dave suggested if not outright amid that they fired mr philips because of his medical leave and two timer people swapping one almost for terminations decision for another not you know the case should go to the jury or not i have to make those decisions all the time so i have this here that and they first two thousand and thirteen he took his first leave of absence to july twenty seventh two thousand and thirteen at which time he had exhausted his f a leave on july thirty first two thousand and thirteen time or negate the point of a packet to assist them in getting for the leave so they try to accommodate his need to have an extended period of time when he would not be coming back to work on august eighth the plate of requests that it was granted for the leave until september first two thousand and thirteen so certainly he was accommodated every which way up to that point instead of returning to work he submitted a doctor's note to request an additional leave for another month through october one two thousand and thirty which was granted and i probably seventh two thousand and thirteen he did return to work and he worked till november twelfth about a month then he requested another leave which was granted again until january twenty fourth two thousand and fourteen so so far  his employer was just accommodating him every which way whenever he requested additional leaks the look what happened on january twenty fourth he didn't return to work on feb sixth two thousand and fourteen requests the yet another leave to march tenth two thousand and fourteen and then he was terminated february twenty first because of his frequent absences unpredictable unreliable expected dates of return and that's basically the employees s enough when do you draw a line here i mean certainly you would not argue that the employer had the obligation under the law to continue to accommodate and in finale and it seems that the  and the courts do sometimes conflate the federal standard with the california standard which is a lot higher now under california law there's only one standard and it's under a burden did mr leave of absence cause undue burden for the company now for the small mom and mom and pop shop it's understandable that an employee that is necessary for the business i mean if he's not there the bins can't operate let me ask you this i'm just concerned about how call in or they have to find out where he is if it's not an undue burden this goes on and infinite is that your understanding of the law no you are but i do disagree with the facts that he didn't show up when i was supposed to show up because he said and there's a huge credibility issue here because but then evidence has shown the she didn't even tell him that he was terminated she stayed on the record that i sent him a writing only matter what did he do i think on the lease what he there's a mutual obligation to engage in the interactive process there were two younger employees one was on continuous medical leave for you and a half a year and a half and time are people in the same manager testify that he's not in danger of terminations and he's not in change or being bored at all jury has to decide what if the jury with to decide that he did not show up and that he did not read the military effort to try to get an extended leave of absence for the fourth time could they find in his favor nonetheless  even if the time or it could have hired other people that there was no problem with them getting employers employees to play the role of the jury find out that mr felos dropped the ball he the employee of a huge corporation like armor he's the one drop the ball fourth when and how he engaged in his obligation to this charges responsibility to interactively deal with his employer engage in the interactive process factually how we did it he submitted his and then he was discharged february he wanted to go back to work on march tenth right right so he notified time or cable that he would be coming back to work on jan he's entitled to do that because a doctor's note was supposedly said it is three days after he was supposed to return to of told him i need an additional two weeks to march tenth and here's my doctor's know and that's when they fired up but i guess i just don't understand he was supposed to come back on january twenty fourth and nothing asked to notify him about his status he was not due to report back he was due to notify them about it on jan twenty fifth crocker about whether he can come back or when he needs additional time to what happened on january twenty fourth  the day in which he was to notify them of his status graduate or well there is a difference there's a difference because i think that's the day that he plans to go to work and he didn't receiving a docking there from him just give me the best record reference you have if you have it now you can submit it i guess afterwards being confused what happened on january twenty fourth and the area i will be happy to start there your honor he has requested accommodation he sent a note in december requesting an accommodation to be out until january fourth is saturday for d s ours these directionless representative saturday is a work day i want to address his workday argument because even the numbers don't add up on that but saturday is now that self a work day it's one of the probably the most lucrative day for them so they gave in the it is an undisputed fact that the plaintiffs admitted to in response to our statement of under the facts facts thirty five and thirty six established that the accommodation requested with an extension of leave until january twenty fourth and that's in the supplemental excerpts of the record as zero zero zero forty eight absolutely undisputed fact that the accommodation he requested in december was an extension to january twenty fourth to answer your question judge block what happened on january twenty fourth saturday he claims that that was a saturday which is a work day for mr villalobos again because that's one of the most lucrative days to knock on doors and sell cable t v because everybody is home or most people what happened is they didn't hear from him at all  even accepting the plaintiff's argument that he contacted the next workday and even expecting ok if saturday's not a work day that would be monday january twenty sixth not the twenty eighth the kno did we wondered where he was he didn't show up you know your honor that's very important and if we'd wanted to fire him if they were chomping at the bit to fire him because of a disability they could have fired him when he didn't return from work and they didn't hear from him when they heard from him was february sixth the note itself was not even written until january twenty eighth which is four days after the return date of january twenty fourth and certainly not a monday the note was written on january twenty eighth incidentally what that note says is that his symptoms had become worse and that there was essentially no change since the prior note since the doctor sent on july twenty second of two thousand d minute ago that that note that doctor's note i presume was written on the twenty eighth it was written on the twenty eighth your honor not the twenty fourth not the next it could have been given us to it to us the next business day because if even if you consider monday  continue to accommodate this and this is very important point of snaring narrative makes it sound like time warner cable refused to accommodate a two week request for a leave of absence that's absolutely defies reality what we had here is a nine month process we're this is a company that did it right for nine months they accommodated every single extent and request every single leave request as you observe your honor until finally they're having they're getting these these i'm going to come to work on this day not once did he come back on the day he said he would and that's important to them they're planning for that the testimony was there a man short they're trying to cover their territory for his team where there's the twenty fourth of the twenty's you know your honor because even if they do received it on the twenty fourth the law is very clear that they would not be required to continue to accommodate as a matter of law that's not a reasonable accommodation and i'd like to address that issue why my colleague's characterization of the law fee hot differ significantly from the the california courts have repeatedly said that the two track each other closely and most regards but with under the feet just like idea the threshold requirement to even be protected by the disability provisions of the fee is to prove that you are qualified individual that burden of proof lies solely with the point if that's california supreme clear that the definition of a qualified individual as the court knows is someone who can do the job with or without a reasonable accommodation here the accommodation he was requesting was not to work the only one that was on the table here because this wasn't a lifting restriction it wasn't a standing restriction it was because his anxiety and depression and insomnia was as the doctor said  his his simpson poor even worsening at this time he couldn't work at all it was no work at all that was what the restriction was so because the vast in the context of this case it threw up users does have to be physical restrictions or again it's not a case where he could work at home because here attendance is an essential function because you're selling door to door you have to be out in the field selling door to door s employer has a responsibility as well the employee could say let's say that i talk about this you can't do this they want to do it that maybe you can do some other work none of that was engaged in the body the polity that the talking about other work was not engaged in because it's the company's understanding from the notes that he could not work at all and can't sleep he's having o c d symptoms but if i may your honor with the interactive process on the you know the issue here on all of his disability claims all three of his or four of his disability theories the threshold issue that he can't get past is the qualified individual issue he it is california supreme court law that he has to prove he's a qualified individual which means he has to prove that was true there would never be summary judgment on the qualified and an individual basis in any of these cases and we've cited cases in our brief where courts have repeatedly held repeatedly that where an employer is here accommodates an employee with reasonable leaves of  e to allow the employee to get better but those leaves that since turned out not to be effective in that regard they don't make the employee better the employer as a matter of law is not required to then further leads to this in this employee was unable to work all but for a brief five week period over nine months there is no case out there and point of certainly hasn't signed one that suggests that can be a reasonable accommodation to require an employer to continue this that reads the qualified individual requirement right out of the statute if you accept his argument because a qualified individual is one who can do that essential functions of a job here that the trial of the doctor can test if i would he could come back to work what his disability is they could talk about whether they engage the interactive process there's a whole range could be explored here and all you have and i i sympathize with that you say look enough is enough you know we did it for diamonds when i could do it again for another three months we've had to draw a line if you're out of a saying and if the jury was allowed to find that someone who can't work at all for nine months and not only nine months but it's a cycle he never made any of his return dates and if you look at the substance of the note there was no reason for the company to believe that he would return on on march tenth because his symptoms were actually getting worse not better there was no reason for the company to believe that the cycle would break if you're going to say that in it that a company has to go to a actual evidence offered by the company of the burden that a leave of absence is causing thank you your honor and one thing i would like to clear up the undue burden is not the only standard the first thing as the district court found as an additional reason for granting summary judgment the district court did find there was undue burden even if you could get past this or court finding that there was no reasonable accommodation failure here that he's not qualified individual the evidence was these unpredictable leaves of absence where he was giving us return dates there are a man down there man short in covering their territory and they're not replacing him because they're planning ok he's coming back on this date so the company's planning around him coming back on september first then they're planning on him coming back around on on october first then he goes out again in november and they're planning they don't know when he's coming back but then they plan for the twenty fourth and they keep getting the carpet jerked out from under their have to cover their territory a man short that was the undue burden that was the testimony of the manager who was the decision maker mr simons and the i would note that in the district court and here the plaintiff has not really addressed the district court's analysis on that instead with the point if it did for the undue burden argument was created a straw man claimed that the undue burden was that the manager and supervisor wanted to have more sales and make more money for themselves and their bonuses neither the manager nor the supervisor testified that way and of course we've never articulated that is the undue burden but what the end of burden was with what i just explained to your honor the district court agreed with that point it was never actually attacked the argument or the analysis of the district court has arguably waived the issue because of that but most importantly i would say you don't even get to undo burden here because the there's the accommodation requested as a matter of all it's not reasonable to force a company to stay in this cycle or to go to a try to a jury trial on it is to right out of the statute the requirement that someone be a qualified individual who can do the essential functions what this would do is say that you can continue to give notes which not help you do your central functions excuse which excuse the essential functions that's what all of these leaves of construction it would bear that result because it says you have to be able to perform the essential functions with or without a reasonable accommodation when you get to this nine month cycle which based on the note in the in the substance of the note although he said he would come back on the tenth it certainly doesn't sound like this is going to be any more reliable than the other ones but imo it's not as if they didn't have they went above and beyond this company did it right they didn't have to put up with it for nine months and they told him when they extended his lead to october first this is also in the end these disputed facts which they've agreed to they told them that they might not be able to accommodate further extensions that they would have to evaluate it they did evaluate it and they did extend but they told him  in december when he asked for the january twenty fourth they told him again we might not be able to come to a further extensions will have to evaluate it when they got his note on the six they evaluated and said at that point is your honor says enough is enough we can't plan around  anymore and we need to move forward i think i have your point and what i would say gentlemen is that that because a qualified individual issue which he cannot establish as a matter of law he can establish it that takes care of all of  disability claims his age claim is there the prima facia element of performing the job satisfactorily at the time it just charges the district court found that's just not there even if you got beyond that although he said he  evidence of a younger compared to or he didn't all of those are mischaracterizations the record that's very clearly laid out in our response brief beckett also used because he's an older person he's slow and can't be as productive as young people but the testimony that i read said that the older people aboard productive because while they cannot get as many doors the more affected because their age and maturity and they are actually of that a sales people decided that you just gave a cryptic part of your honor we put it that isn't a chart in our brief we never said that he was older and slower and could knock on him any doors that's that's one of his allegations but that what the testimony actually says that's what we pointed out the testimony doesn't say that the testimony says exactly what your honor said that the older people are better salespeople for the community of jurors to decide for the peers to set the standard for what a company of that size can do you cannot go he should be given leaves from either just for ever no your honor and i don't think any reasonable juror in our system supervisors one who's in this late twenty's early twenty's had a leave of absence for year and a half they did not want him and they testified on the record that he is not in danger of being terminated another one who's ten years younger than mr avila goes again same job duties same job title same supervisor he wasn't fired he voluntarily quit didn't see that coming