and the reason i brought this to appeal is the continued propensity of district court judges to grant summary judgments on  action like this there is clearly issues of fact here going through some of the arguments i mean the st the st argument with respect to an issue of fact is when clark county initially terminated mr little that my and clearly there is one thing that the supreme court recently brought out in tolling versus cotton is you're supposed to be crediting the evidence for the nonmoving lottery that's certainly true but with respect to the st terminations do you do you can test that your client made any prime aphasia case for disability that with respect to the st one or the doctor said he had nothing wrong with what what what what on what basis did you make out a prim doctor that said there was nothing wrong with yeah but clearly that was a mistake i mean the at that point he had been on medical leave unable to do the job for a year i mean it's crazy for the district judge and the defendant to try to make an argument that just because a doctor mistakenly said he was not disabled that he's somehow not disabled i mean i cited twenty nine and thirty two and that clearly says you don't even need medical evidence you know you don't but if you put it in the county not entitled to rely on that now they what they did if i recall correctly when the doctor a knowledge he was incorrect they immediately brought him back in i mean they and they they can do whatever they want but here is a county that is medically separating the the individual and then on the other hand they're saying oh by the way we're going to rely on this doctor's report that from their observations and the fact that they're medically separating the individual they should have clearly said hey there is something wrong with this medical report they didn't do that and again the district court just agrees with that and your argument is that they relied in bad faith on this  factual scenario they wanted to find a way to terminate miss still is and they did it i mean yeah man added i say if that was known a medical report and the founder of the most they knew then i mean they're the ones that medically separate him for this disability so for them did to me in to say oh we have this medical report that says he's not disabled i mean again i'm summary judgment you're supposed to credit the nonmoving parties facts and that's in my even opinion you know if i'm on an monumental that hey you're medically separating the person you wouldn't be doing that if the person was able to do their job i mean with respect counsel i if i understand the facts correctly yes he did have a previous problem but at some point sometimes people's problems get resolved and in this case looking at the prime aphasia case the county got something from this doctor his doctor that said he's fine so why would the county not based on those circumstances be entitled to say ok whatever it was it's all taken care of now soon as they found out there was a mistake they meaning they brought him back but let me ask you this then why if that's the case why are they medically separating him in the st place if they that at that point if if you're trying to say well they have a medical opinion i d's i disabled why why don't they say at that point ok you're not mad i take your point counsel but let it whatever it is pick some some illness whatever it is your client has access and the county treats it that way and then you get to a point the doctor says x is gone i mean that we know you know there's nothing wrong anymore aren't they entitled to rely on that well again but again we're looking at this in the context of summary judgment is what i can get you know that so so they're able to say that but again when we look at it in summary judgment context you need to credit or the court needs to credit the evidence that shows that he wasn't disable it i mean that he that he was disabled i mean they can't just selectively look at one side of the case which is what was done here and  by ability of your client you know what i mean the settlement agreement the argument there is that the county was acting in bad faith i actually cited a case that was actually heard in this court where they did the exact same thing and in that case the client did sign the agreement and then i brought that up on appeal and their argument was he waived all his rights as to the set because the settlement basically waived all the right so here i told the client absolutely not do not sign that settlement so when he refused to sign the settlement then the county one i had with that the one i had to re instate the term a nation an issue and then i think they saw what they were getting into and then they ultimately reopened the term and they they were sending the terminations in and then finally did go through the process of trying to accommodate him with alternative job which our argument is there's there's good evidence here that even with that they didn't really they were just going through the motions they were going to the just go to that nd job the i think they call it the airport  it's it's i understand your argument correctly you're basically saying that a reasonable accommodation in that setting would have been an effect to put what would normally be an important part of the job on somebody else and your client i think it was had to be able to lift certain number of pounds that was more than your client should be able to do but that was an important part of the job so i gather you're saying that in order to be a reasonable accommodation with respect to this other job in effect you couldn't do it but they would say was going to do it is that correct well with respect to that i mean the thing you get in these a common a commendation case it's then poirier sending the parameters on you know what the essential functions of the job was and what not and i think there's good evidence again if you credit my client's evidence he was on the job for many years and he observed the airport escorts and in his observations he saw that yes they had some lifting but again the a t m makes clear that you're supposed to if it's a non essential function you're supposed to accommodate that non elimination function i understand that this is a county we're talking about correct counties have certain rules they're really hidebound their civil service an effect they describe these jobs it's all written out once required so you're saying that based upon your client's personal observations over the years you can ignore what the official description of the job is and say well yeah it says they have to be able to live sixty five pounds but my observation is all they do is sit around and smoke marijuana and talk about bars is that controlling in a a summary judgment well my response to that would be again you in a summary got judgment context you're supposed to credit the opposing evidence and in my estimation yes a reasonable track of fact finder could come to the conclusion in support of my client's position in that time i want every whatever your clients and however unbacked it was except for his personal anecdotal evidence controls and for purposes of summary judgment i'm not saying it necessarily controls but they classified it as his speculation this is not just speculation he observed over a number of years what this position did and so i think it's it's you know i it's and it sounds to me like given your understanding of summary judgment there would never be a summary judgment because all someone would have to say on opposite side is you know they had no other evidence you know in my experience i've seen that people do x and y o and no that's not the case at all but i mean  have to do is look at statistics in the federal court amounts in summary judgments that are granted i think in nevada it's like seventy percent of the cases or whatnot so i you know i when i go to law school and the ice age almost nobody got summary judgment in state or federal court they were always overturned now it's completely flipped you know now it's completely flipped but that's the law now you know that's the way the supreme court interprets it yeah but i mean also on this this last trying to find another job even assuming that the airport and scored was not a job that he could do with his disability they they made no more than a cursory search of jobs but i thought your client agreed that that was the only job that was available in the time frame work that was available that's the only job he could find they didn't file a case so he found that job and it turned out he didn't qualify for that job without any reasonable accommodation which was basically to have somebody else do the job right but i mean with respect to this very this accommodation looking for another job i've had almost no cases where the employer actually found alternative job justice which is now he's now on the supreme court when he was on the th circuit he wrote opinion accommodations are all about enabling employees to work not to not work i mean that's what we're trying to do here try to try to keep the individual working and what what's done was just the opposite just the complete opposite they were doing everything they could to have them not work and ultimately be able to terminate those at the burden on your client to show some job they case in this circuit dark where where the court held that even after the person was terminated they were supposed to look for jobs that could have come available so that's part of our argument here  meaning the employer why they meaning the employer correct yes all right because he might say yeah i'll save the remaining time thank you thank you through each of these schemes chris claims chronologically and in detail to explain why the district court's granted summary judgment was correct but if there is some specific area i certainly have one i was shocked by the district courts awarded one hundred and eleven thousand and three one hundred and thirty one dollars and fifty cents in attorney fees on what basis do you justify that in this case your honor the plaintiff brought a state law claim it was his choice it was his litigation choice that was a tactical decision on his point on his part that that choice comes with some consequences in this case it was the fact that my use of nevada civil procedure rule sixty eight on the formal offer of judgment allowed me to offer to let judgement be taken against my client and if i ultimately prevailed unlike federal law as a prevailing defendant i could recover costs and fees now it's one of the very few procedural a client like mine has to protect itself from litigation like this which i think your honor correctly observed i would is contrary to how mr ballard band phrased it he phrases his cases appeal as a crusade to stop district courts from imposing summary judgment i think it's just the opposite it's an exploration of the lower limits of what's required to sustain a case well let's let's say so little of what let's get into at least what i understand your argument was which was that even though virtually all the work idea i don't think you can it's just one of those unique cases where the the plaintiffs choice to bring in maintain a state law claim that was ultim but intertwined in conflated to such a degree with all of his other claims that i have to spend all the time and energy and effort to try and unwind that unwind those two things explain them to the court distinguishing defray inch differentiate those  that i can explain why judgment as a matter of law was required in everybody in every case so i'm here we went back in the your summary judgment on the state claims and in that you spent two pages i would point out one thing and that is that you know the fact of the matter that the summary judgment argument addressed that claim in that fashion is is not the same as saying that how much time was spent a little geisha between  analyzing and investigating and trying to understand in articulated that being one thing i would i would also concede though frankly that that certainly a lot of the time was spent in isolation on one claim or another it's not my  argument that i spent all of the all of my time on the worker's comp claim it's just a fact that it was in or twine with the other and so there's only way to mostly always rental bill for both you obviously a very smart lawyer i'm sure do a great job for your client but it just as like my colleague it seemed to me that the state law i claim was just kind of a little puff thing it was virtually nothing to it took very little to because if it was half of the total bill was one hundred and sixteen thousand at the very least wouldn't half of that amount be attributable to be a d and therefore not recoverable as attorney fees based on your analysis i mean i assume you would have to go back and look at the m r i at the just argue when let's take your half are you and i correct certainly the district court had discretion in exercising its discretion once properly applying the m r o case and the baby factors that are required nevada law to decide what was a reasonable appropriate to that case and that's that's the standard of review for that award is whether it was an abuse if the court and i could i could understand took the view that the district court should have made a more rigorous analysis and to differentiate those two claims i can understand that and agree with that and frankly as i mentioned in the brief that that that tourney's feel ward was never something my client was counting on recuperating it was just simply something we tried to use to avoid that the cost fees time and emotional capital required to litigate defend yourself against claims like this and in this case it worked out to our advantage and and certainly we we tried to use that to to end the litigation for this people as well which is you know right or wrong it's a tool and it's there and it's one that i use on behalf of my client when i can because and i wouldn't i this is based upon the state law rule your knowledge of course there is no eighty a right to get attorneys i do acknowledge ok and you say claims what are you suggesting there is a i think it is as close to frivolous as as you can get with a claim like this the the claims included also not just this worker's comp retaliation claim which was the basis of the the fia word against him but also rice national origin discrimination claim which he also abandoned at the summary judgment stage both of which he described as throw in claims throwaway claims  i don't know that that characterization shocks the court as much as as the feel word that came down but i can tell you that from the defendant's standpoint you don't have the luxury of disregarding that claim is just some kind of throw away claimed to be nobody witnessed that the state or the employer facilitated his worker's comp claim anyway it was approved apparently he scuse me was extended  light duty status until it was exhausted he want on unpaid medical leave after that because that's a standard policy in practice at the end of a year they don't know what his status is or why he's not back to work they're the ones who initiated the interactive process invited him to apply for an accommodation under the a when his own doctor submitted paperwork the said he did not have a physical disorder requiring an accommodation it was the county's through its office of diversity the contact him directly to explain that deficiency and to afford him an opportunity to supplement which he declined to do he mentioned during that conversation with the director of the office of diversity that he had a lawyer the very next day the office of diversity summarized that conversation what they told him about the deficiencies in his application in a letter presumably mr lasagnas shared that with his lawyer but and neither he nor his lawyer in the next six weeks bothered to say that was a mistake or we'd like an opportunity to submit something different or anything cricket's so six weeks later they moved to terminate him and and there's nothing wrong with that they had engaged the interactive process there's no evidence of disability at that point or reasonable accommodation so the st germination in and of itself i think there was just no facts to support it yet it didn't stop them from bringing the claim the argument with respect to the grievance being bad faith is just an extension of the st terminations but i think it's a really a red herring of immense magnitude it's a case where he filed a grievance through his union the grievance when you look at it only said that the basis for the grievance was that he'd been medically separated without notice that's obviously wrong he had six weeks plus to know that they were going to do that if you didn't get is eight paperwork and so the basis of the grievance itself was defective the only relief he sought in the grievance was an opportunity to apply for early retirement benefits through the state so that's all that was issue at issue nobody ever mentioned or declared that he had a claim or even thought about it not to mention the fact that the settlement agreement that was proposed and only that proposed was negotiated between the county and his bargaining unit representative the sci you so the fact that it included a general release of claims in and of itself i don't think can support any type of inference of bad  faith no reasonable juror could conclude otherwise i think the district court was absolutely correct to move right past that and i don't think it would be any basis to send the case back to a jury on that basis which then just brings us to the nd terminations and once once he submitted information well after the fact that his doctor was saying i made a mistake before the county immediately reinstated him back to the date of a separation specifically to reopen the interactive process on the eighty eight which they did commissioning a functional capacity evaluation to fully understand his limitations and gauge and directly to update his knowledge skills and abilities to see what he could and can do the f t e came back and said you can't perform the essential functions with or without accommodation that fact disqualifies him from that job as a matter of law he does not contest or dispute that so the only the only obligation left on the employer at that point is to see if there's a reassignment position the law only requires well that the statute doesn't say anything about how long you're supposed to look for that you look at the e e o c is guidance on that and go to the dark position or dark case and it indicates that the county should look for a reassignment position for a reasonable period but it doesn't dictate exactly what that period is and that's what happened here we look for any other job plan besides this escort job there were other jobs available that the county reviewed because all of that is public information and as part of the interactive process they  specifically where those jobs would be posted so he could look and make his own determination self the county looked at those jobs they analyzed those jobs and they concluded that he did not qualify for any of those jobs that were open and available at that point time because of his does ical  imitation when mr lasagna identified the one job that the county had seen and considered that he wasn't qualified for and they looked at that thought the same thing but they forward it to the office of diversity anyway for a full evaluation that claim or over the of that job relative to his functional capacity evaluation and the evidence is undisputed that that was a pretty exhaustive analysis terry mccarthy from the office of diversity not only looked at the functional compact capacity evaluation compared the job description but also the functional analysis job analysis itself and called the department and spoke to the person who runs all those airport escorts to confirm just the just how often and to what extent the physical requirements actually existed the essential functions of that job he confirmed included not just the lifting and exam in addition or in excess of thirty five dollars pounds but also sitting for extended periods of time or standing for extended periods of time it's just the nature of that job it's a flexible job that has these big requirements so that it's not like that was something that was just glossed over the tell me when you i'm sure you know what your answer is but when you address your opponent perspective that his client said well i've i've observed these airport as courts for years and you know what the job description says it's not what they actually do and i can fulfill a part of a reasonable accommodation what they actually do what's your response to that i mean i just don't believe that that is evidence from which a reasonable juror could conclude that that is in fact that that is true that they could find and impose liability based on an anecdotal observation of that nature from someone who should have been working in a different capacity during his workday not taking some kind of i don't know what he was doing and when i when i asked him during his deposition about that observation he didn't really have much to say by way of found a you know i spent four hours out of every day carefully documenting what airport escorts do there's no evidence like that in the record it's just simply an anecdotal observation and a self serving one of that and then in something that the district court could decide at the summary judgment level as opposed to before a jury as you just mentioned absolutely absolutely and i think that's one of the key factors of the summary judgment analysis that shouldn't be lost is that district courts have to make some determination of what a reasonable juror would find and they do that by by considering the nature and quality of the admissible evidence and when you look at the nature and quality of the admissible evidence in this case there's just insufficient amounts r just briefly in rebuttal because i know i don't have a lot of time with respect to the attorney fees and i didn't get to really mention that much but that you know and as i stated in my brief there is their argument is just to get around the supreme court case in christensen garment versus e e o c where the court said it the action had to be frivolous and what not to get attorney fees but the statute itself in th be factors says that you have to find the decision to reject the offer and proceed to trial which is grossly unreasonable or in bad faith here we didn't proceed to trial and we dismissed it prior to the summary judgment also i think a big factor is with respect to the offer of judgment it included all the claims if it only included the state law claims my client would have accepted that five dollars but there they include all the claims so i mean i think there's a big discrepancy there in it and then just on a couple of other arguments just real quick  know with respect to this why did sure you would do this alternative job the airport it's court i mean one of the one of the main reasons that you know if you have a judge deciding a claim on summary judgment on the factual issues you're going to in my experience district court judge is leaning towards then ploy or for whatever reason so i don't think that my client should have factual issues decided by the district court judge they have their right under the th amendment to have a jury of their peers decide and i disagree with him that a jury would in a jury thinks a lot different than a judge and i think it would be reasonable that they would conclude that this alternative job was available or that there was other jobs that they could have looked at clark county is one of the biggest employers in nevada they have nine thousand five hundred employees they have thirty eight departments i mean a jury is you could very easily conclude that they did not feel their obligation but what what possible relevance is the size of the county have to do whether or not they fulfilled their obligations that the fact that they were looking for alternative job if it's a big employer they have a lot of alternative jobs that they could have found and they only look for thirty days they had they had two years leading up to the initial even looking for the job they could a look at three jobs and dark they indicate even after the person's terminated you could look for jobs and but again with respect to the initial determination i think that alone there is clearly a issue of fact there  with respect and then having a mine leave for a year and still conclude he was not disabled and that alone would be a basis to deny summary judgment here so with that i'll submit and all right thank you very much