in this case one of the most glaring examples of the issues before this court the need to be addressed is unique consistency in the order between what is the present provision hearing and what is an interactive process and one of the most interesting items in the evidence is the in an active process argument which was rather heated this is the court's probably observed from reading docket entry one sixty five at that time the officer it absolutely in fact we went to the bottom of the bother of having an ala jaded side the only issue that the city had decided was that he qualified himself as disabled within the meaning of the d more importantly thirty three or four via the california government code requires an administrative appeal consistent with scalia versus a person of order fifteen cal third page two fifteen all of the process requirements set forth in the council print court was very clear on that employee has the right to request but he also has and by the doctrine of preemption federal law superseding the right to ask for accommodation the accommodation issue here was a understand eight if you believe it was also a previous probation hearing there was never a post deprivation hearing and the doctor of barber versus state personnel board implies and it's been upheld by the federal courts that apply his commands i should say that backpay until the date of the post deprivation hearing be granted none of this has been dealt with does interact with me doesn't mean that both sides participate yes they are and there was a meeting wanted to have a meeting there was no meeting there was a quote scally hearing where the only opportunity together somehow and just said hey everybody let's get together on this day and do what they said unless you convince us basically to read the evidence three item a letter saying come in we are going to impose a disability retirement on you then when we come in we say we have not got this this this this is also supposed to be a mutual exchange of information if you look at it as an extra you know they did not give us the worker's comp files or the other files they said they were not available they did not give us the accommodation was obviously going to be an issue why did he ever suggest an accommodation yes he wanted more leave no one he wanted to go back to work for the police but we wrote back the letters in the evidence or a change show as far back as may a request for accommodation was made and refused in writing two separate occasions the refusal was it's premature he was disabled at the time the law doesn't say we get to wait till your pete permanent stationery can never have another change to accommodate you the law in california and on the ninth circuit and the supreme court retaliation issue comes in because when they put him in texas or patrol from attackers they knew he could not do that job he told me quote it was part of the record they were going to fire him and that's also in the record doctor's report they did not have and we asked and our so called meeting which was both a skelly and interactive with their conflicting doctrines we asked if you've done an evaluation what have you done and every time we do we even asked who's here they would want to tell us that they don't want to who's at this meeting i finally put a tape recorder on i was very upset when i did i turn record around and it got hot and in that meeting they said a lot of things and those things he knows he will not rule on constitutional issues but he also knows that the chief of police in the people in the process failed to give adequate notice of the charges against my client and he reversed all of discipline finding the testimony incredible that a person stopped the said that he was in one place on one day when he was actually another place said well i guess i'm at approximately one o'clock when it was four or five hours later there was a complete employment and that is very clear the baggot court and the california supreme court ruled on judge hoover's analysis that last phrase for purposes of punishment does look at the worker's compensation application the application says his situation is intermittent not complete he is not claiming total disability he is claiming detective we had at the time no sufficient medical evaluation to take whether you could or could not that was the issue on december eighth we were still awaiting the results of the surgery the final diagnosis and they were telling us we would get the materials this is the key point they said we would get the materials if the court looks at the record those representations never  that later miss foster writes a letter saying we reviewed the further materials well not any further discussion with the individual well telling us anything about it and we've decided issues of this case which is the interaction between two sets of california laws the state retirement laws for public employees and fee how the anti discrimination law applies to all public and private employers and employees the grantham in a mystery no one is complaining is that he was retired under state retirement law against his will now after the city retired  appellant pursuant to california government code section twenty one one five one which provides any police officer who is incapacitated from performance of of his duty shall be retired and also notified him that he could yes he did that your honor he did appeal that says there's something wrong with that because it could determine everything that's well let me let me get right to that point that's a full of  you would have expected that if he appealed that decision the city made to retire that he would present a case to the ale jay and in fact in his appeal letter it's in the record it states that he's not just challenging whether or not he is quote unquote disabled but he's challenging the city's decision to unilaterally terminate his employment and forces disability retirement that's at page two twenty the ministry of r sort of the excerpt of record yet when he gets there that's not what he does he immediately stipulates that he's incapacitated from the performance of duty based upon that stipulation in part the ael jay then found that he was quote substantially incapacitated from performing the usual and customary duties of a police detective and i want to in man's burger the case involved a game warden who could perform the essential duties of the job even though he admitted he had to perform them with restrictions that he could not arrest or or take away a prisoner but that the court held that in that proceeding concerning a game warden that was not one of his customary or usual duties and consequently he was not substantially disabled and incapacitated from performing his duty that's the same issue in this case mr know what me contended that he could still perform duties of a detective even with some accommodation he could've made that argument to the l j he didn't and then when he didn't make that argument he still could have brought a writ in california superior court and try to challenge what the l j felt when did this hearing the notice in october and the record is very clear there is references made that the city is aware of the fact that he had had some additional medical profession procedures recently and the city asked about what those procedures he didn't present any evidence at the interactive meeting as to what those procedures war and whether or not they change the prognosis now those procedures were as to  but his own training physicians had already indicated that he had a need condition that required we need a replacement another of his physicians indicated that he had a back condition that prevented him from working in any capacity was this from his doctors reports or yes they were your honor those are from both of his doctors reports and those reports never changed now in the in the al case this court held that went in a circumstance like this concerning accommodation when this when the employer has evidence that indicates that the worker  not work in any manner it's up to the employee at that point to provide some other contrary evidence rule that it's the employee's responsibility to understand his own medical condition well enough to present the employer with some sort of contrary evidence he didn't do those things he didn't do those things at the interactive meeting he didn't do those things in front of the l j now that gets me back to what does that mean terms of fee ha means two things in that in the johnson case the california supreme court explained that you don't get two procedural bites at the apple if you choose to go the administrative route which is what mr and what he did by going to the  johnson the california supreme court explained that he had the option he could have just gone straight under fee home but once he starts that a ministry procedure he has to complete it and the reason is simple otherwise you have to inconsistent results under state retirement law he must be retired once he made that stipulation that he was substantially capacity from performing his duty state law required mandate that he be retired state law require he be given any kind of accommodation or as it is through the federal law keep in mind under the the fee there is no federal claim there is no federal eighty a claim in this case similar inquiry because it's not enough to retire somebody just because they have a disability they have to be substantially incapacitated from performing their usual and customary duties it's our with the mansker case explains that if if somebody can perform their usual and customary duties then you don't retire them even if they have some disability and keep in mind here in this case the only thing he want indicated indicate he couldn't perform any work but a couple of months before the interactive hearing he testified at his workers comp proceeding that he could not perform  functions of the job of a detective that he could not go back to work i guess he said he could go back to work and when that worker's caught right that's that's right your hon have never received any report to the contrary that condition has never changed throughout the interactive procedure and i think that was a very important point to judge cooper she pointed out that the only  that had been presented at the interactive proceeding concerned some palette of measures taken to for his knee they never indicated that if it resolved the problem or would allow him to work that the but not only where were the not only did mr know want to have the new problem but he had the back problem and he had the psychiatric problem which all contributed to the fact that he could due process hearing clearly he did the ale j proceeding was that post deprivation hearing that met all the requirements of due process that was a full of attention or a hearing he could have presented evidence now to the fact of the matter is he chose not to he chose to stipulate that he needed to be retired now once he once he made that stipulation once the court one sale jay ordered him to be continued employment the reason why he was separate from continued employment was the ale j decision that decision cannot be reversed it's now final he is retired there's nothing they can do you can't now go back and pursue a fee hard claim or a retaliation claim under the first amendment and complain about the same adverse action that is already final and which is already been held to be in place can't be changed can't be challenged couldn't obtain back pay can't contain reinstatement under any other theories so long as that algae decision is final and it is fin let me just ask the court to take a look at two six nine in the record which is the ail j's decision the second pages will be in the will i mean as i am one of two excerpts of record from the expert oath counsel entered into a stipulation that respondent was permanently disabled and incapacitated due to his medical slash physical condition we have no problem with that we wanted that rulin otherwise he would not be qualified for the benefits of accommodation whatever fears were the entire the fast fails and the core of the entire argument all the issues the miller case is an interesting case but like all rick and the others it only applies if the tribunals below had your restriction the jurisdiction also here i'm sorry i'm getting better and your stiction here is also very clear that only the personnel commission of a charter city can terminate hi employment and only after a thirty three or four b hearing that's point one point two at the so called skelly or in our act of december eighth meaning they were asking us to give them evidence the dark decision of the ninth circuit absolutely refutes that whole mentality his claim therefore that they've given a post depri well you don't have any record for you other than the adjudication if you look at the statutory authority which they have not and do not want you to look at they want to believe this is a hearing on discipline and term a nation within the meaning of  he had to take it that even that only they qualify once i got that decision nailed down i moved forward i went to federal court because they weren't giving him a due absent some federalization is a state court it is a case with no jurisdiction in the avoid judgment now the full evidence rehearing that's required also requires that they give the materials they didn't but what does what does the interactive process sorry require it says and i think the case very clearly is dark versus curry nobody ever sat down and said look this isn't a want this is what we think what you think there was no interactive it was come in and use the reason we should that's a skelly they didn't give us the material even when we the employer with a medical records two things need to be recognised first the employer was not providing the employees with the cost of medical records they got the medical records by worker's comp all they were required to get them and they had them what they didn't do with sharon was the employee who is i work has no money and cannot afford to do much if you mean it was in the record they talk about bad time he's on bad time well that means that they traumatized him even before they had read they're not allowed to even retire him before an interactive process and if you look at the record they did they forced retirement we will letter they rescinded and then they had a pretextual meeting claiming as a as a doctor to show that they had a