disabilities act in the minnesota human rights act we are asking this court to reverse the district chords court's order dismissing those claims in vacating the judgment it is our position that the district court and when it determined as a matter of law that no reasonable jury could conclude n s p did not make a good faith effort to accommodate mr charbonneau there is substantial evidence in the record that would allow a reasonable jury to conclude the opposite and i'm going to provide the court with several pieces of that evidence of in his piece like a good faith one and s p ignored or should regulations for protective foot that allow an employer to certify that protective footwear is at least as effective as a protective footwear constructed in accordance with one of the consents and standards including in t m p for one three what happened to step back here for a second so n s p is vice president of human resources darla for goli this is late two thousand and twelve she asked the manager of disability solutions betty post to investigate whether it would be be allowed or not be required to wear steel tip toed safety boots but the point here is that in a speedy had an inflexible policy the inflexible policy was if it's not marked with the stamp you can't wear it and that policy didn't make any particular sense in connection with mr sharp bonus case primarily because mr star bono had worn those boots in the past the boot the boot that he'd worn in the past was the boot that cost him the injury and the only way you get the stamp is if the boot is is manufactured in a sort of other manufacturers plant that places the stamp on the boot later say it couldn't be known mr lewis mr lewis never said it couldn't be missed mr lewis was the person that told that he posted he had contacted by manufacturers and he was told that they could they could create a and so after betty post had her one conversation with scott langston and langston told betty post that the book could be made but they can't stamp it betty post never went back to mr lewis that was her first point of contact so i guess my question was what does the record show as to whether a boot could be provided to mr charbonneau that met the ocean requirement yes so so we have particular case but that was one of the that's one of the factors a bad face so after betty post had her one phone conversation with scott langston and she didn't know anything about mr langston she didn't know what his qualifications were  evaluate osha compliant custom protective footwear but after she had her one call with scott langston she completely ended the interactive process sin do anything else that was it so the boot should actually have been constructed but that never happened because the end there was this fixation on the s t m stamp the the director of corporate safety mr paul jesse he testified and he was the director from two thousand and seven to two thousand and fifteen through the time that this was all taking place he testified that he had knowledge of the ocean regulation that i quoted before cited before which allows for the use of protective foot as to the as to the determination regarding the custom good option and the reasons for that determination that being that the blue can't be stamped if post would have talked to charbonneau after speaking to langston they could have had a discussion about  managers to contact ocean themselves regarding that issue but they never did so the point here is that post shot gun shot down or shut down rather the interactive process never talk to mr charbonneau and the process end there's also also evidence in the record that one of the things that and it's be talked about doing was following up with another business called elmwood safety this is in the declaration of karen  that go over existing shoes but there's no indication that any speed ever did that the the they never accept facially explain to mr charbonneau the ninety day job search this was a discussion they had with him in october of two thousand and twelve you never told him what would happen at the end of the ninety days if you didn't if you didn't find a job that would have been helpful discussion to have with him for purposes of engaging in the interactive process didn't take any action to investigate any accommodation i believe she said something to the effect that's going to have to come from somebody higher up then we move into two thousand and twelve and nothing's being done to accommodate  cements a letter from his godson how much of this time was he not it or during that period if you know there was quite a bit a time when he could not work he was that he was using up his union uni reasonably accommodated it's a complete defense if we show or if the practice issue is required by federal law or the requested accommodation presents a threat to the health or safety of the employee or coworkers alignments job is incredibly hazardous is one of the top ten most dangerous jobs in the united states and people are seriously hurt or killed virtually every day on the job trying to do their job and trying to minimize serious injury or death is imperative as a matter of public policy as a result osha has certain minimum requirements and n s p has to comply with those minimum requirements council talks about inflexible policy of an air stamp required by regulation the regulations says the employer shall ensure that each affected employee use protective footwear says protect footwear must comply with any of the following consensus standards which is the s t m stamp now they focus on this yes you're right it's clear that a s t m stamp and osha compliance with the same thing demonstrates is at least as effective as protective footwear that is constructed in accordance with one of the above consensus standards they've not cited to any definitive ruling from osha or anybody else that you can construct a boot that meets these consensus standards without the stamp the logic is if it meets those consensus standards you're going to get the stamp and if it doesn't meet those consensus standards you're not going to get the stamp so we  time consuming difficult process to go through this and get the stamp and to suggest that we could just walk into a manufacture say give me a boot and stamp it just is not supported by the record and absent a ruling from a quarter from the from osha saying well you can produce a bill without a stamp what employer in their right mind would go off and say ok mr charbonneau here's a boot we think it's constructive and corns with osha requirements but we're not sure and you can imagine the lawsuit that would happen if we would give him a non stamped boot he gets injured or killed we were going to get sued they said  well that was your burden to show that it was constructed in accordance and obviously it wasn't it's a huge risk it's a huge liability so having an s t m stamp not only makes sense it protects the employee protects the company and  accordance with osha standards in fact the e e o c in example forty five in talking about who's a qualified individual with with a disability is almost identical to this case it says an employer pursuant to an o regulation requires employees to wear steel toed boots you know employee has severe burns on his feet and legs to prevent him from wearing these types of boots the employer may insist that the employee wear steel toed boots and because the employee cannot comply with this rule he is not a qualified individual with a disability so even the e e o c recognizes our right to comply with ours our standard n s p has the right to impose a safety standard exposes everyone to risk it's undisputed that wearing steel toed shoes reduces the risk of serious harm or even death that's under spewed that not wearing those shoes exposes the company and the employee to serious harm and at the end of the day sure bono has failed to meet his burden as your honest no to judgment this is only theoretical that this imaginary boat could have been created no one has identified a manufacturer that's as we can produce a boot with the a t m stamp could be custom made and clearly there is no accommodation that would comply with osha or n s p as policy safety policy and we shouldn't have to compromise our safety standard to accommodate one employee as your honour's of have noted in in a number of cases  the worst case as well as the callil case that your honors were on employees not intitled to the accommodation of their choice and the employer has the right to impose  certain safety standards at the through the interactive process here yes in a fast and right accommodation so it's his burden of proof to show that we didn't act in good  and good faith does not require exhausting every possibility good faith does not require us to make an accommodation that's perfect good faith does not require us to accept the employee's preferred right he'll do i'm sorry what did you do here here's what we did over a period of five years we had over eight thousand people working with mr sharp bono disability specialist safety consultants the vice president in resources management workforce consultants the union was involved we had or thought a neurologist podiatrist foot an ankle specialist we had red wing shoes we had georgia giant involved trying to figure out how do we solve this problem and none of them have been able to come up rejected all those things we offered him light duty we offered him four hours per day we told him wrap your feet in gauze he again rejected that opportunity and the significant thing is he was able to wear red wing we gave him a lengthy leave of absence we let him stay out for nine months after exhausting his f m elliott believe that was an accommodation we paid him for the entire time that he was out on leave that's an accommodation we offered him light duty work we told him you can apply for another job mr charbonneau rejected that opportunity saying i want to i like this job that i have i want to keep this job and then when he said i don't want to apply for any job said ok we'll give you an opportunity to apply for disability retirement another accommodation and what's interesting about his disability retirement is that he gets paid for the rest of his life comes out of an s p s pocket he gets paid not just to sixty five but for the rest of his life he can go get a job someplace else as long as it doesn't violate his is disability restriction that no custom shoe meets the s t m standard because someone has to watch the process for each individual custom shoot at that point we say there's nothing more that we can do we try to accommodate this guy for five years we've involved everybody we possibly can he's refusing to do the things that we're suggesting that he does he doesn't want to apply for any other job and we finally say ok well we'll put him on disability retirement and we'll pay him for the rest of his life i think that fact alone that we put him on a disability retirement should be determined of good faith by itself n s p had every economic incentive to find a way to keep this guy on the job but they weren't able to do that and the fact that he is now on permanent disability we had to go through a process to determine that he was disabled that he couldn't perform essential functions of his job disability and interestingly he continues even after leaving work he continues to suffer severe pain in fact there was some suggestion from one of the doctors that you know he will never be able to work again because of that foot injury so the prospect of him coming back the workplace is virtually zero he's not going to have any damages because he's getting paid for the rest of his life so this lawsuit is just really really point so we believe that mr charbonneau has failed to establish that we didn't act in good faith i don't think any reasonable jury could find based on this factual statement that we didn't do our obligation in terms of good faith there suck damages i think the disability retirement is equal to what he would make as an employee and he is making about fifty percent of this of his pay level but he's getting paid for his entire life so if you as working life would be three sixty five and he's a young man he's like forty nine years old so he's going to pay for a significant ok it was an observation it's not essential because i think at the end of the day no reasonable jury could find based on this set of facts we worked with him for five years we involve doctors we in volved disability experts to come up with this and at the end of the day what they're asking us to do is to ignore the a s t m standard which osha has required and which we have as part of our policy and he's failed to meet his burden to show that he could we could have come up with some magical boot we still don't have it here today where we have some affidavit from a manufacturer that says yes i have a booth the complies with osha requirements and would allow mr shar bono allow him to do this job because we found that even when we would make boats for him and have him try him out well they were unacceptable for whatever reason he didn't want to do the gauzy didn't want to do the socks whatever it was it was also always you know adequate for him and we believe that he is totally failed to establish his burden of proof that we failed to engage in the interactive process in good years and he was on that account he in fact a den of fide the manufacturers who could have constructed the custom boot indemnified two in his testimony and cross examination when he was asked if the custom footwear and  and and this p had the opportunity to follow the mandate that it was given to find an osha compliant bood and he didn't do that mr post made she had one phone call with scott langston langston said we can't stand to boot said look at the may we can stamp it and at that point she quit with respect to the damages piece i don't really think that's an issue for purposes of summary judgment but i will say that the disability retirement is only fifty percent of what he was earning it only includes based on our doesn't include all the overtime that you have worked as a lineman when he was when he was able to work as a lineman just wanted to make that clear for the court i have twenty nine seconds left but  i don't have anything further if the court has any questions for me i'll be happy to answer them i see no thank you very much mr fabian thank you also most demo will take your case