eight failure to accommodate case like this one essentially boils down to this number one is the plaintiff a qualified individual with a disability number two is a reasonable accommodation that the employer could have made to alleviate the effects of that disability and number three does that accommodation impose an undue burden on the employer absent an undue burden there is a duty to accommodate i want to briefly talk about whether the evidence shows at least at a minimum a fact question as to whether or not mr r was qualified to work at ford motor company with an accommodation let's look at ford put in writing mr aren't was successfully working as a process coach he had to achieve or performance related ratings contrary to what ford argues in brief these reviews were not prior to his medical leaves or for p t s d the second one was in january twenty four team it was after his first medical leave for his on accommodated p t s d it was during his second medical to get this was put together by both of mr arts supervisors as well as a higher level thirty third level area manager mr sellers they all signed off on this confirming mr met or exceeded all his key objectives quality delivery cost morel environment safety he was affective with respect to board one behaves which is essentially ford's code of conduct he quote consistently sets high expectations of his team members so this is a solid to be view and this is mr ards second to achieve a reading it forward in this is without being accommodated continuing mr souers his long last supervisor confirms he never observed mr aren't having any difficulty with any job functions let's also look at what the plant doctor dr brewer said about mr art qualifications to work at ford recall that she has expertise with respect to p t s d and specifically that her ins like mr art with p t s d she looked at mr barnes resume when he brought his request to have the service dog strategic planning logistics material handling leadership roles financial forecasting inventory management dealing with vendors she agrees his and his resume was impressive and she said we can find you something it will be open to discussion and we called dr brewer also said she didn't find his request to bring the service dog unusual repeated that she repeated that twice excuse me let me interrupt because  a lot of what you're saying that's farm really is and this isn't the core of this case an extended process that didn't deny his medical condition or anything of that nature and john i wish i wasn't trying to argue about qualifications but the trial court and ford motor company both took the position that mr for mr aren't was not qualified even with an accommodation despite the overwhelming evidence in the record including his own traders testimony he was very capable of performing this job this is on summary judgment is yes so if there is a question of fact as to his qualifications we we would not uphold a district court judgment of summary judgment on that ground absolutely so so getting to judge guy's question should we move to the issue of whether mr aren't terminated the interactive process because i my understanding is that that might be the most critical question here ok so i'm happy to address that so ford's records show that the initial accommodation request was made in february of twenty thirteen now mr are try to retract it but ford's records very clearly said we're moving forward there's a moving forward e mail from may have twenty thirteen that makes no reference to any retraction the problem is ford never actually did anything to move it forward fast forward to may twenty fourth teen which is the day that my client and exasperate put his badge down and said ok enough is enough you're just asking me the same questions over and over and over again and they can they do that they indicated the company calls you and ask you questions and you say i have answered these before i'm quoting well i've cited several cases i mean in the abstract no of course not they're entitled to interact because i've cited several cases an employe can't just put this impermissibly high burden on a plaintiff they have to no matter what is answers are it's not good enough what they need to know is that he has a disability and they have their the proposed accommodation that addresses that that disability i've cited several p t s d doc cases alonso grants and the gaita they all say the same thing an employer does not engage in the good faith interactive process when they're continually asking the same thing over and over again yearly asked the same thing that justified just quitting them and then well it's there and then they're responsible for his quitting because they repeatedly ask him questions well it shows i judge it pretty of noxious but i mean yeah i also is beyond of noxious because they have a duty to interact in good faith and there's literally no evidence of good faith there's a lot of evidence of stonewalling and really doing nothing for it admits it its entire interactive process with accommodation request of you have the exact language bradley used in this request if you turn to page two of the request which is the last page mr r it says quote here's a brief description of what my service dog can provide to me in the workplace keeping in mind that this is a very short list of functions that he provides he is trained to sense when an exciting a panic attack is going to happen then he is able to guide me and direct me to a quiet corner place he is trying to keep people at arm length from my location he also watches behind me to keep people from startled me so as not to set up a trigger for me provide tactile stimulation during intense moments of stress and panic and watch m surprise provides a great deal of comfort and security when he is near it that's giving me the utmost confidence to perform my job mr art provided that information to for correct answer i believe so question when did he provided you know he provided this information in early two thousand and thirteen and that's just a little later in this passage judge question and under the category of how this service animal helps him he's giving a pretty detailed explanation of how the service animal helped sam correct answer correct question ok so given that do you know why fourteen months later according to this script this may thirteenth script the company now proposed to ask mr art how would a service animal help you to perform these functions answer it's a legitimate question and it's ok to ask again question even though it's been documented for over a year in ford records answer sure so but but in the interim between that and twenty thirteen and then two thousand and fourteen there was a medical leave right first substantial amount of time so wouldn't it be  reasonable for ford to wonder whether the situation had changed in the course of a year yes and what that as of april charge they had all they had this questionnaire answers a questionnaire from his westfall answering every question no one at ford said there was anything deficient about any of her answers no one contacted her for follow up no one contacted the dog trainer no one asked mr aren't a single question about safe and healthy health issues is why wouldn't they be able to ask those questions in the interactive meeting that they were having in may because in april there is the questionnaire from the doctor when answered all those questions and nobody at ford took the position that any of them were deficient in any way so just an eye on a similar vein this may thirteenth meeting where my client turned in his badge they also after confirming repeatedly ford's not entitled to your entire medical record we just need to know the p t s d diagnosis they're now asking him on may thirteenth to provide any and all medical records no matter what this man provides to him it's not sufficient they're asking for hundreds more pages even though his p t s d diagnosis is confirmed and his doctor has said the dog addresses the symptoms of his p t s d essentially eliminates the effect nobody but a trained professional or mr archer would even know that he was experiencing any p t s d it's like insulin to a diabetic if you know it takes away these symptoms and allows him to be on the basis of that they shouldn't even have the meeting just given him what he wanted no i think they should have sat down with them i think they should have discussed it as cern's according to mr art all they did was ask him repeatedly would say they can ask a question more than once but when it's documented in the records ten times and that's their lead off question fifteen minutes into the process i don't think that's good faith and i don't think that's moving the process forward thank you good morning that police court eugene scalia representing the police ford motor company mr aren't quit his employment has he said of his own accord for that simple reason his claim of constructive charge allegations but to address briefly the question of qualification judge moore you're correct that the court does not need to address the question of qualification if he improperly quit regardless of coffee cation so this court does not need to need to reach that issue however it would in order to hold for mr art and on the question of whether he was qualified in a sense that's what that meeting was about on  thirteenth how was he going to do his job ford legitimately had questions in that meeting in fact the presentation her from his counsel shows you why they had questions and also shows you what we means unanswered what you heard was that he did his job beautifully and he got good performance reviews that naturally raised the question in ford's mind what parts of this job are difficult for you that is v or want to discharge him he did not and when he quit could do the job they weren't sure they were exploring that that is what that winning combinations i'm sorry and they were exploring accommodations presented to his requests for accommodations they were and they had a number of questions usually this the back and usually when you see this issue of whether he could do the job or not that arises in cases where somebody has been discharged and he says well you discharge me because i was disable and then they are you about that here there you have a case where they want to keep it seems a little bit strange to get up and are you can do the job but we want to keep him by his own admission he was unable to do that job without the dog the arm and or some other in comedy makes some indications which you can interpret as saying it could do the job but the position during all this wasn't that he couldn't do the job so it got into litigation your honor force position was to mr art if you were saying you can only do this job with a dog here that we're going to need to explore whether that works he had come to them and said i want to come back you've been out for three months he's also been out for five months during that thirteen month period from february two thousand and thirteen to about april two thousand and fourteen was in the termination hearing no it wasn't there was in the process that would lead to his not having the it was a meeting to determine whether it was possible to accommodate him and ford needs to understand how he was going to interact with that work environment for example there was  automated quitman moving around they wanted to understand how he was going to interact with that there was a legitimate question how he was going to perform his job if the dog was going to pull him away from workplace conflict what you you heard his lawyer read what he said in two thousand thirteen and reiterated in deposition that the way the dog would accommodate him is that it would make a lot of noise and create a scene that would then excuse him from leaving the workplace in the event that he had all of the argument i'm just those arguments were not for its position all along until litigations there on a fortune have a position ford's position was we want to explore what's going to work here we've got an employee who's have a position then you didn't have that position if you know you didn't have a position  i can't do it i've missed five months in the last thirteen months i have to have my dog here for them said if that's the case we have to explore whether that works and so for had been prepared to have him in the work place without the dog but it was he who said i can't do it where did he say that in his accommodation request that he submitted in two thousand there were class says i cannot do the job without my dog eat me as a quest yes i don't know if it uses those precise words but what he was saying was that he needed that accommodation in order to be in the workplace that's why reasonable accommodation sought him but my answer is really a reasonable accommodations are from some of our past cases is that often an employee will suggest one accommodation that he thinks is reasonable and the employer will say no we don't think that's reasonable we'll give you a different accommodation so there's a migraine case for instance where somebody wanted certain accommodations said no we're not going to give you that because that's disruptive but we'll give you this other accommodation so why isn't this case sort of like that and in the for a couple of reasons john first we never got to that point because he quit he it doesn't have a duty in this hypothetical situation does the employee then have a say hypothetically that the employee says i would want this accommodation from a migraine and the employer says no you can't do that because it interferes with their work in would you say then that our lives that the employee must then suggest another accommodation the mobley and case suggest there's not that obligation the poor but it doesn't matter here on it because they never got to that point and if i could talk about his quid what he hangs his case on is three constructive discharge cases where this court held that there was  reasonable quit but those were circumstances where the court was clear that the employee was in intolerable pain that remaining on the job was actually causing a decline in their health and the employer had indicated in one man another that it was not open to an accommodation and so for example the smith henderson case this court was at pains to say this is different from a case where an employee quits prematurely out of apprehension of what things may not improve that just doesn't fit these facts and all he was being accommodated through paid leave which hankins discords said was an accommodation while ford explored this issue and so church raj the questions you have please coun earlier this is really extraordinary the interactive process we need is meant to share information the dialogue that you and i were having the dial well there was had with planets council is about what is the medical condition here what is needed how  we fix it and he cut that meeting short literally at the first question now in these interactive what makes me think that argument may not be as strong as your continued reliance on the fact that he's not qualified which seems least questionable if we get to the argument that he cut it short their argument is that you know he just reached the end of his rope when he just and run run around mulberry bush so many times we can all sympathize  at some point it becomes a in bed faith of the person just if you're trying to get relief from somebody and they just say the same pablum words and don't listen and just like talking to a machine that said on repeat you know voice activate to the same answer the same answer over and over and over that's the thrust of their argument seems to be you're on it with wrong with that argument which what's wrong with that argument is it's not what happened first of all he withdrew his two thousand and thirteen accommodation request he said we're early i want to withdraw but they said please continue but if you're going to withdraw it we tracked it in writing he did so they then followed up with an e mail to verify and said you know it to continue we would need medical information he never provided  he then we submitted a new request in two thousand and fourteen and he testified in deposition both that he withdrew his request in two thousand and thirteen and why he did so so it's just not credible or reconcile that with the record that his request remained in place and said said during this argument that he provided all of the p t s d medical records and that ford was asking for other medical records that's incorrect your honor for did not receive any medical records until two thousand and fourteen specifically on april fifth two thousand and fourteen but at that point did he know provide that p t s d related medical records on in april fift thousand and fourteen and they met with him on on may thirteenth and by the way he sent an e mail on may tenth which said it four different places you are encouraging me to participate in the  accommodation process that's eighty nine two is the exhibit and and he said again i withdrew my girl request it is just not possible in this record to find that the request was submitted prior to february then there were these qu as to try to get back to my question the point that i got from your opponent was that he did provide the medical records re the p a t s d and you say as of april fifth so why should they be medical records that he did provide i mean all questions it give you an example the doctor said the dog can stay at his work station but he had a job that involved being around on the floor of the plant he was he was a plant manager he supervised nine people he had to make sure equipment was running he couldn't just sit it is desk all day so there was a question right there the doctor says keep the dog at the desk but what about going on the plant floor that was unresolved these are the cons of things  interactive process is meant to be dialogue it's meant to be sharing information it would sharply undermine that process if upper to subpoena who was involved and didn't like a question and decided that they could just quit and stop the process like any discussion exchange of information to go and sometimes people hear things they've responded to that question before he has he'd answered it but it first of all it's the central question how are you limited in your job again and then the in the same problem arises and i can see whether either you're talking about one question arises from a rubric or a set of analysis and the first question is what are your tasks and can you do that's right and he's got a he's got a concern that's a little bit broader it's like i do a whole range of things i can do them all but every once in a while like i'm dysfunctional because that i get hit with this with this memory all right and it seems like i can understand the frustration of someone who says look i can do all of my tasks but every once in a while i get discombobulated and this will keep me from getting discombobulated then they say what are your what tasks can't you do and he says i can do all of my tasks but every once in a while i get in not prematurely assuming that things will improve this is what should he have he should he should have answered the question to the best of the same answer that he had given previously and then let ford proceed to all the other questions that implore the circumstance you could never determine on this record that you could put this person the work place you read the doctor's records his doctor was very concerned about this person's feelings of violence he himself spoke to them repeatedly to his doctor they were very serious questions  qualifier i'm going to the serious questions that were to be explored if you don't like the first one just move on if you will that you can cut short the interactive process just as you don't like if i hadn't or too could have said i've answered that question before and then just sat there he could have done that and had them give the next question and they would have had to determine based on that whether they had the information and what if ford said well if you don't answer this question where not going to be able to go forward on this that would be a different case  what happened he should have sat the meeting through and again back to constructive discharge this case again we've talked about cough cation put it aside he has nothing to sue on if he quit his job absent constructive discharge and there's no way the facts here can be reconciled with this court's constructive just charged jurisprudence if you were to hold that you've been constructively just charged if you don't like a question you were asked and can quit your job and sue you would radically transform the wrongful termination case you would have before you that's in the way you phrase it it say which we could hold much more narrowly conceivably that if you asked a question which a jury could reasonably conclude showed instead whenever that happens and it shows that there's bad fade them not whenever that the employee decides he doesn't like a question anyone can decide they don't like any question they have to show that it showed bad if they asked at thirty eight times that would be a pretty good sign of bad faith with that and i would refer you to the loss of good fifth circuit decision which i think a ruling of that nature would create a conflict with because in los again the court spoke about how it's question otherwise your question is what had preceded it thing if it's true isn't it counsel that that that they are not asking the court to say if you don't like a question good for interactive and say interactive process maybe that's not even enough but it's a different question than the one you're saying as presented you know what they are what they're saying first of all is they are misrepresenting the status at that point or did only have the medical records for a month and and second your honor what they're saying is that in the very meeting intended to get at how to solve the problem employee can take offense it quit ensued which undermines the interactive process rather than for thank you you mr art's twenty fourteen renewed accommodation requests that's what the company has deemed it they renewed request he doesn't say contrary to ford's counsel's representations that he couldn't do the job that is not in there they also want to point out that months before the may thirteenth meeting where mr r turned in his badge the plant doctor put in writing this is in the docket page id thirty two ninety two that she had medical records the diagnosis of p t s d is supported in eighty eight cases a very important premise is that you make an individual lies inquiry no one wants the court to make broad sweeping pronouncements on any of these issues but the fact is the trial court got it wrong in this case with respect to this play to the trial judge of the law he did and it forward privilege log of withheld e mails of unknown content as support for his finding that ford must have been working diligently to accommodate mr ford mr r and in fact judge borman said they communicated weekly to address this complaint based on a log of withheld e mails so how so i mean these e mails could have easily have said let's stall and do nothing we don't want to better in with p t s d in the workplace you know we don't know that because those were withheld they certainly can't rely on privileged withheld communications to say we did our job we investigated we were in good faith working forward on the issue of whether or not ford wanted mr hart to r tighten to resign that's not to required for constructive discharged but there is evidence that that's exactly what was happening remember at the very same individuals who ford says were working to look into this a d h accommodation request were scouring his attendance records looking from day one from two thousand and twelve ten people at ford nobody at ford could explain this except this was in the same timeframe where they had solicited my clients replacement and had him in place when they knew that mr arts returning to work with the medical restriction of the service dog was imminent i asked  the board witnesses heard she's a benefit specialist named michel truck why was the company scrutinizing his his records the only explanation i got was well we had to know what is f m l a entitlement w so that's a ten person team effort what michelle trusts said was well late that i would've gotten out a twenty fourteen calendar and kill elated twelve weeks from january first and come up with the date of march twenty sixth that's when his a leave would have expired so literally a one minute calculation we have a ten person for team investigating digging not interacting with mr art about his accommodation request but behind the scenes talking about his placement talking about his attendance literally putting in writing i found this in my car does this help just there's overwhelming evidence of a lack of good seats in your red light so that you and i had a question but i didn't want to intrude on your knees up your time answering your question you're both arguing is indeed good counsel always does all of the technical points of our cases and for me this case context is everything and it's unusual in that the typical case is somebody has a job that requires two hands and one hand it's injured and they say give me a one handed job and if they find it for him then that person is going to be able to do that on a regular basis in this case the accommodation for me calls into question his qualifications because when he has these episodes for example one he was off five months what if the dog didn't alert for him that day after all it's a dog and as far as some of the things that were choir  keep people away from i'm a pit bull i guess would do that without any training but i'm not sure ford wants that kind of thing going on on the floor and i just it's so nebulous that you can understand why it would be something that an employer would have to wrestle with because everybody's liability conscious and one hand you've got a veteran of the very deserving veteran that they're trying to help on the other hand you have all sorts of liability questions on the other hand and that seems to me what just not being talked about in this case so judge i agree i think if you want to greece that there were some concerns that had to be diligence to the problem is no is talking about we had to do a b c and d to investigate there's literally nothing in the record that that actually happened let me talk about the keith case the sixth circuit case a very briefly it was a death lifeguard who you know what you cannot hold a disabled person to a higher standard than a non disabled person in other words prove conclusively certainly not at the s j stage of a case that you would have been able to perform your job perfectly and never required a medical leave had we accommodated you i mean mr aren't was entitled to take medical leave the f m l a requires that ford motor company this is not a mom and pop operation they had all kinds of positions they could have explored for him they have generous leave policies and one other very important thing is the trial court essentially was dismissive of the psychiatry just hired post litigation or during the litigation by ford who said there are a lot of options we could explored for mr art everyone agrees an office setting was really not what would have basically been a non issue for the dog so let's explore options let's sit down and talk let's not just keep spinning our wheels and making mr