the issues so what we would like to talk about is the underlying facts of this case release the nuances but what we need to talk about first is the construction of the under act and the disabled persons act i e law if the court isn't has any questions on that issue first we my humble opinion we do need to address them because that is almost the crux of them all day on and parse arguments we are of the opinion not withstanding the twenty k letter that the plain language of the act and this ninth circuit's prior holding in leontine versus the california center of the arts and goldman versus i think it's standard insurance company that all of the rights of the americans with disabilities act were incorporated into those two state acts and that the definition of disability of the california government clode was likewise incorporated if the cop panel has any questions regarding that i'd like to discuss them now otherwise i'm going to turn the matter over to my father that's in dispute that he requested three simple things when he became disabled one was a job that would allow him to retain his retirement benefits the second was a job that would be cleared by his health care practitioner and of course the third thing was that he not be retaliated against because of his disability he was aware of the numerous jobs that he could have performed that would have satisfied these three requirements background investigator evidence technician control room they left records clerk and whatnot he met extensively with the county i offered him one job that simple job was jail room officer and he even maneuvered he has benefits to prove that in fact he could do this job in other words they weren't going to penalize him financially to become a g i room officer which means they can do that if they really want courses health care practitioner the way you can do that you're going to be in there with inmates it's going to require a physical problem so i won't sign off on that job that was the only job it but going even a step further if we look at their pelleas supplemental record that they filed at page one sixty four and one sixty five they even record that he could have done any job and that's in the county they were all available he was offered no jobs one job was offered no assurance or apparently no vehicle where he could raise a complaint of somebody tried retaliate against him based on his disability and our feeling is there must have been some job somewhere in the gandhi they could have offered mr molder he was forced to take retirement it's undisputed that early retirement cost him four hundred fifty four thousand dollars no matter how many how many good intentions they say they have they really didn't have any they didn't offer him before beauty dealing with bass and parks two points i wanted to make with respect to bass a lot of the factual findings of the district court below turned out not to be true it wasn't by design or even negligence it's just the fence that occurred in the years that followed the district court's entry of judgment didn't bear out to the evidence at the time they were made based on the record that was then before the court it was your honor we did the krays show indication that the district court indicated that it was not inclined to review the order it was before that court i haven't gotten a copy of the district court's order so i haven't had a chance to present it to you it occurred within the last day or so and i've been hearing for this for this oral argument well what procedurally what effect does that ha warrant remained down to the district court for further factual findings regarding this change in circumstance yes in fact the district court was of the opinion that she was too disabled to work and she could only work with a dragon speak dictate machine and it turn out if given a choice between working in pain or starving she'd rather work in pain i understand what you're saying factually but here's here's my my issue w if a district court makes a decision based on the record that's been developed up to date of the decision that that decision becomes final and it's appealed are only limited to the record up to the time of the district court's decision the correctness of which is at issue and can't come in and say well as it turned out two years later in hindsight we now know something new i mean otherwise and i don't know i don't know what you are asking us to do and yes there are instances that i've been aware of where a change in circumstance has caused the remained of a matter back to the district court for further finding the only one that springs to mind as i stand here as pickering versus holiday quality food that's it two nine three and i'll give the clerk the cite afterward two nine three a third eleven thirty three it's a ninth circuit case two thousand and two during oral argument the a pelleas holiday quality food came to oral argument and said your honor we fixed everything there's been a change in circumstance it's moot well the court this court is not in a position for a factual findings of this court in that respect but i think from a procedural stamper admittedly this panel knows far more about credo indications than i do if the courts of that opinion then them fair enough i really am asking christmas is not an issue that was briefed and i are not it wasn't and that's actually why i was going to suggest the remain and for the factual finding to the district court on this issue if the court believed that she was too disabled to work from the pain or that she could only work with the dragon speak to tape and it turns out both facts just they could not be raised below at that point in time because she was just standing the dispatcher current job there was no way for us to presented any sooner that perhaps that warrants a further remain and to develop the record allow for their belief and allow for their testimony and evidence so this court can make an informed decision that's one recommendation with respect t was adopted from the government code sections which limited major life function instead of substantial limited major life function then parks presented evidence that no one well these presented evidence of the discrimination of county of improper job criteria failure to promote failure to hire failure to employ the disabled individual disabled individuals the district courts to determine that that was a factual finding under the judicial notice that was inappropriate under judicial notice we didn't ask the court to take judicial notice of that as a factual finding that was a county discovery response that was based on county testimony and county documents that were verified it wasn't a factual finding by the court it was it was that she dished on notice of a count admission that was in court's own records and that's what if you overcome that hurdle then the discrimination that parks suffered comes in they don't hire disabled they don't employ disabled they don't train disabled they don't promote disabled and with that i'll see if the court has any question thoughtful decision fully supported by facts that are not contested that is not one single fact that judge carlton deemed undisputed has been challenged the other two planes fast and parks that motion was heard before judge leavy as judge lee similarly evaluated a great deal of material  similarly preparing a thoughtful well reasoned decision addressing all of the issues that have been raised here as they were below and determined and granted motion for s judgment for the county again there are a series with respect to both those plaintiffs bassed and parks a series of facts that judge leavy deemed undisputed that have not been challenged even under the most accommodating and sedentary of circumstances what is your position with respect to opposing counsel censorship that she has either improved or decided that she's willing to suffer interpreted the facts as of the time the employer acted that something that happens years later turns out to be completely irrelevant to the employer's decision whether it was discriminatory or permissive law or slightly otherwise how can you manage this this whole process you have to manage it based on what's on the ground at the time not on what's with speculative and in what if what if the additional evidence  somehow related to that time period though i'm just trying to tease out the sort of procedural question for myself here thinking you know through so let's say there's new evidence for some reason concerning the time period at which the employer was acting just newly discovered for some reason but it still remains back what much should happen in that circumstance that might be the subject of sixty the motion which i think was attempted here denied by by as to what evidence existed at the time that the decisions were made this is only after the fact two three years after ms vast applied for and  receive disability retirement after his vast applied for and received social security disability retirement other words that all happened at the end of two thousand and two in the beginning of two thousand and three now here we are in two thousand and six and it's being presented well she's made i think is i understand and of course i'm taking this at face value she's made a miraculous recovery and now can be gainfully employed somehow to open up this case and subject the county to more litigation is not warranted by the court simply this court does have the jurisdiction i believe to do that and then the remain and it otherwise there would be no find ality in any case such as this there's no there's no presentation as to anything erroneous at the time of the employment decisions if it were ms bass she made representations to various governmental entities about her status at the time being unable to work that's why she received the the benefits that she did disabled under the a t f and that's the supplemental excerpt at page one sixty two and i'm quoting from counsel's brief quote mold down freely admits that his physical abilities  was regarded disabled from a broad range of jobs the county offered him a job mr hubbard also said that the doctor i believe he said  that he was unable to perform the job because his doctor said that they would be in may contact there was a job that mr maule down wanted it was a bail control job accounting worked at rejected the job because he didn't believe that the county could give him proper assurances of retaliation even though the county offered to provide those assurances in writing and again that's and that's in the record that taking half a salary tax free for the rest of his life he took a job as h back fellow he's been working ever since there's no duty to accommodate but the record shows that there was an attempt to find him alternative county employment a vacancy this is was was even one step beyond that because you can't you can't create county view to know if you can if you create a job is not a arguing and appreciate that you're on as i have two issues that i'm going to address and i'll be very brief regarding pelleas council's assertions of the first pertains to  judge carlton's well reasoned order at page two fifty nine and it states plaintiff refused we're talking about the dr now is a jail room officer nothing else out of control officer not a jail room control officer but a jail room officer finding plaintiff refuse this position however because he was not satisfied with the assurance is offered to him regarding non retaliation that's absolutely assurance that could never come against retaliation for his discrimination or did his doctor say well you can't do that again with respect to basle do with bass first and then parks with respect to bass dr hazelwood is one of the best doctors in the area but he can't predict the future so i never i agree that the employer's long knowledge when making a decision should probably be limited to what they actually knew and not the prospect of future events but i also never said that her that she miraculously improved as the as the defendant  i believe her situation has to remain the same second i also told the district court at oral argument that i thought she still wanted to work he said if i offered her a job this is in the excerpts of record if i offered her her old job right now would she take it and put some hemming and hawing because i didn't think the district court could give her old job back i said yes she wanted to work so it was before the district court second there is a little known and used class of regarded as disabled and this was also raised before the district court and that is disability where an employer requires one hundred percent return a one hundred percent health before and employee as a disabled individual under the a d f but notwithstanding that i agree that employers are not required to provide reasonable accommodations to disabled employees who are regarded as such under the a t f but under california law you have to keep you have to keep your eye on the two distinct standards both california law and the eighty a have the same rights california section fifty one f and fifty four point one f made sure of that and both statutes have the same rights so when you're looking at a disabled person and looking at their rights under the eighty eight you have to look at them as the rights of a disabled person under the eighty eight and the rights of a disabled person under california law and under the rights of a disabled person under california law which is only limiting parks was disabled he was actually disabled it wasn't regarded  argue that it clearly plies based on the plain meaning of the actual use of my question was there some procedural or legal reason that precluded these cases being brought under for me yeah no one would take deputy mole down deputy parks or