pretty clear except he did come up with the effect interact the process wasn't followed by my client and therefore felt that the summary judgment due to be approved by the court did find  client did have a disability the court did find that he's able to perform the essential functions of his job most of the problems started in july of  you one question about the disability was there evidence i didn't see it in the doctor's notes i agree with you about the disability and the interference with the at the consist was there evidence that the motion sickness th experienced in the control room was tied just to that disability yes i believe that was in the doctor's notes and also that the agency had determined that based on the doctor's notes that they would have signed him for to from what i can tell from the medical history that the motion sickness is just a symptom of the to the pituitary problem and that it goes in conjunction with that function of the end of consistent major life activity but but this connection is just what i'm getting at because if i if i went in and said i had motion sickness that would not necessarily count as a disability under the act right like you need to tie it to clarified more had the case gone to trial where we do evil to present the treating doctor so that that person could explain the connection is this court is concerned although to survive summary judgment you have to have sufficient evidence in the record already that you can point to that would permit a reasonable jury to draw that conclusion but i think that the court did find that there was enough evidence to show that it was a symptom of the underlying condition and i think that's what the argument of the defendant is that because a motion sickness is motion sickness that how can it be really related to the to a very private you still haven't said what you just keep saying that the district court found that it was but my question is what was the evidence showing the link i can only refer to just the doctors not just the docs envelops and also the fitness for duty where the fitness for duty also indicated that he had different problems when he be the control room because of the dizziness that would be generated by the sounds of machinery by the the wearing of the machines by the screens that he had to review so that even their own doctor had determined that he needed a restriction that would make it capable of him performing the duties for his position now again that was not really the essential function of his job to work to control but i'd like to get back to the interactive kind of an interactive process i had i really believe that there was a breakdown minute after the doctor  agency's director had determined that he needed restrictions shortly thereafter it was determined by agents of the doctors the judge that they couldn't perform he couldn't perform the essential functions of a job therefore we're going to put him on disability leave where and started the problem the thing at the time when it was looking at the restrictions of what he could do what he couldn't do it was really no discussions of what they expected of him outside of we we need you to work in control but the eight they knew at the time that it was only a temporary position but they didn't tell him and so after that he goes on disability and he has to give a report month after month to month and in the report it says it's a permanent disability nothing changed and then we get to a point where i guess he felt frustrated that it's n doing anything and not talking to me we're not just dealing with this issue i'm going to just let him know the job so let me i take it in terms of the legal standard for the interactive process you're saying that a reasonable jury could find that the murder in this particular case your honor who would be the employer because the employer had information that he should have shared with my client that being that oh this is only going to be temporary were an emergency bas that wasn't given to him and they knew there was only temporary had he known there was only ted young man known it was only going to be temporary and he could have talked to his his treating doctor we probably wouldn't be here today because he it was only going to be temporary because let me ask you a question about the process so they said you have to work in the control room and he says the accommodation i seek is that i'd not have to work in the control room and they said no you have to reconcile that's correct so at that point  of goes to judge roberts question too at that point whose responsibility is it to come up with the next proposal to say habit if i just work in the control room for a day at a time and i break it up because i can do it for a day was that mr young man's responsibility or was that the employer's responsibly to come back and say no we need you in the control room but we can talk about doing it for shorter spurts i would believe that the court corrected it that they we need to look at the employer's expectations of what they're willing to do if they're saying under no conditions are we ever going to allow you not to work in a control room that then leaves it up to my client to decide if he wants to continue to work there or if he wants to find a different position with the company so you're saying your client should've made a counteroffer i'm going to get interactive process as a give and take you know they go back and forth your client said what he wanted the employer said no at that point to act in good faith in the interactive process who comes up with saying you know well what about if i just did it on a temporary emergency basis or what about if i didn't do it for weeks straight but i did it for half a day whose responsibility was that i'm not sure that there is something my client could do based on what he believes he'd be reading the mind of the player so the employer should have made that offer and said listen you know what we can't exemption entirely but we'll exempt you for a shorter period that would be a logical step your honor i believe that if there is something that they're willing to do if they also have another position that he could potentially do outside of the control room that could have been discussed with him too i don't think it should have been up to him say i know if i take this other position change my job title that this will be fine because it will be within my type of disability i don't think he had that option i don't think it was even discussed of potentially doing something different don't we thing on the table was our way or the hiring i believe i might need to say some rebuttal certainly unless there's more questions now you can with calcium deficiency to motion sick there isn't it's not in the doctor's notes i'm not sure what counsel is referring to but the record shows i believe that the st time the terms  milling is in the e e o c charge and the corresponding charge the only human rights commission and there's no connection at any point from the two principal doctors who examined  young then that there is a linkage between motion sickness on the one hand and these conditions the linkage if any is between the motion sickness that mr young inexperienced and his placement in this control room which is about twenty four feet i also want to address the premise or concept that council keeps referring to which the record doesn't support that placement in the control room  was going to be a temporary position and we knew somehow that it was going to be temporary fail to communicate that well the fact is that placement is required was  of he reported to miss cramer and brian brown was above all of them simple math seven people three hundred and sixty five dollars days each person had to do it around fo dollars times excluding emergencies so it's it's basically a weekly slotting maybe more if there's an emergency or an absence but we were never told germane point in the interactive process that this three young woman could have worked in the control room on some limited or occasional basis that was  that's that's right we did know that he could work there but at the key point when he went when he left on sick leave and had an appointment with  in early august he his statement to us through the doctor was adamant and categorical he couldn't work in the control room at all dr young woman said that he could then a few days later of his th dr during stated after examining the young man that he was having motion sickness related to the room and jack to during recommended that young would not work in the control room other than briefly going in and twelve until a year later and i believe the council said that somehow the it director process broke down with us but that's not the case brown is not a medical professional he doesn't have a crystal ball he's not a mind reader he attempted at multiple junctures as did our human resources department to find work anywhere in the sensibility when in actuality it was only that one room that was the problem well two things your honor  of floater which is the nd of three positions means that that person comes into the control room as needed on a necessary basis if there's a sudden emergency in the facility because of a fight between juveniles or someone is sick if can't be a sign there so all that he supposedly that would be able to do was work with the juveniles themselves in the living facilities but i want to bring this back to the legal standard because this court's decisions make clear that when it's the employee who has critical concrete information that can help facilitate the interactive process they ploy you must come forward and provide that to the employer so what was the information he should have provided here should have said at some point you know were in the record until the reply brief and then litigate during litigation you know i could have worked in the control room maybe on fifteen minute intervals or for an hour or partial shift or if you really needed me on an emergency basis i could come in in there there was never communicated any case that was on all fours where you have the employer in the fleet going back and forth he says so in a negotiation he starts big he says i want out of the control of my all together and the employer says no you can't have that who makes the counteroffer is it you're saying it's always the job of the employee to say ok we won't give me entirely out of control but i think i could tolerate it for a day it seems to me like it's a given take maybe both parties are supposed to well there is a strain that's true your honor but there is a strain in this court's decisions of cases like brown and reeves where the onus is on the employee a bit more and that makes perfect sense right because the employer can't guess at what medical conditions were limitations the employees facing the employee between him and his doctors as that information and to tie this to something that the judge rover was asking  we can't just focus on the breakdown in communications that happened in after young men stop submitting his status reports around between april and august of two thousand and thirteen we have to look at the period between when young women and the h r officer at the center repeatedly asking the doctors and young men for additional information what can you do how can we help you what are your limitations and this happened again and again and i i got up to august th i think on the record with think it's worthwhile for me to walk through what else happened because it's not just this end period it's every the interactive process begins immediately and it did because within hours of young men leaving work early august and supplying that note from dr during brown asked for additional information the asked for further clarification yet another effort by the chief judge to engage young men in the a director process to elicit some information anything the response from dr young and again categorical you can let you do any job in the interactive process because it seems like the real breakdown is when he stops submitting the reports and in a way i mean if his position is i told you what i need exemption from the control room you know at the disability is and you keep asking me if anything's changed it's like asking someone who's and he also said he would that we would want him to be the last person we wanted to control because he inferring from his words would have been on the floor he want to be able to contact him but your point your honor  the suggestion that because he could work in the juvenile residential areas does does not get mr young in over the hurdle of having to show that he was qualified to perform an essential function and this control room is essential it's the nerve center of the operations it's where people are allowed access to the facility and either s where the people who work there who are monitoring can see what the juveniles are doing whether they're engaged in fights kind of it's very question of whether it really was essential given that it had been a recent change and given that he worked at the center for so many years without having to attend they do that whatever the manuals and no your honor it's not a recent change to occur in two thousand and ten and it occur to years before the events in this case it was not a sudden surprise and it's distinct from the miller case in which this court held that informal accommodation of someone's inability in that case to go up with great ten at the time he came in became the chief to make sure that everybody was doing every assignment that was fomented or triggered by a human rights complaint so it wasn't new it was  there is a case or two cases i believe in the last section of my brief where the concept was that the the initial request for accommodation or during the process it was to they want to make sure that people were able to work in the control room well after he started working in the control room he got sick and mrs kramer one of the supervisors where the agency told him to get out of there he knew what to do then a few weeks later he was approached by kramer again and said i've got some bad news for you they're making me put you back in the control  then in august st a note is provided to the agency about indicating the problem that he's having the note which i think address something that you talked about your honor the note patients having motion sickness related to control room he has recently been assigned to recommended patient network and control room other than briefly going in and out if needed but rather should be placed elsewhere for his job because of lights noise cameras in the room having motion sickness symptoms of lightheadedness so that the motion sickness was basically just a symptom writing this in response to your memory and dated august st my medical note the only restriction i'm requesting is not to work in the control room due to my medical condition of motion sickness i am capable and do complete all other job duties and control however i am in the control center the following symptoms occur painted pain ringing in the ear relates to the head and neck headaches dizziness these symptoms are brought in by the confined space in the control room this is not saying that it is throughout the whole facility this is just dealing with the control room also he had indicated that he's capable of doing work in the living units floater duties or security unit so he's giving them a recommendation and the only thing that they do then is send him for the fitness for duty he's just was concerned a being confined in there over a long period keeping in mind it for fifteen years he only went in the control room three times and then after he gives a restriction he's now working at nine days so he feels it's almost to a point of frustration that he is not going to have an ability to control this is a call manifestations of his disability so getting back to the interactive process i think he did make recommendations they did have some idea of what they could do for him they didn't say he couldn't work in security they didn't say just did live in units they just said control room period so i think that that is an important thing for this court to consider but that said with closing i'd certainly like if this court would look closely at that interactive process i do believe that this court may need to give us more guide and as to what is the duty of the employer if they know information that they can provide to the client to make it so that they'd be able to go into the interactive process where they would say we only need you to work in there once a week and if he says no well that was his choice but i think there has to be some way of knowing what the expectation is of the employer and i think that's what guidance is that we may need from the court is to assist us in modifying a crystallizing what t