thank you your honors may please the court my name is alex higgins i'm here on behalf of kathleen hugo here along with my co counsel matthew bean at its core this case poses an important question whether a disabled individual can try to perform a job without a reasonable accommodation even where one is possible or suggested the eighty eight was not passed to require a disabled individual to accept a reasonable accommodation nor was it passed to give employers the right to assume a disabled individual must need an accommodation in fact the opposite is true it was a pass to it was passed to eliminate assumptions and stereotypes about what disabled job related pre sale under forty c one two one one to be safe did you ever raise that yes we raise that at the outset before the case even started and we raised it throughout the trial that all of these medical examinations beyond the first request for more information was an invalid requirement of a medical exam under the a da throughout the case so it related to the renton job and the long beach job did you raise it in your pleadings in our pleadings below yes i'm an in your complaint to us i am quite sure we did i know that in the in the reply brief on page sixteen we talked specifically about twenty nine c f r section sixteen thirty point nine as a relates to the long beach job that an individual with a disability is not required to accept an accommodation which such qualified individual chooses not to accept for example so i think the i guess i was just worried where you had waived that issue because i couldn't seem to find where you had raised that issue that it was job related anywhere on his way up to us well i think it's boeing's well i guess let me first start by trying to clarify your question it's boeing's obligation to  prove that it is a job related to business necessity not our job to prove that it is not so we definitely objected to the necessity of the medical examinations you he was subjected to along the way throughout the trial and in our briefing to you but the district court ultimately found that were not challenging that those medical exams were necessary as to the job and rent but there were no findings by the district court that there was a business necessity as to the job in long beach he simply said the there wasn't discrimination and they needed somebody right away and so they didn't need to accommodate her by extending that and not just your honors i'm very sorry i need to go back to the beginning i failed to reserve time may i now reserve five minutes of thank you your honour's all right back to what where i was going is to this so the c f r that says an individual with a disability doesn't have to require an accommodation but if they don't and if they want to be treated just like everybody else then they are going to be held to that same standard and that's what m asking for there had been a mess created and written and you know her she was high functioning autistic she had made a mess of things and rent in between her i'm bowing in terms of who's to blame it doesn't matter now the district court found that  found your client right a large share of the blame absolutely here and why so just going back to the point you were just making about the long beach why under harris wasn't going entitled to say you know what we know about the issues you had written the job that you're going to take in long beach is not so different in kind that we could assume that you'd be able to perform it without figuring out what accommodations you might need and so therefore we are going to need the results of this  reasons number one harris was a importantly asking for this person who had carpal tunnel syndrome came back a short time later for the same job to simply provide a clearance from the doctor a release to go back to work it was a very basic form miss you could have provided that from four different providers by the time the long beach job was offered to her so we're way he weighed beyond the facts of harris harris also involved a physical injury which i think the employer it's a little clearer you know can this person lift this amount as opposed to high functioning autism where there's inherent subjectivity and you look at the medical and they're there things like well she might benefit from a job coach but nobody said she couldn't do the job at long beach in fact there's a be this is really important to ten doctors dhobi says a new job in long beach would be ideal for her yeah but but the broader principle that hair stands for that again i think stands as a barrier to your prevailing is that the employer is not required to put on blinders to what it learned before in its previous interactions and here but we knew that your client had had had issues and ran with it with the type of job she had there was every reason to think that she would have similar types of issues with a job in long beach i don't think you can say that that job was so different in kind that whatever issues you hadn't written aren't weren't likely to to arise and we agree that harris was correctly decided that you don't need to put on blinders but harrison volved an employee who refused to provide anything and we have his you know he's saying being that your client can't just show up in long beach and say hey i'm going to go don't i don't need any accommodation i think boeing is entitled under harris to say well you might be saying that now but we actually need to work through through a medical provider what kinds of accommodations might be necessary but the effect of that is running out the clock on misuse job opportunity in long beach well that's so that's why the district finding that it was really your client's fault come october that that process had not been finished your client participated in bad faith in the interactive process and it could have been done back in july for all we know well the bad faith with regard to the interactive process does and give an employer carp lunch to discriminate based on this ability doesn't give the employer the right to say well now we're just going to do whatever we want to you and just because you had a disability in the past and requested a reasonable accommodation in the past we're going to do whatever we want we're going to require you to jump through eight million hoops with different doctors and we're going to run out the clock on any job opportunity you get so i don't think the judges the district court's finding of bad faith with regard to rent applied to long beach and in fact the district court did not apply it to long beach the district court said you don't win long beach because dung tran the decision maker down there only knew that you were on medical leave and that misses the point entirely because it wasn't done tran who said you cannot be released from your involuntary medical leave it was boeing upper management including legal who said no no no we're not releasing you until we get every piece of information we want i think would be a dangerous precedent for this court to say an employer can not not only does employer not have to wear blinders but an employer can look through the employee's history under an electron microscope to find some reason not to let that person go to a job where they just want a clean slate she wanted to work in a job that's a lower level she's going from a mechanic injuring three down to a two and she says i just want to try clean slate this guy wants to hire me he says i'm qualified boeing admits that she's qualified by offering her the job she wants to go start fresh down there and boeing is saying no no no we have four medical providers clearing you but we need a fifth one now to review all this data and provided that discrimination and the district court made no finding about whether that was discrimination what he said was they didn't have to provide her reasonable accommodation because she didn't operate in good faith which is i think correct as to the written job if you don't operate in good faith on the reasonable accommodation you don't get a reasonable accommodation but you should still have the right to say ok i want to try without an accommodation then and see if i can be treated the same as everyone else and meet everyone else's standards and then the question of whether she would have been successful in long beach cares to the contrary that's that's what the person here is that i'm fine whatever issues i had before i'm good i don't need any accommodation i want to start back in the players we already have we already know your history and so we're not going to allow you to do that until you get an appropriate clearance here it seems to me it's the same well if you look at what harris was actually asking the employee for it was a very simple release and harris it was a very it was what they could court actually referred to as a progress report more akin to a progress report than a comprehensive evaluation from a general practitioner so the court on page eight forty three of harris makes it very clear that they're just saying mr harris needed to provide something from a doctor saying it's ok for you to go to work look at the medical clearance is provided by ms who can look at dr  ten where he says this job not only could she do it without any medical could restrictions it would be ideal what more should an employee have to present to an employer than a recognized expert in this field dr gary still be if  washington saying this job would be ideal for her and she does not need a reasonable accommodation so the way i understood the a d a s in terms of the big picture in this case is that you don't look at the employer or as the entity you focus on the nature of the job if she wanted to apply to be a custodial worker it does not make sense to me particularly given the s language in forty two u s c one two one one two b s six that a test or other selection criteria as used by the covered entity is shown to be job related for the position in question so i'm having trouble with the concept that because she was incapable of being a nuclear physicist and interacting with the public that that should somehow  fact her ability to apply for a manual labor position with the same company and i'm missing something i don't know because i'm not i'm not tracking necessarily is your question whether she i'm sorry i don't understand focus on your ability to perform with or without accommodations for a particular job i think that's correct right exactly oh that's your point yes if the nuclear physicist right essential functions of being a nuclear physicist might be different the ming a janitor i agree and so and so your question for me is is well isn't that the point here she was applying for a completely different job and whether the door had been closed on her because she had engaged in you know i see it many failings in the prior job why should that affect her ability to apply for a lesser job that had less you know physical demands if the whole purpose of the  is focusing on the job related accommodation is well i agree with much of what you're saying which is that it shouldn't make any difference and she should be allowed to say i can do it i may be in i'm having trouble with a level three job but i'd like to try a level two job and i don't think i need an accommodation and the doctors all say yeah child like try a manual labor i'd like to clean windows right does the prior medical prohibition or stay prevent her as a matter of law it should not that i don't see any reason why that should prevent her from working in a different capacity at boeing and in fact i think it would please the court thomas peterson for the epilate i'd like to start with the point that my colleague raised about the reasonable accommodation claim and the its scope he suggested that the court didn't make any findings of reasonable a dation that would extent or that its findings on that topic would extend to the long beach job and i don't think that's supported by the findings that the court made it repeatedly emphasized that throughout the interactive process there was a failure to buy by the plaintiffs to engage in good faith in the interactive process and it routed those determinations in part in its credibility assessments and so it concluded that no reasonable accommodation was required because plaintiff essentially forfeited that right by failing to engage in the interactive process while boeing fully complied and it also made a specific finding that the reason why the medical leave was was extended longer than it might otherwise have been was because of the disruption and failure to cooperate so so i don't think we can say those findings don't have any application as to one beach your honor i think you're ok well let's hear your response to the point th counsel on the other side has press most forcefully this morning which is that look she wanted to start afresh with this new position maybe had totally different job responsibilities whatever issue she had had in the rotten job why was there any reason for boeing to assume that that would be a problem in long beach when in fact she was now saying i don't need any reasonable combination and all sink or swim on my own you know my own abilities ok i think there's a whole series of responses to that position i'd like to start to progress and if i may by taking your your point that you put to my colleague about the nature of this other job she wasn't a plant she was applying for another engineering job it was in a different location and it had  different focus of attention but it was it was not some sort of lower level janitorial type position the job she was applying to do was to work in the part of boeing where airlines call and ask about parts and how they can use those parts to repair airplanes that are on the ground and not functioning or need to be repaired for some other reason so this was not some sort of job disassociated from  actual finding that the jobs were sensually terms of requirements i do just representing that guy representing that based on that's that's what the evidence describes as to the nature of the job and no i don't think the court actually made a finding about the whether there was a similarity but we do know and there's really no dispute about this that it was an engineering job and we also know there's a variety of characteristics let's assume it wasn't the same type of job would you agree with the points that i made earlier i would agree that you focus on the job but i would disagree that on this record that bowing was not intitled to assume that there should be a continuation of the the the examination necessary to deem her qualifications to do that job i say that for a couple of reasons first heris strongly suggests that once the employer has knowledge of the need for an accommodation that that duty continues it's not the only case that says that if you look at this court's humphry decision it makes very clear that once the interactive process is triggered there's an independent duty to continue to engage in that process even wholly apart from a request and now let's also talk about that medical examination process that medical examination process started in june when she went on  leave that's when that was the purpose of it and not long after this is in july the plaintiff's lawyer wrote to boeing july twenty seventh and said we're willing to cooperate with boeing to see through this medical examination process which to your honor's point that the job was the job sufficiently different that the that you couldn't assume that that because of the characteristics of the first job that she might be unable to do the second job look at what the doctors the information she supplied look at what they said about the circumstances under which she would require job coaching or other assistance take first dr caplan or one of her physicians the person who i believe diagnosed her in ohio he said e r when eighty three job some sort of accommodation and job hope coaching is required quote when changing two or starting a new work group that's exactly what she was proposing to do here that's her own doctor dr khan wang who she also can salted with wrote to boeing on june twenty sixth that she needed a job coach though she confessed not having a lot of expertise about the subject dr frazier again proposed that there be a job coach well he later withdrew the requirement of written instructions but he said there would be a job coach during the particularly during a performance review period here ms bloom aug fourteenth s e r five ninety five a job coach will be required to address stressful interpersonal situations strategic support for interpersonal dealings and to help establish clear guidelines now look at what the evidence tells us about the job she was proposing to transfer to it was a job where they they received calls from airlines who were seeking out parts and other information to deal with planes that needed to be repaired and boeing had there were there was a backlog of three hundred unanswered calls someone in this position had to deal with his trip twenty or thirty calls a day and in those circumstances there were there was a boeing policy that a response had to be provided within an hour if at all possible the information boeing had suggested that that job is the kind of job that would require her to still have an accommodation based on what it had been told by her own medical experts and the people she consulted with now now we heard about dr stow being a boeing didn't make any of those findings going just said we don't have enough time to wait for  well but your honor the court made a specific finding that the reason why that this this process was still underway was because of her failure to cooperate in the good faith investigate in the good faith process the requires this would have all been resolved much sooner than that but what i'm what i'm so what i'm trying to do is respond to your honor's point which is what does the record tell us about whether boeing could reasonably have been expected not to to seek out a conclusion of this process with respect to her evaluation that had been started and as they say in july twenty seven plaintiff's lawyer has said it was something we were willing to cooperate with your honor i i i i i i don't know that it necessarily does i mean i think what it does is it precludes her from bringing claim based upon either the failure to accommodate or or on the theory that somehow there was something untoward with respect to boeing says of boeing's a decision not to hold this job open for her i don't think it would necessarily vitiate her capacity to get some sort of a job but i do think it defeats the claims that she has in this case right now let me just also go back to completing the litany of items which make boeing's conduct all together reasonable in concluding that this job that it that it should assume that there was still need to evaluate reasonable accommodation that the next fact that i think is crucial my my friend talked a lot about dr stow b and what dr still be said based upon a reference to e r to ten in the record that's something dr still be  said in an initial evaluation he did on september twenty seventh he was asked to do in a further evaluation because it was based on no more than a one hour consultation when what had been requested was a more elaborate report and if you look in the record at  stipulated fact thirty seven e r seven what you'll find is that boeing received on october sixteenth a recommendation from ms davies who did a more thorough evaluation that a job coach would be required and on october nineteenth the same dr sto be said that the job coach was required now another fact which i think is kind of gotten lost in all of this net never communicated to boeing that she did not need a job coach at the new job until after she'd failed to report to that position but the only evidence in the record that i know of which suggests that there was any communication about this subject to boeing was in an e mail on october the eighth which was sent by mr bean in response to an e mail he'd received from ms lad who was in the boeing law department this is it r two zero zero two that's the first place in which it suggested to boeing that in the process of applying for this position at long beach that is that the plaintiff was not expecting any kind of a job accommodation but even that e mail is equivocal because that e mail also says and in any event the results of this evaluation this evaluation which i told you they agreed they would cooperate with the results of this evaluation will be available in a few days so why can't we just wait for that well the truth is they it wasn't available in a few days and in any event the record is really that there is this court specific finding as to which there's ample supporting evidence that mr tran who was the decision maker with respect to the job reasonably believed that he had to act quickly because of the three hundred backlog and run around the whole purpose of the from applying for any other job at boeing as a matter of trumped and i'm having trouble with the whole concept that the boeing didn't make a finding or didn't do any analysis that would suggest that because of what happened at renton and her ability to perform that job that that equally applied to whatever this new job was to be a cook or another engineer that part just structurally strikes me as maybe we're getting into an area where we're going to do damage to the purpose of the d n a and requiring that you you look at discriminatory intent and you and you or affect and you ask what you know you look at things in terms of what the particular job is that's my concern well but honor what i what i hope i've conveyed is that boeing had from the medical experts that her experts boeing had a series of statements which said the kinds of circumstances that would require accommodation were the kinds of circumstances that would reasonably be associated with the job to which she was seeking transfer she had never made clear intel after she didn't report for the job just that short with this report in the make that finding it's conclusion of law believe it's number fourteen what it says is is that the interact that the boeing acted in a nondiscriminatory manner in for nondiscriminatory reasons with respect to this leave that started in june with with respect to seeking out whether or not there was an accommodation that could be provided to her and that the boeing acted lawfully and for nondiscriminatory reasons with respect to that and it seems to me that the evidence that i've talked about the failure to communicate the lack of a need of accommodation and these doctors who are saying that there are circumstances that require a job accommodation for her which are consistent with the characteristics of the job to which she is she is seeking transfer you take all of those facts that's enough to suggest that there is nothing that that the court could legitimately determine that that boeing did not act unlawfully in these circumstances you can then overlay the fact that i think there's a danger with the way plaintiff is trying to litigate this case if this case was not lead to get it as a long beach case i think in response to judge nelson's questions i don't think a lot of the positions that you're hearing now were clearly state out as discrete actionable incidents this was a whole series of activities long beach is part of the accommodation parses she she seeks out the long beach position when she's resisting the idea of being intitled to influence the person who's supposed to do the medical examination  as part of the accommodation process so it's all part of the misconduct if you will in the context of the interactive process and her and it and hurst and the circumstances of her behavior undoubtedly meant that she wasn't available in october because she that process would have all been reasonably concluded much sooner if she hadn't acted repeatedly to to interfere with it and not to act in good faith so i think unless the court has communications with boeing's in house counsel on october eighth when the long beach job was being withdrawn and he wrote in house counsel it's too bad the miss you simply can't be told to report to the position in long beach she could be there in days she isn't requesting any accommodation there for this reason there should be no business necessity to have or evaluated in the first place a going to judge nelson's question this was raised from the outset of this case before this lawsuit was even filed the the  information that council just talked about on october sixteenth and later regarding dr sto be and whether she needed a job or not that was all irrelevant to long beach because long beach had been withdrawn by then and we were well i would say that that is first of all wrong and secondly if they had those questions they certainly didn't ask them of mr miss you these council on october eighth or of dr stowe b who on september seventh wrote with regard to long beach in particular her option of relocating to a new group such as the job that she has identified in long beach seems ideal etc and would improve the likelihood of success in the workplace so if they were serious about making this w clients own doctors who said that she would need a job coach in the kinds of circumstances she would face in long beach no they said we should consider a job these are things that should be considered for her not in long beach nobody ever said in long beach right up to the he was describing generically the kinds of work situations in which she would need that type of accommodation and it turns out unlike say a janitorial position perhaps that the job among beach presented those circumstances so and then we come full circle back to the first point which is does an employee then have the right to say i don't want that accommodation i don't want a job no when when the person is an unusual employee perhaps but not when they've already had a history with that employer that's why i was citing the harris case because that case suggests that once the employer learns what your potential limitations are it need not forget about all of that history and we take one more shot at harris and i think harris says you need to at least get a doctor to ok you trying without an accommodation that you're safe to return to work you're not going to injure yourself and she got that four times saying yes she can give it a try and boeing is not entitled to stand in her way and say no you're disabled we assume you can't do it and you're going to need an accommodation ok thank you council the kids just argued will be submitted