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Id. at 18–19. The government recognized an intra-circuit conflict between the burden as articulated in Humphrey (holding that a leave of absence is a reasonable accommodation if it could “plausibly” permit the employee to perform essential job functions upon return, even if such performance is not likely) and the Ninth Circuit's decision in Mustafa v. Clark County School District, 157 F.3d 1169 (1998) (employing a “more probably than not” standard) It also found a conflict between Humphrey and the Eleventh Circuit's burden of proof standard in Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (1997). As to the intra-circuit conflict, the government emphasized that parties to subsequent actions may urge adherence to Mustafa or seek en banc resolution. The government found review of the inter-circuit conflict premature, as only two circuits had weighed in on the burden of proof and neither did so with much analysis.Google Scholar

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