we'll call the second case of the day brown versus smith fifteen yeah she leavened fourteen whenever you're ready good morning your honor may have please the court this appeal presents three issues for the courtroom view first a question of law whether an employer may enforce that written job standard set forth  written job description that was prepared by an outside party before litigation and had been in place a long time that's what mayor kevin smith of the city of andersen did in this case the second relates to the jury instruction the district court provided to the jury which included the link in terms of determining what is an essential job function the length of time that a job that a person spent on a particular task we can that was erroneous in this case because it was misleading it was undisputed that the plaintiff mr brown spent and and others mr brown's but no time but others in his position spent a little time driving a bus however the city of anderson and recently concluded it was an essential job function because of the emergency circumstances in which that circumstance might arise and the third issue is whether the plaintiff failed to mitigate his damages where he sought no employment in a related field but instead tried to start his own business well i'm going to ask you about a case that we issued after your priests were filed shell versus smith are you familiar with that yes i am there we set a jury needed to decide whether driving the bus was an essential function of another position in andersen in light of that case do you agree that whether having a c d l is an essential job function is a fact based the written job description in that case however which the court focused upon and its opinion was that and let me get the exact language from the opinion the the job holder quote may occasionally drive and deliver buses to various field book patients that's in contrast to the more definitive requirement in this case for mr brown who occupy the position of supervisor which was possession of a valid commercial driver's license the point of the position and that kind of thing in that the job description is just one factor to consider the court did say that in the case i i would contend that that was based upon a somewhat more equivocal job description a you know there were the you know the length of the regulations in our prior cases including miller against illinois department of transportation have repeatedly made clear the job description is just one factor it's not like in the first amendment issue where job descriptions tend to be given much more and usually despised weight so i have real trouble with this if we reach the  but i'm not sure we can even reach the merits of that question since you're asking us after a trial to revisit a question decided on summary judgment and you know you're relying to do that on  see against she hands which is not easy to reconcile with eunice arm all invite you to do that in a moment but i have a harder time reconciling your approach with the supreme court's more recent decision or tease versus your honor they were relying on this court's previous decision that in the case of the question of law that may be preserved because it doesn't that the sufficiency of the evidence developed the trial doesn't change the answer one way or the other involved the defense of qualified immunity which the defendants tried to argue was a question of law like this when the court said nothing doing it's this that's a it's a it's a you have to look at facts and law to decide that kind of question just as you do here right and i mean in some sense in every case you have to look at facts and logic if you have to know whether a question can be decided as a matter of law when there's there's a you know there  to address the question depends on a very very fuzzy line under your approach as opposed to the supreme court's answer in ortiz our answer is no it is not as clear as and is that as an unequivocal no  and and you know the city believes that that position is consistent with this court's prior holdings if the court determines that its holdings do not survive the decision ortiz then we can see that review is foreclosed here because we are at on the question of law that we are asking for review of the summary judgment motion rather than a post verdict motion but even if the court decides that it can review the district court summary judgment order there remain two issues before the court the first is whether it was an erroneous jury instruction to include to instruct the jury that quote the amount of time spent on the job performing the function and question should have been put before the jury as consideration when everyone acknowledged that there was little time spent by a supervisor performing this function but see the run in the shell again because in that decision we said the amount of time spent is a factor that can be considered it can be considered an at and shall because again of th somewhat equivocal job description of the court found it was appropriate to consider but here that there was undisputed evidence of this in both at the summary judgment stage and at trial that there were exited circumstances which required a street supervisor to drive a bus and every street supervisor who testified except for mr brown testified that he had in fact driven a bus in these kinds of emergency circumstances and that was a very awful lot of people who work for the bus company have c d o licenses really the only well the only people required to have a c d r license with a passenger endorsement are the bus drivers and the street supervisors  the mechanics and the mechanics help for such as mr shell are required to have a cd how to move the boxes on the lot and sometimes on the streets of the city of anderson but they are not they do not have a license that allows them to carry passengers mr brown argued that you know that this wouldn't be a problem because there were extra board drivers who could come out and and that may be true in some cases but it remains the fact that you know first you you would have to pay the extra board driver for the time that would otherwise be done by a salaried employee inspect the americans with disabilities act requires some flexibility for  i don't i don't really have trouble seeing how this is not a jury question at best well if it is a jury question we think in circumstances where an employer has made a reasonable term nation that a job function goes to the heart of the operation it's it's misleading to instruct the jury that the time spent on the job is relevant and we rely specifically on the basket case in which the court held that simply because an employee spent little time on a particular job function did not warrant a conclusion it and i don't in that case it was forty five minutes every day right in here we're talking about maybe once a year and in mr brown's actual functions to be exercised is an emergency situation for the bus breakdown or driver being ill or otherwise incapacitated so you say it was improper to have that evidence presented that he never did it he never had to  perform in this emergency situation we're not arguing that it was improper for him to test his because if there was ever a factual scenario where how much time was spent matter it would certainly seem to be this case where he never did it i understand there were other people say it once or twice a year so i mean if we buy what you're trying to sell really net i mean it becomes irrelevant how much time spent on the job and it in a circumstance where an employer has made it terminations that an emergency function should be performed by a certain employee we do think the amount of  irrelevant and that's yeah and so that's where you just run right up against the case law and that i mean yeah i get that's you not to not you not to mention the regulations in life were number subsection one is the job description which you want to pay your head on a number three is the amount of time spent on the job performing function right and it's it is the regulation and it is certainly relevant in many circumstances but again here the city had determined that the supervisor should be the people responsible for responding in emergencies driving the bus and they were the only people of the bus drivers who had the c b l with the passenger endorsement you know the this this court's own pattern instructions don't include that factor because there are cases such as this where it is not it's not an appropriate factor because emergencies we all hope don't position it should not be on the jury instruction in this case there may be other circumstances and still may be of one of them where the amount of time could be relevant but again in this case with an emergency function that mr brown the defendant heads brief the issue of qualified immunity on summary judgment motion had lost it then didn't raise the issue at the trial and then after the trial appealed the summary judgment issue in the court no i mean in many respects this case is even more clear cut and that because the jury was instructed on the issues that the defendant is now raising it as quote pure questions of law before the court and the jury was instructed on the issue of what a qualified individual was the jury was instructed on the essential function issue so it's kind of awkward to even argue drive the bus in case of an emergency we talked about that quite a bit at the trial if you look at both parties closing statements mentioned and we teased out through the evidence in the case we had to current street supervisors we had two former street supervisors we had a former general manager of the department we had michael my client we had the human resources head for the city we had the person who created the job descriptions all these people were talking about what is this position have to do what it is in this position have to do and at the end of the case they've got a list drawn from the regulations i didn't pull that out of thin air that's from the regulations they've been adopted repeatedly by this court even if the shell case adams didn't decide for now it was dark and cost managed optics and miller adopted even the basic case that the defendant is relying on all of which to list those things and they say the jury may consider you may consider and counsel for defendant and i argue to the jury to close the case which factors they should consider and counsel for defendant said the job description and i said well that's only one part of it and i don't understand a situation where the defendant can claim that a that a instruction that correctly states the law there are two two things to consider whether it's an abuse of destruction discretion whether  jury instruction correctly states law and whether misled the jury well it correctly stated the law pad cannot be an abuse of discretion the final piece the puzzle or the  damages the year back pay was limited but as my client conceded he was became increasingly sick and was fully disabled but year after he was terminated within two or three weeks after he was terminated he immediately started to try and pull campers that didn't require a commercial driver's license again we're talking about the whole stew of the facts and trial the evidence in this case was that my client doesn't have a high school education my client worked for the bus department for twenty eight years pretty much his entire adult life he had become disabled he'd become insulin dependent diabetic into his tenure at the bus department when he was working a desk job so again the district court considered this the judge considered this and we said look he went right into the polling campers he was making money on  that he was getting for the campers but the expenses were catching up with them so if you look at the ledger we put in the letter and then the defense doesn't attack the letters and say this didn't happen and didn't put on evidence that the expenses incurred were unreasonable but if you added up t he number of trips he took he took i think he took sixty three trips over an ten year or ten month period he worked for you know one hundred eighty days going all over the country only scampers he had series of calamities that were you know uncontested he was essentially what i would say was like living on the float he was getting the fees for pulling the camper and then having to pay out later on through credit cards expenses associated with and so if you looked at it he actually broke even or amount other than that my client didn't reason we mitigate but again first of all it's reviewed for clare and secondly i think the evidence supported the notion that this was a good good shopping and then the case we rely on saying that you know starting your own business especially to feel the it wasn't like he started trying to you know these people's taxes although even that i think you could recently say they're trying to after ten months in deciding where like me he was driving  at the trial but again we're not here i'm at work here and after a jury verdict on on an issue that should have been raised after the verdict on the jury instruction we took it directly from the federal regulations  even in a pattern on notice that the the pattern instruction refers to  time was spent on the job performing the consequences of not requiring the person to perform as i said i don't understand how that could that could be an abuse of direct i discretion to adopt that structure so there's nothing further thank you thank happened during mr brown's attempt to work at it and hauling trailers we simply contend that it was not a reasonable medication attempt given his history of working for municipality to require a move i'm not sure is required to move but you know this is the only bus company in town right still a bus company in town but there are you know anderson is in central indiana near other cities that operate you know i think mr macy indicated there were a series of calamities and there was you know you know his inexperience trying to business i think you know showed and was a reasonable effort given his substantial experience you know in m employment to then attempt self employment we contend it was not district court i busy disagreed straight guy goes i have to say i was troubled in looking at your brief that the opening brief on this point failed to address this is the smith case if i'm remembering the name of it correctly which had been the case that the district judge had relied upon the step to the seven that it is not a reasonable effort i understand your position i'm simply suggesting where the district court has hung its decision on one of our cases the appellant needs to take that on directly it's opening brief for the whole back for