my name is cindy pollock and may please the court i represent the appellant and today i have i'm honored to have seba behind the appeal of mrs caldwell and miss brenner is argue going to argue the failure to accommodation issues and i will be handling the adverse action i reserved two times for rip two minutes for rebuttal and so i'm going to be addressing the adverse action which all claims with the exception of the failure to accommodate claim was rejected by the district court based on him finding that there was no issue of fact there was an issue a fact that only a jury could decide because you have my client who was denied a reasonable accommodation request she was placed in a cubby she i agree with the fact i don't agree with the fact that the first step was this meeting that was going to be held the first step was the union representative contacting that manager and talking to her about giving this lady daytime chefs and that was the first thing and guess what the union representative told my client that that's out there's nothing i can do and i understand why you feel discriminated against that's step number one step number  obligation once someone comes to me and says that there's an issue here you've got a employee who thinks that she's being discriminated against that is the management's responsibility to make sure that i sit down with that employee because i'm the one who's got all the power the employer legal obligation that before you can file and this from and this ability discrimination suit you have to sit down and talk to each other there is under some statutes is there and he saw in this case well in the reasonable accommodation aspects of it all we should be discussions between both because an employer is not going to be we had i view this as a reasonable accommodation case is that not what we happy for you have a case that has i have age discrimination claim i have a disability discrimination cl i have a retaliation and i also have a failure to accommodate claims that three besides looking at the euro accommodate those three were kicked out on no adverse action stone and and in your argument before us in the briefing this fall if i read it right although you drop a footnote which seems to say we're reserving all our claims everything you've argued revolves around the alleged discrimination based on disability right there's no comment about retaliation or about age discrimination it's all about she had a disability substantially limited her life major life function they were obligated to give her an accommodation they didn't do that and they treated her badly so that correct me if i'm wrong show me where i'm all but all the argument that's been made here revolves around disability discrimination i corrected that now oh really now i thought it was failure to look common eight because the district court said that you don't have to accommodate based on what's outside the workplace that's what i understand reviewing and i think it's your argument that this takes place in the workplace because that's where the briefing take me to it if you would wear something else has argued here beside disability discrimination i if you look on page eleven i'm terror argument number three i state a reasonable person could find that cobol was forced to resign because writing it would not change her shed did not respond to her complaint that she was being treated differently and she became physically ill based  physically ill based on should be her mistreatment and i thought no one the district court dismissed all claims based on the fact that they concluded that caldwell could not establish an adverse action consequently colwell six revival about claims disability age discrimination retaliation senshi can show that she was forced to resign ok and i think that's the footnote i explicitly referred to when i asked my question i know this for here what i'm asking you is is there any argument framed in this brief the talks about anything other than each discrimination if there's not that's ok does not mean it was a disability excuse disability discrimination if there's something if you argued in here other than this footnote anything about disability that is what i'm addressing it makes no sense for me to say oh i'm appealing that something that the judge didn't decide the judge threw out all claimed complaints based on the fact that i could not  vincennes the failure to accommodate his or anything else we need to do yes deal with the fact that i have an adverse action because failure to accommodate as required by the statute what beside that should we get into because i have outlined in my complaint and i bought for the other claims of age discrimination what would you get from that because a jury who knows what a jury is going to decide they may decide one thing they may decide another thing that's why to have as many claims as i possibly could you do this all the time i'm not sure you're right on this one  the substantial inpatient major life function here no arguments been made about a record of impairment or about being regarded as disabled correct now and this is the judge had decided that there was my client was one more would you get if you win on the failure to accommodate a disabled person is there anything would you get what would you get if you what we think is the  damages yes so there may be some issues that maybe you have a lawyer you have to tell us what your claim is yes and our claim is all damages but you asked me what the difference is between it's what do i get more i get a retaliation claim it's easier for me to prove an adverse action when i get a retaliation claim that i don't have to show so much well what do you have to show what's the so much you know happens that i like a job losing your job i don't have to show that in a retaliation claim versus  on a straight disability discrimination claim i have to show and i had a straight higher standard ok thank you consideration what putting her back type a really that would put her in position that she would have been and one being her job working for riding if that's possible  say yes your honor for the time period that she was not working if it was not appropriate to put her back at the old ford store and there were not their positions open at another store to place her you would again particularly since rite aid had no neither right eight human resource person nor miss chapman the store manager had any type of human resources background of certification they had not done any disability training what little bit off the top of my head your honor i cannot cite you a case in which punitive damages which he warns of this is an ad hoc decision and i think it's something that would definitely rest on the facts of each individual case so and the stack you provide  question much of the discussion seemed to be like people sort of talking past each other in the briefing with an argument from the plaintiff that this is a this is the major life function issue here is seeing from the defendant the major life function here is night driving this is the e e o c have a position has it taken a position on whether or not being able to drive is a major life your honor we have taken a position that driving is not but i will tell you that there is actually no dispute from the plaintiff perspective that major life activity she assert vision and not driving i i understand her position clearly now and this is something that perhaps a good ass miss paula when she's back up here the record appears to show ms call will saying pretty emphatic boy the only thing my loss of vision of facts is my ability to drive at night that i can do everything else and i do do everything else i'm fully functional fully and the only thing this that i i can't do is get here at night now that's certainly the way the defense frames an end and i've kind of gone in and tried to read the appendix and and seen were there quotes from the deposition so assuming that that were true that that really is the only manifestation in her life of the problem with her vision is that she can't drive at night there's that are we talking about the very same thing but just using a different word when we say this is about vision and not about driving now your honor this is clearly about vision miss coldwell to proffer more than just the inability to drive at night which made it very clear that she had difficulty seeing objects that were to the left of her in essence her out of her peripheral vision that she had depth perception issues that she had field horizontal field issues and impediments with it but but driving at night amplified the problems that she was experiencing she also continues to experience painful pressure in her eye for which she needs surgery but cannot afford because she no longer has a job so in the meanwhile she says taking i drop to her access to equal opportunity and the impediment her frizzy or the phraseology comes from the statute which requires the employer to address any known physical or mental limitation that impedes the person's ability and access to the workplace and under reasonable accommodation in the statute it says modified mark schedule b to provide part time a modified work schedule with in the legislative history and understanding that if a rigid work schedule isn't peeling that person's ability to enjoy an equal opportunity of reasonable accommodation and those were the ones you mentioned before job restructuring part time or modified works kettles and other similar accommodations so a mormon so the statute specifically targeted discrimination to employment and your honor in this case the accommodation is is within the employer's control is possible and removes the impediment to that person being able to perform their job duties in this case access is the impediment  grandchild was not the impediment it was the work schedule miss coldwell wanted to work this job she was capable of work in this job she was qualified to work this job the impediment was her work schedule which impeded her access if in fact writing were to accommodate her and to award her with the grant her a daytime ship the reason this is not about driving is she would have been able to take public transportation which was available during the day time she would have been able to take a ca which was also available during the daytime and not the evening shift in addition to possibly driving herself but let me ask a question if i might since the record we are presented with includes a statement the following this is from her deposition page eighty five the question is at the time it was diagnosed in the summer of two thousand and five and while you were working for rite aid what kinds of limitations did you have as a result of the condition if any and the answer is the only thing that would be a limitation because i have i could see perfectly well with my right eye and perfectly capable of doing any duties that i was required to do the only limitation was night driving and then the follow up question on the next page was how about your every day life things you would do outside of work in the same timeframe summer and fall to two thousand and five did you have any limitations as to what you could or could not do besides drive answer because of the you this question because i'm asking about a broader issue than just this case ok yes and and i don't think i want to speak for anybody but me but i have the temerity to do i think there's anybody on this  feel real like a great deal of sympathy for somebody who's lost sight in one eye it's a terrible loss but it appears that she has by her own sworn testimony said the only thing way this affects my life in my everyday life or at the job the only way it affects my life is i can't drive at night now so here's my question to you if if that's the record before us how do we say this was an impairment that deserved an accommodation and not have that interpreted by people as saying that driving at night is a major life function how would we frame a discussion of this or holding on this without doing what the sixth circuit had said in that unreported w case that would make you know forty five million people i'm sure a number they pulled out of the hat but for rhetorical fact are disabled ones because there are many people who can't drive at night for one reason so the short of it is how would we the holding given this specific record and you want the holding to relate to having a disability or being entitle to an accommodation well you're the one i mean ok looks like she's the only thing i can drive well first of all your honor thank goodness this is not that case where your facts are limited to just those those allegations she did in fact allege other ways in which she was impeded by her view in her vision area which have already recount an already set forth in the brief to address your issue if it were in fact just limited to these facts why can she not drive at night because her vision is impeded how is her vision impede peripherally and feel and horizontal burr all she has to demonstrate is that as a person with monocular vision she is clearly disable and she's met this not so onerous burden of a stab wishing that she's disabled why because she was sixty six years old when she became blind  eye so there's been very little time for compensation so that she can somehow warrants a live with vision out of just one eye and work she has also shown that she restricted in comparison to the average person that can see out of both eyes she had no sight in her left eye she cannot see out of her peripheral vision she cannot see whoever's beside her she bumps into people when she's driving she's not sure  night driving is is a point of evidence but a statement in a case like this is not a statement equivalent to night driving is a major life function it's only one piece of evidence in talking about vision as a major life that is correct your honor that driving is a byproduct of the fact that she cannot see all right i have could not get to work as a result of her inability to drive at night but the actual record shows that this call got to work every time she was scheduled for work i thought it was remarkable because you seem to pitch their argument was as if as if her being a really good employee was somehow something that should work against this case it seems the question is really not so much whether she was able to overcome the problem of getting to work but whether she told your clients i have a problem getting to work which the record seems to be on the spirit it on she did she went to miss chapman and she said this is create a real problem for me why isn't that under our case requiring employers to engage in an interactive process why is that not enough to put rite aid on notice that they need to start thinking about whether there's an accommodation in order your honor i would respectfully disagree that the record clearly shows that ms call well stated that this is a problem for her the testimony actually employers obligated to do in that situation to have a conversation to engage in the interactive process and as a at the end of that conversation mr chapman walked away thinking that ms cole had a cover so you get rides from her son or her grandson at the end of the day then are you suggesting that there's a material issue fact through the requires reversal because if her version of the facts is i thought we had it all worked out and his colwell version of the facts is we were far from worked out and they should have known it because they got the union rep involved we had a meeting set up they had to know i was unhappy if those are two competing sets of facts how is it that the judge is deciding the outcome here and not a jury well not at all your honor i think miss caldwell also testified that yes i absolutely said during that conversation that i could get rides and there are references in the appellant's brief to the fact that she at some point said to the manager this is going to be could be a hardship for my family but the record actually shows mused colwell never said that to the manager so that's a coworker are we are we obligated to look at this record in the light most favorable to ms caldwell and i think even if we do we come out with a finding  such material and we can that is a yes right ok so since were obligated to look at this and her in the light most favorable to her and it's under spirited that they have a discussion and the content of that discussion apparently isn't dispute because i'm hearing very different things from the plaintiff than i am from you about the content of that discussion and if the content of the discussion being in dispute also includes a follow up meeting that was supposed to take place from which one could infer if you were inclined to look at this in the light most favorable to miss caldwell that there was a continuing problem why isn't that in and of itself anough to say hey there's a genuine issue of material fact as to whether or not rite aid knew that there needed to be an accommodation here why isn't that right aid and i agree with you obviously i can't disagree that we need to look at the all you have heard is a ladylike but that's very favorable to the planet that's pretty settled law but i think what we need to look at the record and you see that it's not just that maybe perhaps ms caldwell herself came away from that conversation with a different thought in her mind but right is not obligated to be a mind may have said that i can get rides from my family that takes the employer off the responsibility of making a reasonable accommodation  understanding that the statute talks about the employer's responsibility and why does the fact that she might have been able i mean this she worked she was parked time worker right yes ok how many days a week get it buried was approximately fifteen to twenty hours a week ok and if she couldn't always get her son or brother or somebody to drive her then write a the employer had no responsibility under the statu at night she was never scheduled to start after five so there was never a question that she could take a there but she had to walk home well we have a question if you can get there and search as i said although you were not impressed with the argument she always got there she always had a family member who could get her there with regard to whether or not there's an obligation to reasonably accommodate i think that's where really the my argument and the plaintiff in the suit argument greatly diverge is the question becomes what is the employer's obligation that it's because the barrier to the employee's ability the war didn't exist inside the workplace then the employer has no control but the to set inside to work voice so how can we when you can you tell us why we should agree with the district court that it doesn't cover well your honor if you look at i think this is where the district court was getting this from if you look at the regulations the regulations interpreted a t a i say there combinations are directed at it allowing an employee to perform the essential functions of their job and as we've already said our obligation begins assertions which the district court accepted but if that were actually the limit of the statute why would there be a discussion of shift changes in to address this issue with the child versus united airlines case out of the seventh circuit i believe it was in that case that of an individual with a mental impairment she had a problem with regard to billy with epilepsy and she needed to get solid sleep consistent sleep the consistent time or her condition got worse therefore she wanted to consistently be on days because she said if she was on nights or if she was switching back and forth between days and nights it would allow not allow her to do her job it also would make her condition get worse and to me that's exactly where that the shift accommodation issue goes i don't understand your answer well if this shift accommodation can be done by somebody inside the saying if she had thought to say you know what i work so much better in the light because artificial light with one and only one eye that gives me a hard time so i'd really rather be in the store during daylight hours where there's more natural light coming in the store works better for me that that would make all the difference in your argument right well your honor i think to a quick answer is probably yes but but if i could address a couple of issues there one is that obviously the parties in need to be engaging in the reasonable accommodation interactive process in good faith and that would obviously be based on this record that would not be an accurate representation i'm not i'm not suggesting that she should make something up i'm posing fewer counter factual perhaps maybe it is factual but because i don't know because the case it's over at this point but your by your reading of that giles example and i think that there was an intent that there would be a back and forth because like i said there was there are two conversations there was a scheduled meeting with the union representative and you know once the union representative gets involved that is supposed to be  testimony i mean if we have to take the facts in the light most favorable to the plaintiff i guess we have to accept that although it is hearsay well but you didn't put anybody on to say the contrary did you know we didn't and resume a bully if it were to go to trial the union rep could be put on the stand right absolutely ok now let's go back to the judge jordan's hypothetical about a day like i mean the employers obligation is to make a reasonable accommodation that the employer can if it were a building in which one room had daylight and another room didn't and all that the pla was asking was to go to the room move her desk to the room where there was daylight wouldn't that would be a request for a reasonable accommodation that could be depending on other factors of course ok but if it were a building that was all didn't have any wyndham's like this building some parts of this building but not really then it wouldn't be reasonable to expect the employer to provide a lifestyle the window c your client never said as i understand it we cannot accomplish cannot give her a right that the the employer actually did say that it would be difficult based upon the schedules of other employees we did we were in a situation with a collective bargaining agreement mrs caldwell herself had some an availability due to her personal commitments it may have been difficult to get difficult but not impossible have not taken the let's let's assume that this is not a problem that developed after ms call well i'd come to work but that she were i mean we don't say ms caldwell  can't work at nights because of my disability i have an eye condition makes it impossible for me to get here at night other than that i'm good to go there's a lot permit rite aid cannot do in light of disability isn't that right agreed although i don't i don't see a difference from an employer's point of view if you're still asking for an accommodation that is well outside the workplace well are you can't do it any other time is it is the distinction i get well i guess maybe they have your answer your house or is it's the front door period right cuz once she's there if she's good to go however if she got if she said you know what i need to work in a sunny place then you would have to hire at seems to be where you're going which strikes me frankly as a curious thing that if that you would be required to hire somebody who said i'm i'm even more disabled because like i got to have help in the workplace so it'll be more expensive for you more of a challenge for you but you gotta hire me but you're the same person with a little less of a disability you can say no because it doesn't it doesn't impact what happens once you walk in the gate if i understood your argument correctly i think so your honor i think that the real question for the employer is what where is does your obligation begin and while the accommodation is exactly the same in the end right you combination would be you can work daytime hours i think that's correct i think the question is are we going to sit here and substantially expand the obligation an employer has now on top of everything else i have to figure out if you can get to and from work so her big mistake was not being disabled enough right they all have to get if you're right and then and we have to if we have to reverse on the failure to accommodate the district court didn't handle or didn't handle the way you wanted these other things that all goes back and the district court has to decide who the jury has to decide you still you have not given up your retaliates claim your workplace discrimination it's every right well i've seen some of your opinions that you only louse some claims data like back down so well you're telling me that if you were like that's the process you know if you get one reversal on one claim everything goes back well if to the extent present everything a whole different if it's still open if it's still open i can present anything because then it's a jury that decide this so i can bring the new guy in or whatever but there is a court said i think you told us could i just say one thing only because i think it to say anything he did all i wanted to say is that the shift change is what was in control that the him that right had and it accommodated other people like a college student they were able to work with the college students so how could second circuit just that they can read it ok thank you we can read three other cases frank thank you two minutes is two minutes ok thank you i'm going to have to clear the courtroom of everybody because because judge wise is in pittsburgh we're going to do our conferencing in the courtroom rather than in chambers michael to and you judge a thank you very much