that my client has been trying to get back to work and u p s has refused to allow him when he's able willing to do the jobs and there are opening openings and may the problem from from u b s his point of view is that he supposedly has a and that the they combine positions so washer and loader loader portion of that lease now requires i don't know what it did repack them because the the disk job description  dates of some of the problems here now requires that you lift seventy pounds on a regular basis now because that there is no job description for the car wash any type of combination job of a motor unloader but if you look at the job descriptions that again are after the fact the unloader if that the car wash job slash combo job was underneath that job it would have been listed there and when you look at the end loader job description it doesn't list it and if you look at the affidavits from management they say the only additional thing with these combo jobs is one lifting one lifting task out of the fifty task that someone does during the day that one task certainly is marginal not an essential function of the position and law makes one hundred percent sense because of the fact that you're usually looking at a job description in this case there was no job description for this position that's on one side and then you haven't in our case you have my client provided all the information and again it would lead to the responsibility he had provided he went actually and paid a doctor and said can i do this job and that's what they wanted he did that management said you can come back and then they didn't get back to us he has said yes i have gotten done i think it makes no sense why he wouldn't have done anything but really the crucial issue for this court is whether the essential function analysis is that a jury question and expression in this case there was no job description so you don't even have to really balance you look at what my client said you look at two employees who actually do one does the car wash clerk position she testified there's hardly any lifting it's a lifting a hose for the unloading position not not for clerk know the car wash position this was i don't i don't my perception was that there's not a problem with the car wash position the problem is with the unloading position you know merging portion of the combination position and where and there is nowhere in the record that u p s s pointed to to a statement that he was required to do something at that in the combo job that he couldn't meet because there is no job description there is no affidavit said that says oh he has to lift something so much pounds there's none of that in fact according to their own contract you could you have requirements of the package cardroom position you agree you can see right you couldn't lose from a job without accommodations correct without accommodations he cannot do his job and when you look at the combination  description for the combo job there is no job description so they can't pull a complete they're actually trying to pull two jobs and say that's one that's not what their management even attested to in my client when he was doing the car washing job prior he did unloading tasks because that is sometimes required at you so i'm going back to seventy seven o'clock the bargain agreement you can combine jobs and then some time after that certain jobs were combined and you're saying there's not a combination job of car washer slash unloader now what the question was is is there a are they allowed to compain a guest sense nine hundred seventy seven but where are the job descriptions that show you the combination job and they could be the same two jobs or you won't be able to get it done in an eight hour day because that's two different jobs and what they try to do was part time workers they took that job and made it into a full time job so you p s once you see these two job descriptions you have to meet well no that's not the case it's on a car wash slash u pardon with accommodations he can do what job there is i exhibit age which has been contested he could do any type of clerk job clerks still don't require any lifting i thought you agreed or everybody agreed that he could do the job as a car washer today correct it's a question is if you combine car washer with an loader and if unloaded requires lifting lowering pushing pulling leverage and manipulating women and or packages weighing up to seventy pounds that and then assist others in moving packages weighing up to one hundred fifty pounds that u p s s saying that's the part that's what they believe he can't perform because he can't lift more than seventy pounds above waist level well according to that job description which is again after the fact it's two months i think after the fact yes and to me you have to have it the e e o c manual says that you have to have a prior to the posting you have to have the job description in place a to me you can even look at that that's viewing the facts against me not for me but even if you look at that job description he can do that job because the fact he can lift up to seventy up to his waist in pursuant to their own agreement they say that you're not allowed to left over seventy without help or some other device in effect what you're saying is look this fission vs decided summary judgment there's  s to be allowed to come back to work in open they can positions and reside in accommodation i believe it's an accommodation because of the fact that he couldn't go back to the job that he hel d but isn't the isn't an accommodation you're asking for a modification to the job description well i'm not even asking for that and nor did we ask here because again there's no job description come back i can't come back at the car caught my car driver position but i know there's other positions out there i want those vacant positions which were kids he actually signed them so there is no dispute that he asked for an accommodation your care and if i could just mention the fifty fifty four b which would be the retaliation aspects the last survey reply brief that s filed said that i had to wait the retaliation claim which i have not waived and judge fisher you have the berkeley case the second partly case two thousand and six you decided it which berkeley case oh the i was very thankful someone else had the second book i once had a year clerk that was interviewing with me and he was saying so what kind of important cases  filing notice is appeal just to make sure that you didn't screw up so i think both cases are very instructive and tell everybody what the game is but the how to play the rules let's hear from  job description was in place with respect to an unloader well your honor the job descriptions for the company of essentially not change the requirement the lifting of the seventy pounds so there's always some job scription in place it's actually their other just what was in place prior to the two i guess it was june or july or so of two thousand and six there have been various versions of those job descriptions and they have been they were included in the lower testimony and i believe it was used as exhibits in some of the other depositions but is it in the record that we have before us on appeal well that the record includes references to the job descriptions and the one that is included six but the date is this i mean the that's just the date the bottom right hand corner essential job functions are not changed during that relevant time frame from two thousand and two to two thousand the one that was before that i have one is it a five being that if you're going to have summary judgment there's no issue of material fact and they're claiming that prior to the time that he was told that you know he didn't qualify for this particular job  that he in fact did qualify and you're saying but it shows here on the job description that it doesn't don't you have to put the job description that was the extent at the time that you told him you couldn't perform well your honor the put in the record is what is what did the job of unloader require at the time you told him you couldn't perform well there are other references in the record as to what that shop requires there's the witness is referring to what everyone understands  appellant to please provide medical documentation to show that he can meet the essential job functions of some physician a u p s and he's referring to the jobsite descriptions at issue which we don't we don't we have that the evidence the job descriptions but we also have the evidence of the witnesses themselves describing what the acting jobs actually entails and we have the the declarations of romeo and johnson and other u p s employees stating that in order to perform the loading seventy pounds doesn't say you have to take and be on your waist which is what what he is restriction so he can do yes i understand that your honor which is why i think is important we looked at that at the factual record what the witnesses have to say about that or what the collective bargaining has to say about that we know that the seventy pounds is something that's required to understand if you have to the point is that you have to lift him above your waist i don't know the answer to that and that seems would have to be developed later on which is why is this in the record a says that he all people who perform the unloading position must live packages up to seventy pounds  beyond their waist or at shoulder level or something like that well if we look at business agent oaks declaration he does state that he needs additional medical documentation to show that there is some position at the company and all these witnesses are are aware of what these various positions and tell the point is just looking at this essential job function description where is it that it says that the lifting or pulling etc boxes or items up to seventy pounds will be above waist level it doesn't say that the well there's that section about lifting packages to heights above the shoulder and lower to foot level  appropriate and it doesn't say that you don't need to lift above the waist there there's the the comment that you need to manipulate equipment and were packed as weighing up to seventy pounds with that would include the full range  movement of the seventy pounds so on that in addition to the if you have a package then that has to be lifted above waist level assuming he can't do that isn't there what combination could be given to him in that case good wouldn't be that for those particular boxes most of which are not that heavy that it would not be a problem for him and you would just set those aside someone else to do them who else is going  what what's happening is that when there's an extra heavy package of say one hundred fifty range or over seventy in the union has negotiated for assistance in those cases because all the rest of the loaders are   gauged in loading packages on an individual basis but so there's assistance over seventy over seventy yes and that's the collective bargaining agreement and as far as essential job functions that issue here and the and the seventy pound requirement the union has the ability to to a chip to challenge any of these essential job function summaries an article fourteen section one all of these essential job functions that we're describing the seventy pound lifting requirement must go through their national safety committee national vision and the c v a why isn't the request to have a helper for lifting a pax is over seventy a reasonable accommodation because the union challenge it in this case and that actually was a separate arbitration the seventy pound requirement is what's at issue here and there's nothing on the record the union challenge on behalf of the pallant or in their own right and in fact the union could take in the case to to  complete record as to what's what what does this job really require and and who's you know it's a there's the union as a watchdog is to whether these are truly the essential job functions and the seventy pound is really required and i think  turn for example there's different components to look at there's the written job descriptions that we've just been discussing but this record is replete with other examples of there's the employer's judgment which i've described to you there's the amount of time that a package delivery company back sure i understand well there's the fact that the union itself couldn't think of what this person can do and we also have the evidence the appellate himself emitting in this record that he cannot perform the essential job functions of a package car driver so regardless of what they are we understand that so so he can't do those and he's trying to find something else that sounds like he's diligently trying to find it and he's and the question is has he found it and you're saying no but it's based on something that the only thing we have in the record came out two months after you told him no and then even when you look at that we're not sure it's an essential function that you left seventy pounds above the waist and then when you get beyond that we're not even sure how many times you have to do it and then when you get beyond that we're not sure what kind of accommodation could that was specially when you got teams working on unloading and then i suppose back to just vicious question why just let the jury sort this out it doesn't sound like oh well well judge been asking looked at the the record and there's nothing to refute that this is the requirement of lifting the seventy pounds this is what the the witness testimony is this is what the package car driver the former package car driver himself if allan said look i can't do this piece of that job anymore and it's unrefuted that that same piece is all carries through with the other jobs he's been on and suggests he can now do but he has to have personal experience doing them so for maybe one thousand nine hundred ninety a car wash or but he doesn't know he bit on the car wash slash loader position and he hadn't thought out i guess that that's lowder position has exact same require that's not in dispute here the records very clear that this lifting requirement carries to live up to seventy pounds above the weight is above the waist with an essential function of the car wash or motor position i believe it's the u p s s burden to show that he couldn't perform those positions he couldn't do the essential job functions which requires the nip elation of those heavier weights and taking all the record evidence in tandem that's what judge nasty looked at as as far as the presentation for this court of the record for example to now mention for the first time that there's an after the fact two thousand and six job description and there was never a broader brief before judge in ascii that there's any issue as to the literally that say the job descriptions that's new we have all that we have so much that we that was not included in the opening three for example we have this retaliation confusion that the courts interested in that where we originally judge nasty looked at three forms retaliation and decided in two thousand and nine in favor because back to judge sanchez's question that yes it's your burden to show what it requires and in effect that he doesn't he doesn't measure up to it and in terms of what the job requires were sort of full there's a lot of questions asked at least for that relate to that particular issue and i don't think it's in the record as to what job anymore as a package car driver and that and then the other jobs available and they can have the exact same requirements then they really aren't reasonal of how many patients for him summary judgment when when to when not to file for summer job it just seems to me that you know the divergence of views in this case is because the record blow was based on motions and the record i see your concern your honor her judgment as he did look at this case twice has a decision from from january of two thousand and nine and the only remaining issue was regarded as a claim as well as whether some sort of continue retaliation or possibly pattern or practice he looked at again with a more complete record in his second decision from february of two thousand and ten so there is an extensive record here and judge in ascii considered what he had in most of those records on refuted as far as these key points that we're discussing today about lifting i'm just going to point you to a six six three which i specifically state during oral argument on summary judgment mr pollack only because if you look at the job description which i would note to thinks it's defense exhibit j in the previous two thousand and six they want to say that we weren't talking about the two thousand and six they fill these documents were which were dated nine eleven two thousand and six which is after this position was posted and he bid on it so could you really use it no i don't think you can but number two even if you say ok we can use that cindy to me it says lift lower push pull leverage manipulate so it was in the record and i did preserve that issue for appeal in connection with the positions not only the the carwash combo position but if you just look at exhibit eight alone which is only from two thousand and four there are ninety jobs that had been filled within that one year and they consist of revenue recovery clerk preload or sorter loader and pre load or assist clerks so ninety jobs that were open vacant mr suppose after giving twenty years to u p i should at least get the opportunity to present th