this was error because under macand inversed nashville we know that after acquired evidence may not be used as a complete bar to liability in the distinction made by the district court in this case that after acquired evidence result was exactly what happened in this case the grant of summary judgment based solely upon the unknown evidence itself here's my problem with the case this is a tricky case because the requirement for a bachelor's degree which is a fairly standard requirement and you do the sort of the job description is typically a placeholder or a surrogate for general education general sophistication ability so is not one of these placeholders for something else and she is not qualified in a different sense from the ordinary not qualified because she didn't have a bachelor's degree so her lack of qualification is a different kind and i'm very sympathetic to the argument you can't sort of search around in the record you half way through litigation you finally signs up and you say ah ha you didn't have that when in fact she was perfectly capable of doing the job and she did a fine job how do you how do you how do you how do you fit this of the much more run of the mill case of sort of rummaging around in the record and finally finding something that she didn't qualify for in the job description well i think in response to your question about whether she whether tracks wouldn't be able to get paid because of her work i think the record reflects that tracks so that pursue it through its contract with the government there is some requirement that technical writers have a i know there it that question is unknown i don't think tracks put forth any evidence regarding whether they got paid for her work despite the fact that she worked in this capacity for two years performing her technical writer jobs but no one during her two years of employment from tracks ever suggested that she was unable to do her job an agent will to do the essential functions of her job unable to bill for her time was one of them is to maintain a security clearance that presumably tracks would have had to do something to confirm that she was able to work according to whatever its security clearance background check was  and there's a whole list of other qualifications but i think it's far as the regulation is concerned the time for tracks to performed this this inquiry into whether miss anthony was qualifications which may well be the case here what happens well if it is that employee fired because of her inability or lack thereof of having the qualifications nobody loses this is a case where i gather is conceded that she pretended to have the qualification she also says that she it was given permission to have a to have the job despite the fact she didn't but i get out as i'm reading here the blue brief i gather i conceded that she misrepresented her status it is what happens in that case according to me canon is that the plaintiffs doesn't lose her case she suffers by way of her precise and what instances it does the operator doesn't operate so the mckinnon proposition the way that is cited in our brief and the way that i'm arguing that applies is that it cannot after acquired evidence can not operate as an absolute bar to live billeted and in this case that is exactly what occurred is that with with in the absence of the after acquired evidence the district court relied upon there would be no summary judgment and tracks as favor and anthony's case would still move forward towards trial isn't the fact that mccann and with a da and and i don't think it's a factor because in other title seven cases in an eighty eight dollars typically in a prima facia case that employee is going to have to demonstrate as part of her claim that she's qualified to perform the job and i understand able to do the job i think it does think it does and the the qualification requirement is no requirement that simply attaches at the time the there was never a dispute as to whether assignment position right yes so she was in communication with the human resources department and there were multiple times and when she requested different accommodations such as being able to work from home or essentially at any accommodation and tracks is response essential he was that she was unable to return to work unless she could confirm that she was on her percent cure c i thought i'd start with just a couple of points from that you asked the players counsel the cortege i mean justice judge flesher you talked about the very important requirement that the individual have a college degree but mccann and doesn't talk about important versus unimportant requirements what what mccann looks at is the objectives of the statute and how can we further them per the objectives of statute being the importance of enforcing anti discrimination laws encouraging victims to come forward and not having to worry that their entire lives are going to be put under a microscope by the defense looking for some piece of wrongdoing whether or not they even did something which actually a defendant here admits it does  also that important public interest be furthered that said employers also have an important have important interests not wanting to employ wrongdoers so what mccann and did was it balanced the various interests involved and that would be the employer's interest we're going to limit relief we're not going to or potentially limit relief we're not going to allow after acquired evidence completely be a bard's a liability but it will effect relief and regardless of how important her unimportantly employer didn't know that it was looking for important information when it started looking in the record it was just looking for something happen to come up with something important regarding mental let day i think  arguably does take over there but if the court thinks that mental ed pace continuing has continuing validity it's important to note that number one the evidence there went to after enter functions not to some other requirement and the the court concluded that the evidence might indicate that if the in that individual did this job she might be a direct threat to  herself it wasn't just that she didn't meet she couldn't do the essential functions no she would be a direct threat it's also a reviewed under an abuse of discretion standard because the court actually the district court let it go to trial which is not saying it's absolute bar to any liability whatsoever and lastly the court then said well assuming we'll have to send it back and we'll look to see whether reasonable accommodation is needed so the court wasn't even thing ok this clearly shows she can't do the job it was saying if the evidence shows she can't do the job well let's see if she can do it with a reasonable accommodation so it's very different from virtually all of the after quite evident cases that we see these days and i'd like to mention that this is the st time we've seen this particular fact pattern where an employer is in a district court is saying that that after acquired evidence of qualifications not  functions of qualifications is a complete bar to liability in an eighty eight dollars case that is since the judicial struggle cases back in the ninety's which the supreme court brushed aside in cleveland mean i would request that the court look at that the claim that's being raised if it's something where the element that the employer is raising is the cause of the employer's decision like it was in johnson or like it would have been in bates but of course the qualification requirements are are paramount and to respond to something that the chamber we're not saying that an employer can't have these requirements we stand by our right wholeheartedly of course an employer can have all of these qualification required and they can insist that applicants meet them and they can fire people who don't meet them but in this narrow circumstance where after acquired evidence is involved we think mccann and should control oh thank you you it please the court my name is scott hagen and i represent apple e tracks international corporation your honour's title one of the a d n a unlike other federal employment discrimination laws does not prohibit all discrimination in employment against individuals with disabilities but only qualified individuals with disabilities since the plaintiff in this case sunny anthony is not now and never was qualified for the position that she held at tracks she was unable to show that she was a qualified individual with a disability and and summary judgment was properly granted for that reason this is well established in one circuit law this court held in where versus t century fox the plain language of the act speaking of the a b a thus allows only those who are qualified individuals to bring suit and the court further held in bates versus united parcel service that under the eighty a the employee bears the ultimate burden of proving that he is a qualified individual with a disability and that your honour's is the key distinction in this case we're talking about a statute that just has a requirement that is on the burden is on the employee to prove that he or she is a qualified individual with a disability and that qualification issue is not found in these in these other statues for example in the mechanic case the age discrimination statute does not require the plaintiff to show that he's qualified now as part of the analysis of the employer's intent which is what the mcdonnell douglas burden shifting formula is used for the point of usually has to make a showing of qualification for the job because it's logical  evaluating circumstantial evidence to look at while the did was the employer motivated by a wrongful intent so you show i'm a member of the protected class i was qualified for my job and i got fired and and that raises an inference potentially of discrimination but that's not the case under the a t a i under the eighty a there is an actual statutory requirement of proof that the individual is qualified in order to even come within the but that's your position yes let me say st though your honor that we would contend that we did engage in the back and forth but to answer your question doubt is a separate question right but to answer your question that is the requirement of the act in order to have to have that obligation to have the right i guess under the for the employee to have the right that interactive dialogue they have to be otherwise qualified so the statute it just doesn't protect individuals who are not qualified for the position they hold or seek  background and a lot of job descriptions have all this kind of boilerplate stuff that the employer may not really care about but it's right there in the job description and so i think we're going to this is a can of worms well your honor i think th the the incentive is already there the i'm the court stated in mccann and it was basically the last thing in the opinion where the court said you know it's possible that because we are allowing employers to have the benefit of using this wrongful conduct at all because it does go to the issue of damages after mccann and that this will incentivize employers to you know abuse the discovery process was the argument it was considered and the court said well you know we recognize that but we believe that there are other remedies ways procedural rules the courts have to deal with that but in the interactive process she could be qualified for other jobs say that did not require the bachelor degree requirement and and she could be qualified for those and yet you didn't you know jackson in gauging that to see if they could shift or to another position well the beginning the beginning point of the analysis though before you have the obligation to engage in the interactive process isn't that the employee has to be qualified for the job she holds or seek sir weirdly find that in the statute it's one to eleven to be five a and i'll read it to you your honor it says as used in subsection a of this section the term discriminate against a qualified individual on the basis of disability includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual so you still have this is it clear position there are qualified for me at the time you're thinking she's  qualified for a technical writer position and she's asking she's saying well there's other things she could be resigned to that would necessarily require her to come in and she's qualified for those positions well the response to that question i think it's answered by the statue well that the response of the website what you read anyway right the response to that question is that you have to be you have to meet the basic qualifications for the job that you hold or seek there is no application for a job other than technical writer one and require an application in the interactive process or just a request for the accommodation well to have the duty to enter into the interactive process the employee has to be otherwise qualified as the statute says i mean seriously if you had the obligation to enter into the interactive dialogue with with anyone even if that employee is not qualified for the position they hold but if there is a job out there somewhere in the company that potentially they could hold then there would be no end of the obligation you would always and the me and the requirement of qualification would have no meaning in that particular statute word says the employee has employee who's disabled is only protected only comes within the ambit of the act if they're qualified and that's pretty clear that that you know there's this the regulations set out that you have to meet the employer's requirements you know the basic license scene and educational requirements and then and then also you have to show that you're capable with or without a reasonable accommodation of performing the essential functions of the position  tell the court that when the application of its regulations would produce a policy consequence that it doesn't like in a given case the court should simply ignore that regulation ok so help me out give me the language of the regulation that we're talking about so it's there i am ok now what part are you thinking people here so it says the term qualified with respect to an individual with a disability means that the individual in this is the st requirement one satisfies the requisite skill experience education and other job related requirements of the employment position such per individual holder desires and two with or without reason accommodation can perform essential functions of such position so here plaintiff's case falters on that st requirement so that me ask you so this is where i get the idea that maybe the interactive process reassignment doesn't require cation for the job she holds because it she may be qualified for the wee assignment position she so to be frank i was the chamber wasn't necessarily aware that was part of that case it didn't understand that to be part of the case i think that are you raised if it all only at the very end of the reply brief i'm not sure that essentially read this regulation and applied it according to its plain terms and it said that the reason the accommodation requirement which is where the interactive process comes from that only applies to the nd set of requirements imposed in order for plaintiffs because i so if someone doesn't have the necessary experience education or other job related requirements there's no need to provide a reasonable commendation according to johnson and this court's decision rather than the need to provide rea accommodations applies only to whether that individual can perform the essential functions of that decision so i think that may answer your honor's question just take it take a step back and as far as the record says here and as far as i'm aware there is one that this individual desired to hold that position required a college degree plaintiff here did not have that college degree as a result she was not qualified she does not become qualified since simply because she it turns out the person actually does just as good a job as an awful lot of college graduates a lot better than you know she's really good and now we developed a disability and now she wants to have the interactive process and now you discover it's set out in the job posting or what have you that there must be a bachelor's degree that is a qualification employer's entitled to impose that off occasion now in some circumstances even after the fact and even though during the interactive process period the employer the employee develops and just disable in disease and the employers as ok you're can't even though the law would require the employer to engage in the interactive process i'm just asking you to assume that those are the employer had sort of a general policy of some sort of refusing to gauge an interactive process there might be other met remedies available so a qualified individual who's discriminated against in that way could bring suit or the e e o c could bring a pattern or practice claim and position description at issue here one of the minimum qualifications was being well versed in microsoft office suite so essentially under tracks as logic and under the district court's holding if for instance it was revealed at some later point in litigation that anthony wasn't well versed in power point or excel and tracks had no clue about the fact that she didn't know how to do two of those microsoft office functions that according to the holding of the lower court anthony would still be considered to be presumptively on qualified for the job there depends on that one i would say  that point but i'm thinking even if those tests had nothing to do with her to her technical writer job so is another words a boilerplate qualification that really doesn't have much to do with their ability to do function correctly what it does with your often is the case