weber before i represent was before the court or to failure to accommodate cases under the broadly referred to as disability discrimination statutes including the americans with disabilities act the rehabilitation act in the texas commission on human rights  there is one of commendation case that occurred or failure to accommodate case that occurred in two thousand and fifteen another that occurred in two thousand and sixteen because the two thousand and sixteen accomodate resulted in his terminations unless the court trains he also served as a union representative in various times throughout his royal road that was actually a separately paid job but the events that bring us here today are mr weber had a seizure on april  th of two thousand and fifteen that resulted in seeing are all just in medical care and pursuant to the doctor's advice the company policy was withheld from service for ninety days and he did he had an excessive absenteeism problem prior to the seizure prior to that april th seizure i would say that because his role as a union representative which was paid separately he was required to miss a lot of work and of course a lot of that pre dates well matters a predates the a b a and other discrimination laws but yes he did have absences and ultimately i think where like and up with this argument is the issue is what is an excused absence and i would submit that it is true that mr weber had absences he was granted what's called managerial leniency in part because his union duties require him not to work in his train dispatcher capacity i hope that answers your question but to the extent that there were a vast number of on excused absences i would not agree that there was a history of excessive absently and it's true and i think the district court was persuaded and certainly be n s f has made that argument that he has  when it comes to attendance both what's relevant are the five absences that resulted in his discipline and terminations that occurred in two thousand and fifteen and i would submit those are the absences four of the five were directly related to his seizure two were doctors visits with his neurologist and two were times when he did not feel he can work because of lack of sleep that he felt that he would not have been safe to work those two days the th day for what it's worth is was for a colonoscopy so a medical procedure but not one we would submit is related to the disability so we're focusing on the four absences that resulted in his determination after a long road  concept that it's unlimited leave and i would be the st one to agree that reasonable accommodation although it hinges on undue hardship it can never be indefinite or on extended but the eighty itself and the interactive process and visions communication going back and forth so mr weber was very specific about asking his supervisors for permission to do for the doctors appointments and those of course are forseeable scheduled events he was required to see the neurologist twice a approval with respect to the other two those were not requested in advance because they're on forseeable and he did not know you know in advance that he was not going to get enough sleep such that he felt that he was at risk based on his role  didn't have medical leave for the seat exhausted it if i remember he was going to begin to have it again by april so is it relevant to your legal position or b n s f says that the record may or may not show that he refused to use his personal and vacation time because he just had to bridge a little bit of time and he had been warned that ok we have new management and we just can't be as flexible only not as we've been in the past so as i understand it that's what he was used to and they say no so it's to me not like a carmona situation he's told watch out he asks once they say ok i'm in am i right it is correct that he had exhausted his f n l a leave when he was off work for the ninety days in two thousand and fifteen april th of july th so that's true and it's also true that he was informed by b s f that he would be eligible for f n l a again in april of two thousand and sixteen that moved in various times in the record but i think that's where it landed it's also clear that mr pectoral fast tracked his discipline in order to terminate him before he would scheduler that that he had a vacation time that he could use an r point or position on that is there is a difference between paid leave and unpaid leave and vacation which is you know a collectively bargain the right to a certain number of times and presumably vacation serves the purpose of regenerating and not necessarily to see a doctor now i you know i think in retrospect i think even mr weber would agree that that would have been something to reconsider but it doesn't divert from the point of should the four absences the unpaid and protected leave for a medical condition and just to go to h r i guess just thinking sort of that mysteriously it may seem harsh but he was told they were going to have to be harsh so here are you still think intermittent medical leave is a legal reasonable accommodation for employee period of time that goes to the un you hardship and courts with respect to continuous leave are all over the board depending upon the size of the employer and other circumstances right but with respect to intermittent leave i'm not aware of any any type of a bright line nor do i think that one could be set because for a smaller employer their answer might be we can't do it at all st of all christy intermittent leave case that you've you've got mean you may have put in your brief just tell me which one you would point to is one that we should adopt oh sure well in the th circuit carmona case is the one that i'm familiar with that addresses the principle of intermittent leave and how it can interact like better but there you know i'm going to interrupt you because carmona it was built around southwest saying you know this is fine we've got a lot of replacements but the records pretty clear he got told we don't really have too long now we've got now you've got to show up so that seems very distinguish oh i would agree with your honor except only the leaves that start in two thousand and fifteen are related to a disability if you hadn't had the seizure and he continued to have any number of absences i would agree with your honor completely but when it comes to an accommodation in the form of an intermittent leave and the fact that the n s f has an extra board which was the sole purpose is to cover those absences for vacations and disability or whatever f n alay i mean they have a you know it's any two hundred and forty seven operation is going to have  of absences for these triggering events and i would be the st to agree that if mr weber's absences because of a lack of sleep or not feeling well enough to work exceeded some reasonable amount then discipline would be appropriate i if i understand you correctly maybe we're talking about the two thousand and fifteen event when mr weber requested to be transferred to another position the a cd or assistant chief dispatcher position and if that's the case the testimony from barker about that position because mr weber was aware that pregnant just bashers and some other people with medical conditions had been allowed to work in those a c d positions for a short period of time because they are in the same craft now in the railroad industry transferred to other positions can be tricky if you have to give up your seniority and that kind of thing but with his assistant chief dispatcher position that's not the case in the hall we're going in we're going into a cd position is there anything in the know mr weber worked there a long time i think the best i can do to point in the record is where you have conversations with mr barker mr ruby and mr wyatt about those positions and there was never a response from a you're not all fired for that it was mr barker's position that none were available which he said that immediately without looking into it and mr rubio mr wyatt had said that that surprised them as well that there weren't some available so to be candid i'm not aware of any you know just gushing between mr weber and the railroad about he give me a job description can you do it can you not do it it was always about whether you know there was an opening ok well that's my nd question is is there anything sort of in the record that  kind of shows whether and a cd position was vacant when weber requested reassignment in twenty five there is not anything in the form of a good job posting and what makes this situation different than other transfer reassignment cases is sometimes employers are human resources to go on line and say here's a position i found that's vacant and i want to apply for permanently transfer there what's different here is that this was a short term accommodation almost like in the worker's comp setting which this is not they might have somebody count bolts or do some paperwork until they heal from a surgery or something it's more of a short term position so to answer your question your honor there's definitely nothing i've seen in the record as to a job posting or vacancy what we have is the record nine  and forty three through nine hundred and forty six a discussion of whether those jobs were available and at least mr ruby and mr wyatt's response that surprised them that mr barker wasn't willing to put him into that a c d position for the under the we have a no do you have this argument that the federal four years statute applies but are there any any of our cases from our circuit that support that argument not with respect to the rehabilitation act i imagine there are some cases that applied for your residual statute of limitations this is a bit of a nuance and perhaps i'm guilty of my legislative history background but the our case in the rd circuit was one that i argued and had discovered t created a new cause of action which triggers twenty nine dollars u s c six hundred and fifty eight dollars so it's a it's such a nuanced actions and you know it's just such an argument because it doesn't come up that often but i'm not aware of any other anything in the th circuit or for that matter anything outside of only the rd circuit is the only thing i'm aware of that would apply that statute as opposed to somewhere else and that's unique to that cause i mean i'm not arguing that the four year applies to any other cause of action under the rehabilitation rather than creating a new position for him they see the physician nd claim arose in two thousand and sixteen when mr weber says that the company violated its obligations when it refused to what we believe should be characterized as going on limited and unpredictable amounts of absences any time he subjectively felt like he had not got enough sleep the previous evening each of those gripped the reason i point out that these are both failure to accommodate cases as opposed to other types of claims is that a number of the arguments that mr weber certainly has included in his brief has touched on during his opening presentation relate to differential treatment type issues that are only relevant to discrimination or retaliation claims that he raised before the district court that are not on appeal to this court and so those issues at the extent the court takes a look at them we don't think they're supported by the record but we think it's an ambiguous that they do not apply to the question of did the company have an obligation to accommodate mr weber and can you jane answered again when i called before now to spirit issue because looking at the cases about absenteeism they're usually pretty egregious employees dania home and all that who am i wrong to sort of see this narrative is as unusual the guy's been with your company for thirty years and then he no one disputes the as a stroke and we have four medical to certainly medical to last related to the stroke all before he's going to begin to get f m l a leave again it just it may be wrong to think we're a little bit of more lenient the medically this is a little unusual to me that they wouldn't accommodate undisputed true doctor's appointments relating to someone who's having epileptic seizure yes you are and i would i would hesitate to tell your honor that you're wrong but that i will say that's not the way that we would frame that argument we don't think that's the way it should be absences when mr weber says that he he needed these accommodations which identified as being able to not come to work any time his doctor told him he needed doctor's appointment and then in addition any time he subject y felt like he had not got enough sleep now in retrospect we know that those absences into taking just five days over this relevant three month period january february and march of two thousand and sixteen my available paid leave i need you to give me some additional unpaid leave that might on its face be a reasonable accommodation and is being s f wanted to then say well we're not going to let you have that accommodation it likely would have an obligation to present some sort of undue hardship analysis or evidence that's not with this cases because mr weber did not come in and say i need five days off or two days off for any specific amount of time the only thing he's identified a is that this court and many others have consistently held that regular and predict double attendance is an essential function of most employees jobs and here there is no question that was an essential function  so this is not one of the the extremely odd or unusual cases where there's a question about whether or not showing up for work regularly was an essential function it was so the question is the two thousand and sixteen claim could mr weber to form the that essential function we believe it's undisputed that he could not so what he's asking for here we believe should be analyzed as a request to remove an essential function from his position which is in other words let me be gone be absent whenever i feel like i haven't gotten enough sleep and that is just on its face not a reasonable accommodation and so because mr weber is not identified a reasonable accommodation you do not then move to the nd part of an analysis in terms of whether or not that would have been undue hardship or an undue burden employers get to define the job the job here was defined to have an essential function of regular attendance mr weather could not meet that requirement it's of his failure to accommodate claim  setting aside that issue i want to point out that there's nothing in the record that shows mr weber requested this sort of accommodation as he's now framed it as they are use it to the court he seems to primarily rely on a note that he says was from his doctor which he says gave him the ability to be off whenever he didn't have enough sleep the night before that note is in the record at six hundred and eighty one and when the court looks at that note we'll see if that's actually a note from his nurse practitioner and that no doesn't say anything at all about mr weber needing to be off work we're garlits of not enough sleep or any other reason the only thing it says is that when we have an employee who has seizures we recommend that the employee get good sleep hygiene because if he doesn't have good sleep hygiene that can result in an increased risk of seizures doesn't say anything at all about his need to be off work to saving all doubt if he doesn't get four hours of sleep or six hours of sleep or anything else just as he needs to maintain good sleep hygiene so that note that he gave to the company late in his employment does not support or even constitute requests for the type of accommodation he's asking here there's a nd problem with that no which is that the court will see it was dated april night i suspect mr hall will argue and perhaps the court might think well well isn't just telling the company that's not going to be there on certain days is that enough of a request to the company to at least trigger some sort of obligation for the in the interactive dialogue and to that i would say it is not at least not in these circumstances one of the absences as mr paul acknowledged it was for a colonoscopy which had nothing to do with his disability and so doesn't even attempt to argue that he should not have been disciplined for being gone that day two of them were for days when mr weber said that he could not come to work one of those who came to work and left and sam called off sick the other he just called that morning and said i'm laying off sick there  nothing i believe in the record that ties those to his disability to that relates his doctor's appointments there certainly were known to the company to be tied to his seizure issues so let's assume for a reason that that categorically an equivalent of an f m l a request would never be sufficient to trigger the interactive but i think the position you're describing now is more palatable in that it you know something unrelated to be i'm sleepy or whatever dialogue and the purpose of the interactive dialogue is to find out is there an accommodation that could allow this employee to do his job the company undisputedly did do that and each time mr weber would raise this issue the company would say if you want to take those days off here's how you need to do them you have paid leave that's available to you can use those days and they will not be held against you you can ply for a medical leave of absence and if that's approved those days are not held against you there were other options available mr weber he was said i'm not going to do that i'm going to take these days off i'm not going to use my paid leave i'm not going to apply for medical leave i just i don't want to do it i think if the doctor says i need to go to an appointment that's good enough and the problem mr weber is that by offering him that you can't just just insist on your own type of accommodation and ignore the attempts by the company to give you alternative accommodations the troubling case that we cited which is seven fifty six federal bendix five hundred and twenty one said that specifically that an employee can't quote leave work early and then sued his employer for being unreasonable that's what mr weber did here and that's an additional reason that his two thousand and sixteen claim ought to be affirmed the dismissal of it because the company in fact offered him these alternative combinations and he simply refused to take advantage of them of course the bigger picture is the one that i started with which is that you commutation is identifying here is an reasonable on its face i will say before i turn to two thousand and fifteen claim briefly there is this notion that mr weber thought or claims now that these leaves or these absences were somehow that's not supported by the record when you when you look at what what actually mr weber relies on for that assertion that that's not what it says it's the store brand new throughout his employment that these absences would be held against him unless he used certain types of lead that's why for example on page five hundred and sixty four of the record he said he wrote a letter to supervisor troy before his term nation and he said the fact that my own stubbornness is resulting in the determination of my job or the elimination my job really makes me sick i know that much of this is on me and that's because there was no confusion at the time that mr weber sought these absences were proved to be take a position consistently he knew they wouldn't be he just thought they ought to be absences that's what that number relates to the calendar that relates to to his absences is i can tell you where that is in the record but the he had not been a union representative for for a long enough period of time as a matter and the reason for that is that attendance is viewed on a twelve month rolling period and he had not been by the time january two thousand and sixteen rolls around a union showed that southwest flight attendants have nearly unlimited discretion in determining when and how often they want to work so the question of harm out of the court assumed for purposes of discussion that that essential that one of the essential functions was regular attendance then they looked at this policy as well as a unwritten policy that was even more lenient and said we think there's a fact issue as to whether this employer was meeting that essential function we don't have anything remotely similar here mr weber concedes that what he was doing was a violation of the policy this is not a policy that allows people like at the southwest case unlimited discretion in determining when and how often they want to work that's the entire weber ended up getting in trouble was that he that's what he wanted was to be able to take off whenever he saw fit but that was not consistent with the company's policy and that's why this case is we believe readily distinguish in the past leniency doesn't change that for a number of reasons including in the past mr weber was gone a lot for union business now that's the those are excused absences i think the key difference is that there was a new supervisor who showed up in two thousand and fourteen bobby pecl and he sighed mr pickles testimony and there's no dispute mr tackle said such going forward the rest are holding this to webber and these other employees to our was there anything else you'd like to add in the way a clear mission i will your honor the key distinction there is that if if this was a claim for failure to reassign the argument might have some force but this is not a claim for failure to reassign it's a claim for failure to accommodate and everyone said that the the issue is was a failure to accommodate claim available to the plaintiffs prior to nine result in two different sets of statutes of limitations for the rehabilitation that claim depending on whether or not the employee asked for assignment reassignment or he asked for some other type of commendation so here for example everyone agrees that workplace modifications were available for same claim which is failure to accommodate with two different sets of statutes of limitations we don't think that is a workable standard and we don't think that's supported by distorted the cases that we cited for the federal catch all i will say that i agree th court needs to reach that claim because the issue there it's under spews that for ninety days mr weber was unable to form the essential functions of his main position and that he asked the company can i be moved into an ac deep dish and as undisputed that his supervisor said you have no a c d of positions available in the store weber says i'm not claiming that that supervisor was lying and he did not do any discovery or present any evidence during the the case blow to show that the supervisor was lying and that's fatal to his two thousand and fifteen rehabilitation i claim be because as this court has repeatedly held in order to have a viable claim that you should have been transferred as an accommodation the employee has an affirmative obligation to come forward with that he did not think mr weber would be qualified during that period even present a cd physician because of how frequently he was absent so in other words the same failure to be able to work regularly was fatal for that position as well because ok i'd just like to begin where mr prude began by saying that intent is not relevant to the claim and while that's true that in a failure to accommodate case we do not have to prove intent that doesn't mean that we ca pectoral is clearly on record as deviating from the normal practice by fast tracking discipline which means rather than give a month checking attendance for a month and then giving a month to improve and then checking it again mr peck was on record as wanting to fast track it looking at every month which was for the purpose of terminating him before the f m away so it doesn't we still can show intent even though we don't have to and we would give him that opportunity to have a jury trial in this case the nd point is mr pruett seem to argue that reassignment case is not a fair to accommodate case i think these days after the a t m managements i think it's fair to say there are three types of accommodations one you try to accommodate someone in their current position they couldn't do that with mr weber because of his seizures in the safety sensitive nature the nd combination you go to is will a medical leave of absence permit that employee to return to his or her former job and that is that was the concept between that st medical leave and then rd i think as alluded to in one of the briefs an accommodation of last resort is reassignment so i resigned the case is not different than an accommodation case it's one type of an  accommodation the point about there being different statute of limitations i just don't think is persuasive there are certain statutes like the from l a that provides for a two year statute of limitations but three years if you please prove that it was intentional so that's really not an unworkable scheme with respect to having a different statute of limitation for a different cause of action to address the reference to judge willetts opinion in clarke versus champion about of course those were extreme facts that  involved a gentleman who was sleeping on the job numerous times and so generally for the proposition that when a work rule is violated an employee tries to come back and kind of bootstrap it as an accommodation i agree that's suspect and that needs to be looked at on the individual facts about whether that should go to a trial or not but in this case with respect to not with respect to the office visits because those were forseeable with respect to the un forseeable vents when mr weber was following the advice not to work if you felt that he couldn't because of lack of sleep that could trigger a seizure with respect to those the railroad has a process where they call it investigation hearing so in other words an employee is charged and presumably the reason to have a hearing is to get to the facts and allow the employee through his union representative to present evidence as mr weber did just say why these two or four absences total were related to his seizures and indeed they were and of course that hearing happens before any discipline is issue including up determination so to say that mr weber or his physicians have to be clairvoyant to determine when there might be unforeseeable event is just not work and it's clearly distinguishable from the judge will it's opinion in clark just extreme facts so at the at the end of the analysis we're talking about four simple days when asking it it was still this stubborn i want to be able to go whenever i can't sleep and they're saying in might have been a different story if he just said i have an exact epileptic doctor appointment and but you are you claiming that it was the requests were very targeted and specific there were the requests for the doctor's appointments definitely were the request for the triggering events were after the fact but also clear and what's important here is it's in the brief there is no training under the a being charged for what we thought was a legitimate use so he's trying to back it up with that evidence you know by saying this is legit my doctor told me to avoid triggering events and what he did the only thing he did know how to do was he advanced through his general chairman morgan the vice president human resources where they said hey your federal law doesn't trump our collective bargaining agreement and that's really what this is about is that be n s f never had any policies in place that support the interactive process to say or to allow mr weber to come back and say if you think it's on its unlimited let me get something from my doctor that says it's not unlimited that's the heart of the interactive process and it never happened here so because the n s f never really processed his request for accommodations we have no interactive process we have no showing of any undue hardship which they could never show in light of either extreme absences or removal of the actual work that i know i know i'm out of time but for those reasons