good morning good morning your honor my name is glare and i represent appellant tiny john i'd like to reserve about three minutes for a bottle for a bottle miss johns us requesting moment mr johns broke her neck employees at the postal service leads to a campaign of discrimination against her because they did not want to deal with her and her disability campaign beaky and as soon as she broke her neck and her supervisor tried to dissuade her from applying for a family leave and then fired her the campaign culminated with a complete shutdown of communication during the last five months of her employment the postal service his treatment if miss johns was a blatant violation of her rights under the rehabilitation act the postal service doesn't dispute any of the evidence of discrimination presented by ms johns but the district court nonetheless found that no reasonable jury would be able to find that the postal service had discriminated against mr johns this judgment was in error the evidence presented by mr johns  discrimination was so compelling that no reasonable jury could have found that the postal service didn't discriminate against her at a minimum however the district court misapplied the summary judgment standard and failing to kind of accommodation would have been able what could have been offered that would have addressed your client's disability at the time and yet fulfilled the rehabilitation obligations of accommodation of the post office there are two possible accommodations the first is an extended unpaid leave with a guarantee to return to work this was denied to her because she was constructively discharged the second just charge there's some really outrageous continuous kind of conduct and it at least appeared i mean there were some things about accommodation that will need to talk about with the other side but it seems like began with her and michelle terminations actually let me back up it began with her supervisor trying to dissuade her from taking f m l a then i had the postal service initially terminated her and then prior to her initial similar to this case and and sanchez the ninth court upheld a constructive discharge where an employee quit after his marriage pay increases were removed without due process while he was on medical leave the administrative proceeding right your honor i do and that the district court's judgment was in error on this case on that issue a failure to exhaust administrative remedies and the postal service has not identified any issues that would have invest had pets john specifically identify constructive discharge in her air rocketry responses the purpose of the administrative exhaustion process is to give notice of a claim to an employer and an opportunity to investigate that purpose was fulfilled in this case the postal service service should therefore not be able to use the administrative exhaustion requirement to limit ms johnson his ability to pursue recovery not turning to the possible commendation for for boxing now the district association when a an employee actually first let me let me back up there were a number of issues of material fact with regard to the boxing mail accommodation first with someone placing the bins of mail by the boxes have been an unreasonable burden for the postal service how many how many of these larger packages needed to go out to the lockers would it have been an unreasonable burden to have somebody else do that for ms johns with his johns have been able to box mail without twisting her torso that the postal service claims now that boxing mail wouldn't have been possible but this late in claim is not sufficient to allow it to avoid liability because it made this determination only in the context of a summary judgment motion years after mr john and mr jones made the proposal if that approach were permitted under the law and any employer could avoid liability by simply ignoring an employee's proposal for accommodation waiting for her to get so frustrated that she quits and then saying after the fact well that wouldn't have worked anyway and under humfrey versus memorial hospitals when an employee presents an accommodation that is plausible and the employer rejects that proposal without providing an alternative that employer is liable for failure to engage in the interactive process that's exactly what happened here miss johns proposed box email as an accommodation this was an accommodation that her former supervisor testified had been made before for other employees and the postal service didn't even bother to respond to miss johns there's no way to read it's refusal to respond to her other than we don't want to deal with you and your disability and we don't want you back at the postal service provided to an employer and whether those offered whether there was an opportunity to investigate and that happened here all the incidents that mr johns for lives on for her constructive just church claim were identified and investigated letter she says the postal service has shown reckless disregard for my civil rights and i am fair for forced to resign that's that's notice of the claim she didn't use the you know and in that case the claimant made a similar mistake to mr johns the claimant in that case was pursuing denial of family leave claim the field identify that claim during the administrative process despite the fact that postmaster at a very small post office amador city but then she spent fifteen to twenty hours a week at the center creek post office where she was not the only employee and when she worked there what she did was to box mail so that's putting mail into the post office so what she was requesting was that the the bins of mail are broken down and like where the mail goes into like rough sections so she was requesting that the bins would be put near those boxes she could box the mail and then for the larger packages those packages would be taken out by somebody else to the to the lockers that was her request but the postal service never responded to this request they might point to a meeting that the district reasonable accommodations committee held after her constructive discharge but in that meeting they didn't even discuss request they discussed whether mr johns could have returned to her job to her job full job charities duties as a clerk so that's doing all the duties ms johnson never claimed that she could no doubt that you will deliver may it please the court victoria bush on behalf of the postmaster general turning first to the interactive process claim as this court recently observed in the snap case there is no standalone claim for failure to engage in the interactive process what the claim is is a failure to accomodate claim the claimant says because the interactive process failed i did not receive a reasonable accommodation that was available and so the key here is the availability of a reasonable accommodation the interactive process here worked mrs johns received the reasonable accommodation that she identified in her interactive process questionnaire as what she needed to return to work which was leave to allow her to heal from her injuries and even if one found that there was a breakdown later in the process the claim fails because the undisputed evidence shows there was no reasonable accommodation available here that she was not provided with isn't that simply a leaflet for the trial judge to make that conclusion no your honor and the reason is that the undisputed evidence in the record shows that there was no reasonable accommodation available that she didn't receive everyone agrees it is undisputed that ms johns could limitations they had accommodated and helped him out handling the heavier packages for example so that evidence is one sentence in a deposition where and postmaster said well sometimes if somebody came in they tweaked their back maybe we'd move a bin for them it had it did not cover a situation like this where she had a doctor imposed restrictions she was prohibited from twisting her torso and prohibited from lifting over ten pounds by a medical professional who said that that would harm her it's very different to say that a person with those dr imposed restrictions could safely perform the functions here what we've been talking about is box and mail because that's what she identified no i yet there are three reasons why that would not work your honor the first is the undisputed evidence in the record shows that boxing male requires constant reaching stooping and turning and frequent turning of the torso that's what s e r three one name so that's not just the job description that is the evidence in the record from someone with vast experience doing that job and there is no contrary evidence there's no evidence in the record that anyone had ever box judgment and you've got a situation here where ms johns according to what i see here repeatedly tried to get interaction with one or more people and she was ignored they've well i don't know what is true or not i'm just saying that's what right and allegation is you have the contention that she was not given an opportunity to perform the boxing that we talked about but the issue is who gets to decide this the district judge decided it and the question is is there a material issue disputed fact and that's what i'm struggling with frankly i don't know how the district judge made this decision and basically acted as the trier of fact your honor the undisputed evidence shows what boxer male requires there's no effort there's no contrary evidence and this court has felt that that an employer is not required to reallocate essential functions of a job that's a darkie curry four five one f thirty one of seven eight at one zero eight nine cited in the snap case so from my perspective there's no evidence to the contrary to that so even if there is a dispute about whether or not they refused to engage in the interactive process even if they had they could've done anything right now you do have this paid leave concept yes and she was given paid leave and the undisputed evidence accommodate that is why she's asserting constructive discharge your honor because she needs that in order to hold on to the claim yes unfortunately the constructive discharge claim  well actually let me make two more points about boxing mail and then move on to constructive discharge she claims in reply that she could have boxed mel she could have turned her body without twisting her torso by only moving her feet she cites no record evidence to support that and there is not all the she she doesn't it but she does not explain how she could possibly have it so if i can finish the point with a broken ankle and one foot off the ground you can't use your feet to turn your body that's just argument and there's no evidence she didn't though well she submitted no evidence to the court to that effect so there was no evidence before the court that anybody had ever box a male without twisting their torso or that she could have done so and if you said that i thought that she said that she could do that with some accommodation and then there wasn't any back and forth with regard to whether that could be the case or not that's the problem  disability she claimed that she made numerous attempts to interact with the department there certainly evidence to that effect so she says that she ultimately quit because she was so frustrated she couldn't get anybody to respond so it's almost a circular that it takes you know if you couldn't get them to communicate he was being paid that guy because she quit but you quit because they wouldn't communicate it's kind of this sort of thing to have an interactive process requirement if they would have engaged in the interactive process then the least be a more complete record with regard to whether you could or couldn't do that or whatever else you're offering but that process didn't happen so they didn't gauge extensively with her your honor which i think is important on the issue of good faith here when her you know so she talked about a campaign of discrimination there's nothing in the record to support anything like that she was she was mistakenly terminated because a computer had denied her family leave when they realized that error they reinstated her they sent her a letter saying please come and take part in our reasonable accommodation process here's a brochure explaining about reasonable accommodations here's a questionnaire for you to tell us what you need she sent that in she they sent her letters they had a phone meeting with her it is true that there's one postal it nurse who she'd been sending medical advice dates to who she called on two different days she sent she left one message in jail and january twenty fifteen and then she's left three messages on one day in february of twenty fifteen and it is true that thirty two three in one day it doesn't count but i it's your honor respectfully you know sometimes people don't always return phone calls and that's regrettable and you know not ideal but not a reason to impose a great deal of liability on an employer and not an intolerably hostile condition that compels someone to resign particularly not someone who has an seven occasions in writing been provided and a number for the district reasonable accommodation committee that she should call and the last two times she received that number it told her please call you're right about constructive discharge there just wasn't enough to meet the standards but let's say also that there's some evidence that she was not provided a reasonable accommodation i know you disagree with that but just say argu  no there there was that evidence you can still send that back to be to deal with the reasonable accommodation issue even though you may or may not agree with the construct we discharge  oh we don't find that she had grounds to quit basically but before that time if we find that there was certainly evidence that she was not provided a reasonable accommodation we can reverse that issue alone though and send it back to determine whether she had a reasonable accommodation correct the two issues are separate however the undisputed evidence is that she received more than ten months of leave after her a family leave expired and point there's a third reason why boxing mail is not a reasonable accommodation here and that is that the undisputed evidence demonstrates so so let me back up she worked as a postmaster relief at a small post office called them her city post office and then when she was working she picked up extra hours helping when help was needed at the sutter creek post office she was a nonunion employee and at the time she did that that was permissible however at the time period issue here is very narrow it's january  and fifteen that's the time during which she is alleging she could have had an additional reasonable accommodation in addition to leave and during that time allowing ms johns to box mail at the creek post office would have required the postal service to violate the union contract in place which said that that task could only be done by union employees and to require an employer to violate a union contr act render contracts that would prevent the postal service from doing that you can find that s c r two one two and three two zero so the undisputed evidence is that this boxing mail reasonable accommodation was not available and an interactive process claim which is actually a failure to accommodate claims must fail if there is not evidence to support the idea that there was a reasonable accommodation available that was not provided   postal employees that explain that there was a union contract then in place and that it precluded any nonunion employee from from doing doing clerk work like boxing mail at this  that s e r two seventy nine to eighty seven she actually refers to the those jobs as as one and the same so she refers to the job description for a union distribution clerk as being the seen as the nonunion pm our position then you have the fact that the postal service never raised this issue so that position that it was john says position changed from non union pm our position to p a c position in approximately november december of two thousand and fourteen that's according to our supervisor mary finds deposition testimony and the postal service never addresses this issue and it's you know subsequent meetings about whether reasonable accommodation was available for mr johns they never tell her and her in communications to her after she's contracts constructively discharge well you couldn't come and the court stands in recess for the day