granting summary judgment in this case the court concluded that mr offender was not a qualified individual because he could not perform the essential functions of his job with or without a are other issues as well i'm to put it differently could we affirm the district court's judgment even if we thought that lifting more than fifty pounds was not an essential job function well i mean the judge in her decision stated that there was undisputed evidence that lifting more than fifty pounds was an essential function of the d t s job now with regard to that a review of the record clearly shows that the evidence did not show that it was understood ok that's something you clearly that the plaintiff disputed with regard to the the restriction and lifting the only  what can you bring forward to dispute that the plaintiff his testimony he said no you don't job doesn't require fifty bonna lifting their watches he said it does not require more than fifty pounds and his last restriction enough so what's this specific evidence in the record there created the fact issue that you think exists here well i'd like to look at it from the other perspective what evidence did they bring forward to show the judge that he could were no were not doing the burden shifting here i don't think we're doing ok after their job description says you must left more than seventy pounds ninety pounds rather struction says the question is so so the question is what evidence did you produce that creates a material issue a fact as to that i think i know what it was but it's not simply enough to say what if they come forward with you have the burden here what did you come forward with with the testimony of the pla wasn't there another another technician who gave testimony on that issue there was only one deposition taken was near a declaration from another technician who said that routinely we don't have to list lift more than this sometimes we have to tip something over what we did it's not really a normal part of the job that is in the record i don't think it was a declaration i think it may have been poor was a statement to an investigator yes that's right so the question is whether or not that was admissible well machines were more than fifty pounds maybe more than one hundred pounds he never testified that he had to quote lift them up ready only testimony it was we had to tip them well tipping something that has wheels on it which he says they have was evidence of more than fifty pounds but assuming there was because what we're looking here we're not you're not saying she should have granted summary judgment to your client don't forget to let us go to trial right so i guess my first question isn't put aside what the other technician said ken can the job be described by the employee who stood by the plaintiff employee in other words he says well i didn't really have to lift more than that well i understand it to district judge may have had and i have had the facts wrong but let me ask a legal question is it enough to create an issue of fact if the employee says no that wasn't a routine requirement of my job yes i believe so and then the burden shifts to the defendant to bring in someone i mean all they put him was the written job description which case law says is only evidence but it's evidence right the summary judgment stage that's enough it's evidence they have evidence i'm just trying to figure out whether your evidence was sufficient to create the fact issue and my question i think the answer is yes but i want to be sure about it can the employee himself say create a fact issue by saying no no that's not true it's really not what my job requires so i don't see why not i mean he was there for six years he had been elevated to the chief technician so he certainly would know clearly what the job the central functions and the lifting restrictions actually is or are in his job so i think clearly he is able to raise that as an issue and then if they want to bring in someone that disputes it which they didn't do it in but didn't bring in anybody to discuss with the actual lifting other than trying to make it look like there's heavy things around that mr bender would have to lift which obviously didn't have to live but clearly in our positions it was a question of fact here us  primarily on the second prong of the three part time official case which is was mr fenley or the appellant qualified and right and she said he wasn't because he couldn't lift a certain number of pounds correct and and  the question is whether that is a a mandatory job requirement if you will not something that might be nice to have and occasionally happens but at the core of the job was and he had a lot of experience and said i worked at the job a long time and  never had to do that he may be he may be able to impeach the heck out of me have some prior inconsistent statements but why isn't that enough to get past summary judgment i understand that was the rubric within which she made her conclusions but within that discussion she also addressed whether or not liberty dialysis reasonably accommodated mr feather and that was one of the arguments that we made we didn't make an argument based on the qualified prong we didn't make that argument which do you think that that's what i was asking your comment about i'm not sure i can that reasonable combination was provided and the undisputed evidence in this record and our argument on appeal is that there is a basis to affirm because after all this case is only about whether or not we provided that whether or not the appellate provided a reasonable accommodation and as a matter of law the record is clear that the well is that right i mean she she says you got to make every little commutation because you gave medical leave yes he will not only that but then later he later transferred to another job correct another job paid less than the one before but it was voluntary he could have waited he was basically saying that i couldn't do the job even without any accommodation other than taking away essential job these that seventy pounds or more was not an essential job function fifty pounds or more was another judge to judge ruled that at a minimum the record reflected that that the weights that he had to carry around as part of governor do sometimes start let's assume she was wrong about that assume she was let's assume that that that fifty pounds was the essential job function in december he was ready to live fifty pounds and return to his job did you there after did he get a reasonable accommodation as a result combination work waiting to his version if that's true then he did he needed a reasonable accommodation no now but you wouldn't let him return to the job would you say well then he should have played a case based on that he put a case based on failure to accommodate he didn't  a case that i was discriminated against because unlike other people who are not disabled when i could lift fifty pounds i was allowed to go back to i was not allowed to go back to work but some john smith who was not disabled but temporarily couldn't lift fifty pounds was allowed to go back to work or could only lift up to fifty that claim was never played that was our point and in our answering brief and there is no reply brief filed in this case but you know really the way this case should be framed is what was alleged what was conceded or admitted in the record below what has been weighed on appeal what was alleged in this case was a failure to accommodate and only a failure to accommodate plus before christmas he's saying i can do the job i don't need an accommodation but because of this job description that was only relevant we thought to the recent failure to accommodate claim because you can't  what i'm having difficulty with is this your client is saying at that point we're not letting you come back to work because you can't perform the essential job functions correct and the end the end the there and he says but yes i can there's there is a disagreement that we don't think is material but we don't think you need to get to that point because that's not that's not a failure to accommodate that's some other something else that wasn't part of this case it was not part of this case in the complaint in the answers to interrupted tori's he said it was part of his read failure to a comedy claim at the hearing of the district court below he said well that was actually part of the retaliation claim and that's in excerpts of record fifteen  they gave me a job but it different location he would drew that claim and he said he substituted the claim that it was discriminatory or retaliatory because they they didn't let me back to work even though i could do the job without an accommodation what do you suppose the district judge would have done had she read the deposition properly and had she understood the attempt at the deposition testimony by the plaintiff was i didn't never have to lift those chairs all i had to do is tip them and i never had to lift more than fifty pounds what would she have done had she understood that i think perhaps she would if you know she she would have ruled in my favor on the other arguments i raised the the only two other arguments i raised on no disability which is part of this appeal you know could be an alternate grounds for affirming and an accommodation into comedy that this court has said you know employers you've got to do that and i think in this case you have an employer who's who's entitle to some amount of deference job he could've just stayed as a g t s or dialis this technical specialist and waited in that in that job until he recovered or had surgery and gone back to his job so it's truly voluntary it's not  constructive demotion yes it's a lesser job but it was his call it was his decision his voluntary so they the interactive process is ongoing there's no reason to penalize an employer who's doing what this court and other courts across the country have told employers to do under the a t f and gauging the interactive process identify possible solutions you know maybe you ought to think about a job that you can open if you the problem is lift more than fifty pounds right in there is that essentially the basis of the just recourse decision the district court held that and i think also addressed the retaliation claim addressed all the claims before her  for him to appeal apply for that position and that he never replied revisit it so this is an ongoing process he also said after he got that job that he applied for voluntarily that he was happy in that job so it was successful and he never revisited it and those are all undisputed facts there's a number of undisputed facts in this case that give this court a basis to affirm even if the court made a harmless error which i don't agree with because among other things he asserted in his t i a application that the equipment he had to weigh was more than seventy five pounds you can't contradict something that's a purely factual matter under this court's decision in smith and the cleveland decision by the u s supreme court so if you have one second i ask your honour's to affirm thank you you've got a couple minutes because they're well the record shows that in this case my client did have the lifting restriction at the beginning of two thousand and twelve he got better and better over time and by december by at least december he felt he could go back and do his duty yes work now they told him you're not coming back to work unless you have no restrictions well what you respond to because argument that's the only claim he really played in the if if if in your view lifting more than fifty pounds wasn't an essential job function he didn't need an accommodation to know but they said he had to live seventy five to one hundred that was their position but that's a claim for disability discrimination is that that's a claim that you're to say something he's disabled that you're discriminating against him because he's disabled not because you're failing to accommodate so the question to your colleague as i understand it maybe i'm miss argument says you didn't make a disability discrimination claim you made a failure to accommodate claim and that failure and since everybody agrees you were accommodated to december at that point perhaps you could considering the fact that he didn't really have to do the seventy five to one hundred lifting restriction and then they offered him another job which he didn't really want to take but by the time his t d i had run out is he personal leave had run out and