settle this matter and i'd just like to briefly review what i think those are if an employer is apprised of a disability under the disability statute an interactive process to ascertain whether that employee can return to work with a reasonable accommodation is required your case brady from two thousand and eight says that and there are legion of other cases which followed that did not occur here who if an employee can perform the offense essential functions of his job with reasonable combinations he must be permitted to do so not be terminated here terminations occurred though the amended complaint a version of the gentleman could perform his essential job duties though he could not return to work full duty quote unquote full duty rd the employee reasonably did not submit medical evidence or a letter or as required by the august th two thousand and fifteen agency letters since he was directed to do so both his multiple sclerosis as he pointed out previously that's alleged in the complaint and his current condition and that he was supplying monthly medical records and also claims that knowing that he could perform the essential functions of the job he did he did indicate that we put it another way are you complaining of an a the a violation yes your honor and as well i think the rehab act with whether the idea is or isn't in the case i don't want to i may have a lapse of memory i don't recall the issue being raised but point still is th point is that the district court held here the employee was required to seek review this is an exhaustion argument as i'm sure you recall the district court rely primarily on  would something called a personnel review board but he did not seek such review now my view and this is an imp reason i actually took this matter i think that that is an erroneous conclusion on the eve of the rehab act or the a da for this that's said the same thing or held the same thing i'm not personally it doesn't mean it's not hasn't ever happened i'm not aware of it but what i am concerned right exactly the problem i have here is that if you don't go through the interactive process when the individual's employed and i think that's what the a t f requires and i do think it was required as i said earlier in this case what you end up with is a situation like that if you look at ga thirty carefully and judge sweet quotes from this provision but it doesn't quote the whole provision the individual quote shall be reinstated to his or her former title if there is a vacancy to argument here is from the history that was here obvious to the employer that triggers an interactive sorry i've gone to jail if you look at j thirty two dollars at the bottom of the page judge the provision says if the if he goes through this appeal and if they find that he could be returned with or without a reasonable accommodation quote he shall be reinstated to his or her former title if there is a vacancy to blah blah and that's the provision which i'm arguing d the statute is contrary to the statute the provisions of the a da require with respect to an existing employee of the interactive process and a reasonable accommodation not his or her terminations and then a provision which allows possibly here heard to be reinstated only if there is quote a vacancy that's not consistent with the idea and if one adopts that reasoning it as i say earlier it diminishes the force and effect of statues intended to protect the disabled now there are two of the brief propositions one is as you know under the rehab act and the circuits interpretation of it you do need sole causation or something very close to sole causation to make it a rehab act violation and that is a distinction between it and the  burden of proof upon the plaintiff appellant with regard to such a claim the issue here though is that clearly that was the reason for the terminations because the gentleman could not satisfy the standard of full duty which i believe is clear from his understanding it's clear from the distinction they make between full duty in the letter the letter was th and the regulation which doesn't say anything about full duty by the way it says it should say essential functions if that letter of august th had said can you do the essential functions your job in some certify he would have written a letter and said yes but that's not what it did and thereby did not properly invoke any interactive process is this record s the amended complaint states this he understood that correctly to mean full duty means everything that this job entails the amended complaint goes through those things he could do and some things climbing ladders climbing which he couldn't do which were parts of the job it was not clear to him what was called essential and what was full duty but he knew we couldn't do full duty when you say it was not what was essential let us know if you can do the essential functions of the job he would have been confused based on your answer which was no no no he would have not been he would not have been confused he would have said because he understood he could he understood do what he understood to be there was no definition of what the essential functions were but he understood he could do explain that the employer has an obligation which is triggered by its knowledge of the circumstances with the employee so you can ask for reasonable accommodation but our circle does not require you to ask it it's obvious that need it and here given his history and what they knew it was obvious he needed so yes there is something and there's an explanation in detail and brady as to when that applies my time is up i appreciate it for the clerical course issues my six point of the time was out to see the individual defendants i don't think they add anything to his claim for relief so we don't i don't want to say they are suitable into the rehab act but i don't want to get to them i don't think it matters of this record is that this morning mackenzie fellow for health and hospitals corporation and the other defendants this court should affirm because the amended complaint is defective in multiple ways i'd st like to address that issue of the eighty a after that if you look at j l lev where there's a box to mark americans with disabilities act it is not marked ok and he has no eighty eight dollars claim because he did not file a timely yosi charge so when i saw the references to the idea in the opening brief i emailed my colleague here and asked him was he in fact pursuing an eighty eight dollars claim and he responded that he was not and that it was a mistake and he may have forgotten this i'm happy to submit this email to the court later or i can forward it to him just to  is and even if he had marked it would be dismissable because again his ego c claim was not timely on to the other points the fact that the plaintiffs concedes he never requested an accommodation is fatal to his claim under this court's decision in williams v night there which is post brady the case that my calling relies heavily on in that case the plaintiff was a tenant in a nice ship building and she i think she used a wheelchair she had a disability for walking and they were definitely aware of it because she had complained several times but she had never used their established procedure to request an accommodation and this court found that her failure to plead that she had requested  accommodation through the night has established procedures meant that her complaint was defective and this court affirmed dismissal of that complaint on that basis it's called williams v night and we cited in our brief  so under under that case the plaintiffs claim here is fatally defective in his concession that he never requested an accommodation means that he can't even replete to correct that to deficiency but even if he had requested an accommodation his complaint would still be dismissed at all because he does not allege that he substantially impaired he the best you can say from his this complaint is that the plaintiff has a vision impairment and a lifting pronounce is that it it's sites that incites it cite some insights several other published cases that it's relying on but that was the most similar facts so that's the case that we saw but even if it goes as far as the employers obligation to instigate the conversation that he's held that that's only where where a plaintiff's disability is obvious and that the plaintiff in that case was in the workplace and had cerebral palsy and the that's right something's sure they they know that he had a back injury because that's what he went out on they didn't know that he was disabled many people have impairments but that doesn't mean you have a disability for example that he had in this they knew that he had m s but again everyone with m s is not disabled in their knowledge that he didn't know that this he had m s and worked successfully without an accommodation from two thousand and ten to two thousand and fourteen so the fact that he had m s was meaningless it certainly did not put them on notice that he had an obvious disability requirements are imposed judicially and we cited a case it's kind of an old case i think it's from iowa where they imposed this kind of requirement and this court has in regularly imposed exhaustion requirements where there were other  that the plaintiff was required to plead that they had used the established procedures of a governmental entity to request an accommodation and so that is sort of an administrative exhaustion requirement that you have to do this procedure before you can go sue but again even putting that any exhaustion requirement aside he does not plausibly allege he does not allege any facts that would show that his vision impairment is substantial i have a vision impairment that does not mean i'm disabled he need glasses or he's blind there are no facts in this complaint that if true uses the words but that's a bald legal conclusion exactly you need to allege facts that if true would show that he's substantially impaired the same thing with his lifting impairment he says he has he can't lift things but can he left five pounds can he live twenty five pounds if he can't lift five pounds he's disabled but if he can lift twenty five pounds but just not eighty which his job requires that he's not disabled and in fact one of his proposals for an accommodation is that they let him use a back brace if he can lift eighty pounds with a back brace that just goes to show that he's not disabled he does not have a substantial impairment when it comes to lifting and again even putting this other problem aside he still has another problem which is that he cannot possibly allege that he can perform the essential functions of the job he concedes that he can't climb a ladder he's a handy man and he can't change a light bulb if he can't see assuming that he's substantially disabled or substantially impaired with his vision if he can't see how is he going to put together office furniture which he says is part of his job there are no facts in here that if true would show that he can actually do these central functions of his job and then the last point on the rehab act claim is that all his proposed accommodations are either on reasonable or ineffective most of his proposals involve getting someone else to do his job for him and this court has held that that's unreasonable as a matter of law and his other suggestions are like using a brace or a trolley those aren't going to help him climb ladders those aren't going to help him they have nothing to do with vision he hasn't proposed any accommodation that would let him see if he can't see or that would address his inability to see an accommodation to be reasonable and here yes but i don't it's not that clear to me that he's alleging that there was some other reason for his terminations as to the nine hundred and eighty three claim we cited all these cases in our brief showing that the rehabilitation act is not  forceable through nine thousand eight hundred and thirty seven other circuit courts have held that and while this court has never addressed it the reasoning of those cases is sound the rehabilitation act has its own enforcement mechanism and there's no reason to then add dollars claim it's completely duplicative and it therefore fails for the same reason that his rehabilitation and claims fails and his complaint also does not allege that the hospital system has a policy of refusing to accommodate people while he got this letter this letter is not from a final decision maker and its vague reference to full duty is insufficient where he concedes that one of his colleagues was allowed to go back to work on light duty so he knows there's no policy about full duty so and then you look at this complaint they're dramatically different and there's no way they were written by the same person so i'm skeptical that this was really a pro se complaint but putting that aside and giving it every benefit of the doubt it still does not say the claim thank you  williams is not an employment case and there is no one point in case that i'm aware of that those hold this council suggests i believe in the employment of the brady case still is good law and it ought to be good law because we have and it's a statutory construct and that's why it's good law it properly interprets the statute where you have an individual who it is obvious to the employer and i don't agree with counsel's formulation that a gentleman has been out of work for fourteen months who by the complaint is submitted each month periodic updates with regard to his employment status and his back the nature of his back problems is not it is not obvious to that employer that the individuals in fact disabled under the statute makes no sense that provision clearly that that requirement that's being enforced upon the employee is intended to give them notice as to the nature of his injury and in this case it did just that so i don't think that that point has any validity i think that here he his complaint adequately states that he was unable to comply with a full duty requirement which was imposed by the agency in its letter the complaint also indicates he could do the essential functions of the job and remember this is a motion to dismiss the facts  to be taken post liberally toward him even if whether is process or not i don't know if there was an attorney involved and when no one came to mean to take the case he did the point is on a motion to dismiss with counsel seems to me to be doing is drawing every inference against him rather than if you construe the complaint most favorably to him what you get is an individual who could perform essential job functions she says well it couldn't climb a ladder he says in the complaint they worked in groups of five people so if he couldn't do something someone else was more able bodied could and there were things he could yes i believe you have recognised it is an accommodation where you have people who work in teams and one person is disabled and cannot do a function and other members of the team can do that function it makes sense to understand that is a reasonable accommodation why wouldn't it be opposing counsel has drawn our attention to fight for the various systems circus that was very firmly held that there is no course of action on the ninety three to enforce the rehabilitation the authorities in the circuit and otherwise and it is his decision in the rutherford case which is about three months four months old it's a recent case and goes through the authorities and i think makes a cogent argument as to why that provision should apply i'm not sure it's