good morning and please a court attorney engine mcpherson for the town of greenwich board of education at this court in stevens v rite aid stated that courts should give considerable deference to the determination of employers regarding what essential functions of a job more now the plaintiff was a paraprofessional also known as professional system for the board of ed essential functions of the job were lifting and toileting students with special needs now prior to the plaintiff's employment beginning with the board of ed the board of and the union who represents the professional assistance we're negotiating a new collective bargaining agreement both sides to that negotiations came into those negotiations wanting to make sure that lifting in toileting students with special needs were central functions of the job if you had just a little bit i think the key to the case is probably wasn't there evidence before the jury that show that notwithstanding the consolidation of the positions there were still way roos granted i'm not saying it was greed evidence but there was some evidence that some people didn't have to do that all the time and if not them then why point well your honor there was evidence that was self serving testimony by the plaintiff that she was previously whole testimony by one side or the other is going to be self serving in one sense so the fact that it's a fact you describe it or characterize it as self serving doesn't help the the answer you started with was there was evidence correct it was it was testimony by the plaintiff your why isn't that enough that that's not enough because your honor the evidence was controverted and the only evidence th  position was that it was evident to the jury that she was not able to do these things and i guess i credit at least the good faith of that argument to the extent that they then went after the official from the board of education who testifies next as you saw that woman right she is not capable of doing this and the witness insisted that she was and then they went and summed up to the jury on that every case i've ever tried as a lawyer or as a trial judge something that happens in the courtroom that the jury sees that the jury thinks discredits a witness is way more powerful than something in a documentary or some prior inconsistent statement or anything else that happens outside the jury's presence so what are we to do with something like that are we to say well we don't think that matter is or we don't we who didn't see it don't think it was as dramatic as the plaintiff would like to portray  going to deal with that well your honor the only evidence of that was the purported as the scribe of plaintiff's counsel walking of miss daly i was present for the trial i didn't notice a front of the jury the hope that the jury find something in her now played have testified that ms daly was totally paralyzed on the left side miss daly testified that she has eight foot drop there was no evidence whatsoever as to why there that's a medical determination in the town the board of and has now has never received any documentation from a doctor or anyone else saying that she's been diagnosed with that we don't know what the symptoms are whether whether that happens once a week once a month once a year once a decade whether that affects her job in any way there is no evidence whatsoever your honor mr daly herself is the only one who testified as to she said that i can lift students with special needs from the wheelchair to the toilet and the whole purpose of this is so students don't have to soil themselves and classroom for the purpose of this is to protect the students now as a question just to get back to just well your honor the only request by mr daly was for was for light duty there's no evidence whatsoever what light duty entails what reasonable combination in light duty would would it be the use of  mechanical device there is no evidence whatsoever of the cost of what this light duty would be much less that it's cost is not clearly exceeded or its cost is not clearly exceed its benefits  was whether lifting a toileting was an essential function of the job when the existence of some light duty as an exception to that how could you prevail if there was light duty forget about what the contours of it from performing lifting and while it may be informal it may not be written down but what if the evidence shows it in fact appears to have happened well the st circuit had a case in phelps just like that your honor which is cited in my brief and it was a nurse and she had a lifting restriction much like the plaintiff in this case and she entered into a job sharing agreements with other nurses and her supervisor at the time at the hospital as other courts have including the district court of connecticut and tell mary that permitting that someone to have a quote unquote light duty is more akin to a creation of a new position which this court specifically ruled is not required under the don't you don't you know marriage and your instructions in this case you know your thank you will hear from them john williams from used to pursue me i tried my st jury case fifty one years ago this month and since then i have there's never been a month that i haven't had at least one and maybe more than one jury trial and all that time if id ends the trend i am you know all that time this is the only time i have ever had that kind of a smoking gun moment in the trial that happened in this case if counsel were correct that nobody in the courtroom saw what in fact was seen then the jury would have spent no time at all in rejecting my argument which clearly focused on what they had seen and they would have held that against mrs presume if i were here i wouldn't be here is the epilate of that's for sure the judge martina's in denying the new trial motion did not say that i had made an argument that these things could be observed by the jury she said that i pointed out that these things could be seen by the jury that i underscored i think was her word that these things were seen by the jury we were in a very small courtroom i'm sure none of the members of this panel it's been in that particular court room but it's a very small room and everyone was cheek by jowl quite literally and the witnesses were not sequestered it was inconceivable that regina williams had not seen what she denied having seen inconceivable not only was this a question of not being able to to run after a bolting child but in fact it was a case of not being able to utilize her left arm at all while she eileen daily denied that she was totally incapable of using the left arm the fact is that in in her entire time on the witness stand she never once so much as moved her left arm despite many occasions when one ordinarily would have done so and she was sitting in immediate proximity to the members of the jury they couldn't fail to see those things and so the question when mrs presume he testified that in fact this woman was totally paralyzed on her left side was incapable of not only of incapable of lifting was even incapable of so much as pushing a wheelchair and that she was on not temporary light duty but permanently duty and had been for years the jury clearly was intitled to find that the practice followed by the greenwich board of education was that some people got a your honors the issue of running is a red herring running was not one of the two essential functions of the job of professional system that was at issue or claimed to be at issue a trial running was something th entered into at trial on behalf of planets council by questioning missed daley's ability to run after a bolting child now there's no evidence a plaintiff was terminated for failing the run whether running was an essential function of the job and is not a matter at issue in this appeal and it's never been a matter issue in this this case your honour's now miss miss daly clearly testified that the she could list in toilet special needs students and she stated that the only issue she has with her left arm are fine motor functions skills in her fingers which in no way impacts her ability to lift special needs three g the she's making it up where she doesn't appreciate her disability is it your juries allowed to make their own perceptions and make decisions off of that your honor but when when a plaintiff makes a very wide ranging assertion that someone is paralyzed on her left side and the person gets up and walks to the witness stand the person is not asked to pick up a pencil much less any kind of heavy object to see if she can use her left hand and she states that she can there's only evidence on the record that she's able to use her left hand the only evidence or the only thing on the record regarding her inability to not use your left hand is miss presume is own testimony which by the way was not only controverted by two h r employees for that for the town  controverted by the head of the union the head of the union testified he stated that the union itself didn't investigate that term and if any other professional system had ever been given if any professional system has ever been given light duty testified were given a light duty in that they seemed unable to lift and transport students she actually did testify and and it's on the record that mister coleman at the same time is a former employee of the board of education who denied their the truth of their of their testimony mcpherson i'm very sympathetic to your argument for sounds like if i were a juror i might have come out the other way on the other hand i wasn't a juror i didn't see the things that the jury saw and the jury's entitle to make its own mind up whatever i think so long as there is evidence and if you have a direct contradiction between mr pictures testimony about what he can do and what  question for the for the jury unless we were to say which i take it no one's even asking us to say here that we should be for absolutely to the formal job requirements and not pay any attention to what happens in practice once that door is opened to what happens in practice we have competing accounts here at the trial of what it what was done in practice i agree on that asking your honour's to make a judgment that you have to defer one hundred percent to an employer's determination what i am asking is for your honour's to consider that just a request for light duty even if previously given is not a request for reasonable