for why she was a victim of discrimination and i outlined that in the opening brief and basically we disagreed with judge last to make in that we believe that there were outstanding  relationships so there's always going to be it needs to go to contrasted disputed issues doesn't carry out that and you know there's always going to be able to if people are together for years it seems to me to be but this all started when your client had an accident while she was working and suffered traumatic injury and by everyone it seems to be undisputed that your client could not do the job that she was doing previously he had been a good employee before that he was performing at the necessary level after that and it seems to me that your client agree that she can do what  welcome to bring to be honest with you your honor we felt that the issues were outlined in our opening breach that i had a conversation with this with my clients on this  and i'm partially really responsible for this when we when we submitted our opening brief i took it over from another attorney and i felt that we had had gone ahead and ruled on the merits even though he didn't accept and even though he didn't initially grant the  of discrimination i don't want to hear about the brief i don't want to hear about how you got this case i want in a sentence or two you to answer her question ok that's what i was trying to do your honor the problem that we're having in this case is we don't have the evidence to meet their prime and face the case right now because i was under the understanding that the judge had ruled on the on the evidence that we had submitted late and  and we were preparing the argument based on that evidence when we received the response creates i discovered that in a footnote a judge last night had not allowed the extension of time and even though he considered it in the argument in his ruling he very clearly in a footnote that i hadn't discovered before ruled that it was not granting and extension of time and with that i told my clients on the on the required brief i said i can't defend this case any longer because we don't have any evidence based on their initial response and there was no notice of the peel filed on the other there was no notice of appeal filed on the denial of the extension of time and so my client instructed me to simply go in there on the briefing that we've had and that's what i'm doing and quite honestly your honor it's we're not granted that extension of time we didn't have any evidence that it defeated summary judgment i proceeded on that and it was my fault i proceeded under the assumption that there was enough we had a good argument if he had considered our evidence but i misread his order because i thought he had considered our evidence and it was very clear in a footnote saying that he right but it should have been included in the things of the orders that we that we were filing and there was no notice of appeal on the extension of time and without that we didn't have a we didn't have an argument for the final order if we had gotten the extension which we didn't or excuse me if we had appealed the denial of the extension of time they didn't have in the record a comparative which the other side has claimed for various reasons evidentiary wise didn't apply and it was in the process is addressing that that i discovered we didn't have any evidence but  we did have a compared or but i never got around to i decided to be through the list to go and address the evidentiary questions when it wasn't even before the court but yes there was there was a compar to i think it was yeah  in the comments that were just made several times it was referred to as a motion for extension of time that was denied there was no motion for an extension of the issue in this case related to the summary judgment summary judgment that was filed had a response timely filed in this case including the declaration of ms mayorga the motion that was denied was to after the defense reply was  filed by a brand new completely different response to the motion and that the district court denied that motion because they had already responded and there was no indication that they needed additional time with the time the response was filed but they were incapable of responding within the rules but nevertheless the court did review their supplemental response in order to see whether there were a and in this case the undisputed evidence problem is made is that she was not capable of doing her pretty injury job which means that any claim for disability discrimination fails with regard to her in her position of pre injury there it is undisputed that they can see searches that were conducted during the disability reassignment or limited by ms mayorga and failed to identify any vacant therefore the reassignment process looked at secured cases that are in positions that were vacant and funded did not carry a caseload and were not heavy in terms of multitasking which was a significant problem filled whether in fact it was made or group would have been qualified is an evidentiary issue which is not enough for her to simply say i'm qualified she has to be able to identify demonstrate that the position is one that she was in fact qualified for the table alone is insufficient evidence or evidence here only to create an issue with fact did your did the state of washington respond to this table we did not know how to be in the modification that you just suggested your honor is absolutely not one that can be created it is an essential function of the pre injury position that she carries a case load or job as a social services specialist three pre injury korea signs that process is to carry cases for children who were already in dependencies she was responsible for visiting them monthly making sure that they were getting all of the support they needed medical educational  reference to something that was suggested and is nowhere else in the record there is no indication of what a natural helper is but more importantly ms mayorga acknowledges that her supervisor r in fact performing the role of natural helper in that ms haggerty was the person who could best accommodate her granted her you've allowed her to have a graduated return to work in terms of hours allowed her to have a graduated return to work in between her accident and her disability separation yes they just did everything they possibly could have to support minute maid or guy in her pre injury position before they moved to re there was a position i don't divide in spokane that was offered to her it was not an expectation that she would necessarily take it and she didn't it was beyond the scope of what she was asking for anyway because she limited it to them out  she believed she was all of the undisputed evidence in the record is that she was not qualified to handle it for the very reasons that she couldn't do her previous job or traumatic brain injury meant that the skills she needed including multi tasking which is something she couldn't do was an absolutely essential part of the relative search zisha so when any situation where d s h as identified a position his mother would still have to be willing to go into it but if she declined a position that met the search criteria then that was her choice and if she declined a position she could also have been reassigned actually that she could have been disability separated but that didn't happen with the step process in which they claim they did everything that they could and there was no discrimination that was that simply isn't the case because you have to look at the entire picture here not just whether they passed each individual step that they declared to be the rules but whether the process itself was discriminatory and we're saying it was and there are several issues of fact very important issues of fact that should leave this court if they did consider all the evidence that would say yes there were there was a trial a bullish move to begin with they started their their search put before they even got rid of or did anything they suddenly come up with the rule that says we don't need spanish speaking people to be qualified for this position and as we pointed out rosa was one of the few in the state that did speak spanish so right off the bat you're looking at what is their intent here what is the intent of this process is it the higher the most qualified person or we can to start changing the rules in midstream here so we can split the gate with more applicants so that she won't be able qualified for it's true that she didn't qualified for the original job but we also showed during during this job search that she did her own job search and found positions within the department which she could have accomplished and yet they didn't want to throw those jobs into the mix they didn't want to say that oh these these other jobs that she qualified for were a valid accommodation and then they claim that you know other people were more qualified or whatever so the issue here wasn't whether she was still qualified for original job but they were supposed to or try to accommodate her to see if there were jobs that were available and were saying the fact that they artificially limited the search over a very short period of time for example they knew that she wouldn't leave her family and travel several one hundred miles to spokane but then they set up a process where oh well let's quickly let's quickly look for a few positions zero up she doesn't qualify for the two that we named and so therefore it's over and it's hard to get a word in edgewise but i have a question that ends who least important to one of the judges on your case in the quite right is it is an employee in your client circumstance intitled to define the kind of job that her employer should be looking for to fill i think that i think that that may be an employer decision your honor but if the employer is artificially limiting that that becomes a question of fact if you have evidence is that's out there that indicates like we said opening it up to non speaking spanish speaking people then i think that it's they they limit they limit it to a very short period of time  they have the right to define the process and if my client chooses a job that the management decides isn't in the mix then it's a legitimate decision that management made that way then yeah you're right management have the right to limit the job search but what we're saying is this is their choice to limit it to a short period of time and exclude you know not allow or to concentrate that search within the geographical area that she wanted weaves open a question of fact is as to whether they have discriminatory intent or not she object to the search criteria used for the  argument i didn't quite catch and i think you are saying she observed objects in the search that that she was allowed to know i'm asking did did she object to the partment search criteria on the two i'm sorry i can't add an answer that question your honor i'm not that familiar with the record on that particular point i thought she did but i can't be absolutely sure it will check the record on that