retaliation we won nine out of ten of the causes of action the only cause of action that they hung up on was this  interactive process and they were talking about change of a work shift to a part time chef but the but she only would accept a morning shift and that wasn't available and she also said the jury said reassignment to a vac on morning on morning may please the court frankly on on behalf of think if katrina purana the major flaw in time warner's argument on appeal is that they're attempting to reconcile the verdict but they're reconciling it in their favor they're making of the inferences and assumptions in their favor rather than looking at the evidence that was presented to the to the jury and interpreting in the light most favorable to the plaintiff let's assume argue one though that we agree with your accommodated in the iraqi process but that neither of those was available based on a security system with a response to that well your honor the evidence at trial with regard to the change in work schedule part time which is the first thing that the jury wrote down time warner wants to focus on their shifted however looking at the evidence in the light most favorable to miss perona the evidence at trial was contradictory when we had the time warner employees and this is in our brief but when we had the time warner employees on direct examination no one had a handle on what the shifted process was as counsel pointed out there's no written policy on the shifted there's nothing that indicates to the employees how this shift that purportedly works the shift did wasn't even identified by miss long who is the human resources person who denied mr perowne his return to work so there's nothing in the record that would make it a clear cut finding that this shift been applied so with regard to a part time morning shift they could have accommodated her if we look at the evidence in the light most favorable to mr perona on the other hand even if we don't look at a morning shift testimony by miss prone and her doctors was that she could have worked in an afternoon shift and that's in the record she could have tried she could have tried and as your honor pointed out that's exactly what the interactive process is about and testified because she just went one point do you have a saw before that she thought the doctor who told her it had to be morning miss miss corona did acknowledge on examination by counsel that that's what her doctor's note said the doctor's note said must work in the morning when she was pressed on that sheet if you look at the testimony that cited in the record what she said was sure that was better for me given my medical condition working in the morning was better for me but that didn't she didn't testify in a manner that precluded any other time that she would be able to work miss prono wanted to return to work that was the whole purpose when she was asked specifically about an evening ship and i thought you said pretty specifically she wasn't interested in that i don't know if you lose your home and specifically about an afternoon shift in the park and i read but she didn't seem to say i had morning that was best for me i wouldn't want to change the way f you say in some point you're willing to take an afternoon shift she said she would have considered it your honor and you're correct in that there are two different issues that are being combined here the evening shift that she was transferred to started at ten p believe and that was just a no go for her she was unable to do that and that's what started the entire leave but with regard to working the shift that she was in starting at one o'clock that was certainly something she would have been able to consider and she would have considered it and it was certainly approved or would have been approved by her doctors and her medical expert testified the same way with regard to a vacant position time warner cable is trying to  pigeonhole the accommodation in that in the july time frame when this proto tried to return to work well first of all she could have gone back to her own position at that time but if we go to the end you know if we're just looking at  vacant position number one with her own position her own position and again this is in the brief remained open the entire time she was out and wasn't filled until after she was terminated so she could return to the position we also listen to testimony from miss long who's the r representative and who was in charge of the hiring process at that facility that there was a constant revolving door of new employees there were new classes and in fact in the record there was a class in december reconciled the for it and upheld it i'm still trying to sort what you said there at the end she could been placed in the new class in december but would that lead have led to the position that she preferred that is the morning part time shift because if it is i mean i'm going back and forth but under the the bid system if she comes in a new class in december there are certain you're too certain not going to be better than it was already and i thought it was said at one point that the problem is that there are other people in front of you in line and we can't let you jump the line so that's why you can't have the shift you want well would she have been able to get up an absolute morning shift we don't know  because it was never investigated by time warner at the time but don't forget also that she had now been there for a at least a year and so she would have had seniority over the new people in that class and she may have been able to get an earlier shift maybe not a morning sh system and there were no exceptions on the morning shift again exhibit eight which was dr good los note doctor's orders you got to follow the doctor's orders the case law says that if there's also testimony i think from him that he would have encouraged her to work and that could have included an afternoon shift i understand that but from the employer's perspective what's offered to them is the doctor's order and the case law under hansen and there's other cases specifically says that the employer must follow the doctor's orders and it's it basically says basically says in hanson it that the employer is obligated to follow the doctor's orders now in addition can you help me i i'm right here not see where the district morning position is that the court does say that she would be willing to talk about the evidence and said she would she would try to work in the afternoon edition right i mean i'm not sure that the district court fully dealt with that here you the seniority system but dr good lows note exhibit eight said must work in the morning and time warner was entitled to rely on that that's what the case law says hanson versus like the stores on the other cases say we're entitled to rely on that that's what we knew that's what time warner knew and it was following that now she says she could have returned to her own position that seniority system still in place are still three hundred people in front of her so so she would not have been able most soon as she quit that was slow she couldn't come back right now because because it am long told her in the in this was why that was part of the reason the jury did not find a failure to accommodate and long the h r person in this was in in the terminations letter said you can reapply and long testified i will put you back into the next class i you know is soon as you get better and can come back to work i'll g like you don't put you in the next class that is a reasonable accommodation that's like giving an open ended leave to the person and allowing them to come back so there was reasonable accommodation for the question well i'm calling all right thanks to both counsel we appreciated the