disability precludes him from attaining a commercial drivers license and there's no dispute this case whether that's true during the twelve years that he had the job of mechanic show didn't do that but there are mechanics on a lot of movement but he has a regular operator's license did he the mechanics move them out when they needed to be driven out public roads and the only thing that mr shell could not do  was drive a bus on a public road his supervisor mark bagger testified in or in his declaration that what mr show would do was when people had to move the bus at that i go on a public road and i would be delivered to a repair shop or back to the manufacturer shell would drive his own car up the street supervisor or another driver or the mechanic or somebody else who did provide presents a commercial driver's license would drive the bus itself any importantly there's no evidence in this case that  caused any problems for the city of energy transit system in fact the testimony from the decision maker mr blackwell who took over terminating mr shell was not that there was a problem or that he had reviewed the job it's simply that he looked at the job description and discovered mr sheldon not have a commercial driver's license so it's a plain of specific and then that because there was driving the bus was not an essential function of their mechanics help position that is so not withstanding the definition of what their position was well i think yes our position is that the job description itself is only one of a number of factors and that position is consistent with federal regulations that have been adopted and applied repeatedly by this court most recently the common case but even if the job description is dispositive i'd just like to direct you to the job description duty it just says duties doesn't say essential functions says may occasionally drive and deliver busses to various field occasions that's my mind that's doubly qualified this may happen and it may happen only occasionally but in the situation again after all right he can't do it that that's true but i think when you apply the task that the court supposed he never did it and there's no evidence that he needed to or there was any kind of requests that he needed to do in order to achieve that ensure the smooth operation of the city vans in unison transit system i think that is the fundamental distinction between this case and the three cases the district court relied on god and the city realize i'm here on appeal and that's the basic case the wintry case in the grad school case in each of those cases well specifically basically in winfrey the employer was attempting to accommodate someone who had become disabled on the job and was moving them through a series of positions or a series of limited assignments at the end of the day i think in those cases the employer said look we just we can't do it we can't do it and then the planet said well wait a second for two weeks or you know you had me over there and i was a clerk i could have it turned out i couldn't do any good dut but i was a clerk can i just be a clerk will in this case the my client worked there for twelve years it's not that they were bending over backward to accommodate him he was the mechanics helper for the majority that time on day shift themselves as well as the street supervisors and actually the the director operations also held a commercial driver's license and i'm talking about in the job description they were yes yes they were i think they i think even up to the director of operations not sure the what happens in c v anderson is that most people come in as a part time bus driver so most everybody who starts there comes in as a part time bus driver reported to a director of operations had also been there for years and both of them testified that mr shell performed all the central functions of the job finding he didn't is to sort of make this job description itself dispositive and that that's an incorrect application of the of the factor test in addition the fact that the i don't think the job description is set up is that clear that this is this is actually an essential function of the job there was some sense i think in the district court in the arguments that this was a special favor for mr shell that they made him a janitor they didn't need a janitor i frankly think those were inferences that were drawn from testimony where people including the previous director of operations the previous general manager and the appellate himself about ok what did you do when they were describing the functions you performed they were just kind of going  boat accommodation could be me he performed this job for twelve years without needing a commercial driver's license i could would he have been accommodated by having someone else move vehicles to very few times that they needed to be moved here are i completely disagree with your promise that he performed the job of a mechanic's helper for twelve years he did not centric twelve years you're all just sleeping on the job there here's what happened your honor there was a grievance filed regarding mr shell and his ability to perform the job there was a resolution of that grievance a new job description that was prepared that eliminated the essential function of operating vehicles and having city i'll write it it was a job description that applies to him specifically to him right so it is this case is exactly like winfrey and best where there were special accommodations made for him but these accommodations  may are not a concession at all they simply refer to the fact that there is something that happens occasionally it is not something that the employee has to do all the time but we know from bassett and from other cases cited by th word including gracile that whether or not something is performed frequently is not dispositive whether it's an essential function instead if it goes to the core function of what a business or company does then it could be essential even though it's performed infrequent here we're talking about a bus company and all the employees for this bus company have to have a c b l because sometimes they all have to operate busses now in terms of this notion of the job description of my argument being circular i could not disagree more e e o c defines help helps provide a test they provided a list of factors that are considered the two factors that come for or what the job description says and the judgment of the employer and we know that this court in facet gracile in other cases specifically has held th are the two most important factors in deciding whether something is an essential function now again i don't disagree that that mr shell was accommodated for a long period of time but the fact remains that that the other mechanics helper who didn't have this change on his job description had to perform this essential function of operating commercial vehicles in addition to moving them around the law there are a lot of other duties that went along with the can excel part and that moving commercial vehicles was important be able to perform as other functions as well things that mr shell just couldn't do because of his disability so i think based upon this court's decision i just don't see any evidence that this is something other than an essential function in essence their only piece of evidence that the plaintiff has in this case is well he did the job without it for twelve years well i couldn't see any evidence  this and this city what it have provided that evidence well the city provided evidence in the form of the affidavits of rick garrett and addie brooke first written gerrard was the camera's exact title he was essentially one of the directors of cats who stated that having a c b l for a mechanic's helper was an essential function in addition the city hired an outside process required multiple stops and had the outside consultant examined the actual drop performed by each employee in city government to determine what the essential functions job responsibilities and duties were part of that process and this is also in the brief had the employees need and the employee supervisor final off that those essential functions and duties were in fact require as part of the job so i disagree your honor that that evidence is not in the record it's right there in the form of the affidavits from eddie roker and repair mr overholt is it the fact that we're even talking about these factors  these factual discrepancies doesn't lend itself to looking at this decision that it should have been one put in the hands of the jury to determine whether or not driving the cat's buses was an essential function of the mechanic helpers position we're talking about a time period of twelve years now or about on harrison with another helper mechanic why aren't those matters for a jury to hash out a trial because when you have a governmental entity that is trying to perform a service for the taxpayers in this case providing a service it has to do so as economically as it can that means that employees have to be able to perform functions that go with their jobs the fundamental fact in this case is not disputed by anybody is a marshal could not do the job mechanics help he couldn't do a whole host of functions lissa's it with that job now where's the evidence is that what is going on here where's the eviden back and look at i think mr shelton self on summary judgment and knowledge that he could perform very few of the functions listed in his job description that i agree that was not the reason for his termination he was terminated because he did not have a cd which was an essential part of the job i'm just pointing out to you that his inability to have a c b l impacted his ability to do a whole host of of his disability impact a whole host of functions and i believe it's on pages twelve through fifteen where that issues it's my understanding in the history in his employment record there were no write ups or warning no issues presented during that twelve year period of time there were not that would have put him on any notice that there was  if you're in that job too long it's no longer an essential function in other words that once you go beyond what the eighty eight requires by accommodating an employee for a long time you lose the ability to say that some central function every decision by this court has said that is not the law van zandt specifically says we don't want to put employers in that situation because to do so will discourage employers from going beyond the a d a s minimum requirements and allowing employees it will discourage employers from from accommodating place we don't want to do that this court has said that time and time again that's really what we're talking about here well if it was an economic decision if they had to hire other people could would after or at least require other employees to do it we don't i don't want to characterize it as needing to hire other people i rephrase the ask here here's an example let's say that a bus breaks if this happens on a ship that's not marked shellshock mechanics helper will be one of the people who goes out gets that bus and either helps the mechanics bring it in or helps transport passenger mechanics yes correct so it's excellent oh ok so it would be a mechanic to go out out of gangs sell their coats right and so the mechanic can't do the work that he needs to be doing in the garage in other words here's the fundamental point about all this work of driving the bus with a bus around has to be done by somebody his job is to be able to do that and that work cannot be left undone therefore it is essential it has to be done and the judgment of the employer is the mechanics helper position is one of the positions that has to be able to do it this is not a situation where the company can simply say yeah we're just going to do that we're going to leave that function undone it how much time you have three minutes left i'll give you another minute ok thank you i just want to address mr overall point that you know twelve years there is no mine but if you look at the test it's asking not for the number of years but it's asking how the job has been performed and the best evidence in this case is how it was performed for twelve years and mr shell i think  there's a question about whether that the buses were moved around a lot our position you know for purposes of litigation is that he could do it that there's a dispute but that doesn't really matter to this case because mr shell worked on day shift that's the time when the buses went out m never had to move them when they came back and so i don't think that's the point but if you look at the the test it's seven factors the work experience of kit past incumbents in the job and where the current work experience  and similar jobs the consequences of not requiring incumbent to perform the function the amount of time spent on the job performing the function those are four factors that mr shell's experience in the role is evidence of the time spent on the function mr justice never the consequences of not being able to perform the function for twelve years mr scheldt there's no evidence of any economic hardship in fact i mean employers have an undue hardship defense act that's a point where you get in when you're talking about a reasonable accommodation in this case they're trying to jump out of the reasonable accommodation process by asserting that this is an essential function of a job because it's undisputed that when he was terminated he was told look the job description requires it you don't have isn't it correct to that when he was hired in the twelve some years when he was hired in that that job description was in place and included the c d o requirement yes your honor so he was hired in notwithstanding that not was standing in place for eight years are there's a lot of testimony about how the job description sure created but at the end of the day the job description and as judge or even a pointed out is that heavily qualified it as it is is one element of it the other element is the employer's judgment well in this case we have in a judgment that's been asserted in litigation but it's not the employer's litigation position as to which elements are essential and you have to look at the testimony of the people who were mr shells the decision makers about mr shells employment and add was the general manager who hired him the director of operations under whom he worked and the general manager who terminated him and there's no testimony from any of them even the general manager who terminated that we were having problems we need mr shell out on the road hi terminated the day after the general manager took over general manager had no transit experience the general manager didn't speak to mr shell's supervisors the testimony was simply that he looked at the job description and made a decision based on that to terminate mr shier change in party affiliation for them yes but michelle had previously survived the previous change but this this was a this change in may this was a change in mayor he had worked successfully under the mayor in a previous administration during that time he had that specific job description changed for him and he had also been named employee of the month during the previous administration so i  don't think this was well but i'm just saying that that was the fact that yes yes  pete i think that mr shelf performance and the testimony of his supervisors and the testimony in the deposition of mr blackwell in addition to the twelve years he worked are all pieces of evidence from which a fact finder could determine as we're not just saying twelve years twelve years twelve years twelve years is part of the overall picture thanks very much thank you thanks to both counsel and the case was taken under advisement