you your honor this is an important case at an important time in our country's workplace the federal and state laws which provide for rights to disabled employees in our nation's workforce include the americans with disabilities act the u d a in the minnesota human rights act these laws guarantee that employees will not be subject to discrimination in employment because of their disabilities that if the employees require reasonable accommodation to overcome impairments to enable them to perform the essential functions of their position the employees will provide such reasonable accommodation that employers will will work with employers engage in an interactive dialogue with employers to determine the means of overcoming impairments to perform the essential functions of the position and that employees will not be discriminated against or retaliated against should they report or complain about discrimination or perceived discrimination in their employment mr brown course complaint in th rather he's he's also not asking the court to expand the reach of the eighty eight or the construction of of various of its terms of the defined terms of the protections of the at what he is merely asking is that whereas here there are in my judgment and i say this with respect that this employer's actions in response to this employee's request for reasonable accommodation and interactive dialogue can be as a matter of law the standard for employers to follow in response to employees requests such as this in my judgment this is not how this delicate law this important law is supposed to work now in mid april of two thousand and fourteen mr bronckhorst done a fifteen year employee of  was performing his job satisfactorily randomly contract in a horrific bacterial disease which produced acute flesh eating bacteria which resulted in acute organ failure and produced and still produces significant residual pain movement impairments and restrictions and mobility impairments his life has not been the same since that day he has been disabled since that day and he has not worked a day since that day notwithstanding his earnest efforts to do so and his desire to do so at in are brief and pages ten through thirteen of our reply brief we've we've outlined the sequence of events which occurred which we believe are important to the whole story not a selective exception of the factual record but as a part of the whole factual record which we believe would be important to a reasonable person in deciding whether or not the parties met their respective obligations given their respective rights and obligations under the under the act mr bronckhorst at the time was performing his job well had done so for fifteen years when his disability occurred he was promised by his supervisor that his job will be here for you when you need it he was repeatedly informed through the date of his terminations that he was being granted leave as a reasonable accommodation as you said on these pages of the reply brief that you mention us time after time  almost bent over backwards to accommodate you he did so with respect to leave your honor with respect to leave time but leave time seven circuit might suggest leave time is not a form of reasonable accommodation or at least multimode believe beyond f m alay is not really is not really really a factor and there are no running claim that these other things were falsely represented right because i think that that goes to the fact that as long as he stayed out of work the city was accommodating the leave as a reasonable accommodation it stated so but when it came back to overcoming the imp leave did not do that leave didn't help him perform the essential functions of his job or to overcome the pain mobility we d your finger think on the key issue because it says the bottom of page twelve your brief working remotely from your home will not allow you to perform the essential functions of your position nor is it practical nor is it a practice that the city is permitted  address that because i think that is the core of the case that is the city's contention but there is a contrary factual record about that and mr brown horse himself testified as to what his duties were what his essential functions were and he papers most of his job was computer and desk work or phone work and could be done remotely at least for a period time no we're not contending that this should have been a lifetime accommodation we are suggesting though with respect to his gradual transition back into the workplace it should have been tried it should have been considered and especially where the city has testified during depositions that they couldn't say that they couldn't do it in other words it was doable it was a double negative in terms of how it was dated but the result of which is that it was doable  would not cause undue hardship at least for a period of time but that's that's the part of the magic of the interactive dialogue is that it's supposed to be flexible it's supposed to be informal and it's supposed to be interactive not just launch a one time take it or leave it offer of accommodation whether or not it even hits the impairments and i suggest that the city's one time take it or leave it offer of twenty eight days of part time work at a specific location during specific governors during specific days and i thought that your climb admitted that working from home would not allow him to do some of the i t functions and some of the paper processing and some of the other items i  quite well it was a part it was a part of the record and what he was saying by that judge is that the way that things were set up before some things that were on paper in really could have been scanned and sent to him for example the checks or getting the checks to him and back from him or time when falso by scanning it you get the point yes that's right but and with respect to an aspect of the job that he had been performing even though it was not in his job description at the time his lead began an aspect of it was that he was the computer guy at the when the computers would come he would order the computers he could do that by phone or by by by other means didn't require a physical presence but he would be the guy that hooked them up the person to whom his job functions were assigned during his leave did not perform those functions those were outsourced to a third party vendor both during his disability and after he was terminated so they were not in his is you know it's interesting too that while he was on leave his  description was was a revised at the at the direction of the city administrator and now included those duties even though they weren't going to perform by someone else i mean what your client said as to why you wouldn't accept the why was that necessary in his view why couldn't he work twenty eight days four hours a day at employment say it's because of his lack of mobility because of his movement restrictions and because of the pain and each day involved morphine and oxy coat on he had he would experience pain flashes where he said in testimony that his office was not configured to allow him to raise his feet when those pain flashes which are unpredictable and a those occurred he would need to be able to move about to move his legs too to wiggle his toes included but also it is complicated for a disabled person to get to work when he has a wisconsin resident living in western wisconsin working in eastern minnesota so the mobility services and so forth which he was just beginning to explore it's calm it's difficult for him to literally get to work he can't walk can't stand can only do so for very short periods of time but even his doctor there are two aspects of accommodation that you requested he had requested one hundred twenty days of part time work with the ability to work from home his doctor and that  addressing the functional limitations as he saw them the doctor had also submitted on his behalf a part time four hours per day for two months the city only granted because the doctor was addressing the medical issues the doctor was very concerned about him going back to work given the obviously the issues in the problems in the in the physical impairments which he suffered but the city didn't grant either one of those it didn't do a study didn't do an analysis in fact it said it was doable it could have done them it just said no it gave him a one time take it or leave it twenty eight twenty days four hours a day specific hours of a specific days at a specific specific location mr bronckhorst was concerned that that was not going to be sufficient  o be sufficient to enable him to overcome the three impairments which are a matter of record that would be impeding him in his ability to perform and central functions i see this case in some ways not to have offered reasonable accommodation to an applicant because it had policies with respect to income verification that that had to be provided the court in that case deemed that that  reasonable accommodations offered by the department manager did not allow it did not permit the fostering or the achieving of the goal of the fair housing act this is an analogous case but in the employment area because the a reasonable accommodation should be an assistance to get past the impairments to deal with the impairments that are preventing an employee from performing the essential functions of the position now again we're not saying that it should have been a for the rest of client a lifetime appointment well we're talking well first of all we have reasonable accommodation indirect dialogue disability retaliation and then whether there is evidence a pretext a statement of what issue would be to the jury that's just a laundry list no i understand i bastion was what would be the issue presented to the jury if we ruled in your favor whether or not given the facts and the inferences which the jury may draw from the facts permitted a conclusion that reasonable accommodation effective reasonable accommodation was not offered or provided by the employer to the employee once the employee of course raises the issues with respect to the impairments a need for accommodation is the employer ers obligation to ensure that the offered  notion that he was entitled to the accommodation that he chose so that any failure to give it to him was a failure to accommodate and to engage in an interactive process and w discrimination in retaliation but that eighty eight requires employers to reasonably accommodate disabled employees it does not entitle a disabled person to the job or the job conditions of his choosing in this case the city offered the plaintiff a reasonable accommodation one that was importantly consistent and based consistent with and based on his doctor's  limitations of about his return to work the doctor but he demanded a different to commendation than what the doctor said was necessary the doctor did not say that he needed to work from home or that he could not return to work but nevertheless the plaintiff refused to return to work unless he got the accommodation that he wanted which was to work from  carefully what the doctor said the doctor said part time the doctor say four hours a day yes that's on house to the doctor specifically say the doctor filled out not much but the doctor filled out a workability report  d he said he was limited the plate was limited to four hours a day and then there were some lifting and standing restrictions the job it's undisputed was a desk job and there was also he couldn't climb stairs restriction but there were no scares the building was eighty accessible so so that the limits that the doctor placed on his return to work is what the city based their agreement to allow him to return to work working four hours a day this graduated return to work that he requested now the plaintiff s that the district court erred in concluding a doctor say sixty days the doctor did not say sixty days what he said was he can return to work on march eighteenth until that these restrictions were from march eighteenth which is when he filled out the workability report and made eighteen that's the two that's sixty to sixty days excuse me so he didn't say sixty days from whenever he comes back the problem is plaintive did not return to work after his doctor issue that returned to work workability report he didn't return to work until the city said you have to come back he wasn't coming back under the conditions that  will give you this four hour limitation until may eighteenth and dan will need you to give us a new medical certification from the doctor to see him the letter from the city says to see whether this needs to continue or you can increase your hours or even come back full time relies on looking what at what the city would not do and not it what the city did to establish pre primary fixed case of disability discrimination for failure to accommodate the plaintiff has to show that he's a person with a disability which was assumed for the purposes of summary judgment that a reasonable accommodation was possible and that the city failed to reasonably accommodate him and there was not it's not because there was burden now here the undisputed evidence showed that he asked for to leave as a reasonable accommodation several times the city gave it to him for many many months  beyond his our family even after that for an additional i believe six or seven months and that he asked for based on his doctor's work ability to report the reasonable accommodation of working for  only four hours per day for a period of time the city granted that the undisputed evidence showed that there was a reasonable accommodation in the city gave it to him now he  violation of the city's duty to reasonably accommodate to not let him work from home this realized this argument relies on the e e o c guidance but the plaintiff doesn't meet the requirements for application of that guidance primarily needed even plaintiff testified he could have performed and it's at j a three forty two of his deposition testimony i he was asked by need can you perform could you have performed all of these functions absolutely hall was your did your disability prevent you from doing that he said no but working from home would have been easier not that it was necessary but that it would have been easier fact he also testified when the city said you know we want you to come back to work now starting in december of two thousand and fourteen he was looking out ways to get to work it's not the city's obligation to get him to work first of all but but he was looking at metro mobility and the problem was not that the city was failing to accommodate him it's that because he lived in a different state he was having problems that he was still looking at resolving getting the two agencies governmental agencies to work together to get him there so so  therefore it's not doesn't count as a need for an accommodation you mean because the problem isn't caused i don't understand the are great i mean he's saying because i have a disability because i live where i do live i can't get transportation to work so i work from home and you say well that's because you live wisconsin that's not our problem right no no  you're but but i would submit it's not the city's obligation to get him to work there's a lot of reasons why somebody might not be able to get to work that have nothing to do with a disability to drive to doctor did not say he couldn't drive his doctor didn't say he had to work from home or couldn't get to work his doctor said he could work four hours a day at the city hall was the assumption because the job description says that was given to the doctor for purposes of his evaluation described the work environment of the office so that's that's one thing but the other thing is at the time that he was thinking about coming back to work  before he refused to he was looking at ways to resolve that in it just to have never banned conclude so he wasn't saying i can't get into work yet he was saying he's working on trying to get these two agencies to work to get him there so he's there there was no conclusive evidence that he could not have gotten to work he testified the way that he got around during that time was he was getting rights from family members when he needed it so so it wasn't necessary he didn't need to work from home at least based on reasonable based on his own testimony he said he was keep his disability did not prevent him from doing though from performing the duties of the job absolutely hall what about the question it he said it wouldn't have been could we have done it we couldn't he said a double negative or something like it couldn't not be done or something in other words what he was saying was we it would have been impossible but it would not have been reasonable because there were many essential functions of his job that he couldn't do from home the city administrator testified on the same page of his testimony where he says he's asked basically was it possible and he said well it might have been possible but it would have been reasonable he had to interact with people he had to cover for people he had to interact with the public and other employees he had to be supervised and the last that  not obligated to reassign existing workers to us just in the performance of essential duties so to the extent he would have needed somebody to come to he testified he would have needed somebody to come by his house before and after work no no i think you're out of the question would be did this city provide a reasonable accommodation and then there would be right and then there would be some ground i would say would be  as the limitations that i just spoke of in the fellowship case where you don't have to assign other people to do your job or reallocate duties so so i thought what the district court did in this case was through the doctors workability report and the city gave it to him in fact i want to point out one one of them saying quick before my time in that regard in the latter's that his attorney was sending back and forth starting in like february until the time of his terminations the where he was saying you're not gauging in the interactive process you're not talking to us he can't he needs to work from home he said the basis for that assertion is the doctor's workability report but the doctor's workability report doesn't say that it says it lists a four hour limitation and other restrictions on lifting and standing that could have been made were being met by the there there didn't need to be additional accommodation so even the plaintiff was relying on what the doctor said so it would be reasonable for the city to accommodate the only accommodation request that the doctor and the plaintiff said was necessary and another thing in that regard because the plaintiffs never said during any of th time he said look at the doctor's note for what my limitations are but he never said i can't try if i can't get there he didn't say that before his terminations he said the reason review j eighty two sixty one two three it is my april fourteenth two thousand and fifteen jot them down yes sorry ga to sixty one through three it is a three page letter which complains that four complaints about the city not engaging in interactive dialogue not providing reasonable accommodation which was ineffective you did not say look at the doctor's workability report with respect and that the request for accommodation is based on that because it wasn't accommodation was based both on the on functional limitations noted by mr mr brown course and the doctor's medical limitations and and so forth that were step now that he filled out at the request of the city to determine that he was in fact fit to return to work i just have to briefly note e e o c guidance eighteen which provides that if an employee is granted leave as a reasonable accommodation employee is to entitle to return to the position unless it would impose undue hardship also guidance thirty four that the employer must consider the modification of its rules or policies with respect to where work is performed to consider remote work if it would be effective and if it would not produce under hardship mr brown course testified that it would be effective and mr johnson of the city instead if i did it what would not be undue hardship otherwise what good is the leave if the employers job is changed or eliminated there is no limitation here by the way his job