when we take a second just to let some of those folks leave the courtroom first rite aid is entitled to judgment as a matter of on all claims because the district courts conclusion that there was nothing feasible rite aid could have done to accommodate about whether the jury could find that mr stevens was qualified is inconsistent with the finding that he couldn't be accommodated one of those is wrong but it doesn't tell us that we have to accept what the judge said about one side and reject the other we could go the other way respectfully your honor and i think i think the key to you to your honor's question i think frankly it's a point of confusion in the law itself i think that goes to the essential function  then isn't the judge wrong to say there's no possibility of accommodating because there could have been an accommodation by not making him do a test that is not be essential function of the job no your honor because even if  feasible and i think that's a disconnect here is that mr stevens counsel for mr stevens seems to believe that as long as it was shown that the v v that immunizing was not essential that right it was simply evidence and hearing all the testament went through each each option presented and talked about why mr stevens had not carried his burden of showing it was feasible now on appeal before this court mr stevens only focuses on one of those options and that was the option of putting him in a to a do a dual pharmacist situation the problem there as the district court pointed out was that mr stevens did doesn't engage in dialogue and it wouldn't part of the dialogue be at least asking maybe somebody who's in one of these two pharmacists store actually lives closer to the one where mr stevens works and they could switch and everyone would be happy but no one explored any of those possibilities no one looked into whether he could be accommodated by being moved to another store and it was just you sorry you have to perform injections or you lose your job your votes zero points and there's a lot in your question and let me start with the interactive process part part of your question most fundamentally it was mr stevens burden at trial to to prove that regardless of what happened during the interactive process that there was a feasible accommodation there was a position available and he simply didn't care enough or second because he didn't carry his burden of showing there was another feasible there was a feasible accommodation this court has held in a bride in other cases that even a complete failure in the enter active process which i get to know we don't believe in a complete failure on the law doesn't when there was there evidence in the record i'm mistaken about this and that and some of the other stories there would were were times when there wasn't coverage and this was sort of for injections and this was worked out by saying people could make an appointment to come in another time which one was referring to is a document that was targeted at when the program was first rolled out and the pharmacists were still undergoing undergoing training and so it could be that there were appointments made in the initial in the initial stages but but in terms of the fit the job and the position on there was also evidence that there were times even into a pharmacist stores were a pharmacist would have to would have to work would have to work a lot so i would say there are sort of two bases for the district court's decision that the dual pharmacist option wasn't wasn't feasible number one he didn't share that there was another such position available and number two there was evidence that that even in those stores there would be two when  if it was feasible when it was for the convenience of righted to have a system where in a certain store or for a particular period of time customers would have to make appointments why wouldn't it be feasible to do the same thing in the store when it's for the convenience of someone with a disability assuming that a disability well again your honor that was and i take your point interview it was at the beginning of stage i think they hadn't trained everybody or whatever because not every store has a twenty four hour injector and then they make a decision that somebody may have to make an appointment outside of those hours right so why why isn't doesn't that show that it's feasible to do it's just the right it chooses to do it when it's good for writing it and to have some include some inconvenience for the customers but they won't do it to accommodate mr stevens well his was at the beginning of the program we did there we were in the process of having all of our pharmacist be ok i mean to stand the answer i'm taking up too much of your time you have two more things you wanted to say as you can i go back to essential functions for a second so i think it was it was it was litigated whether this was an essential function and one of the documents that came in was the job description description for pharmacy manager li yes or no there are actually two job descriptions in evidence one was for pharmacy manager one was for pharmacists for purposes of the essential function inquiry both were identical both didn't require that the whether pharmacist mantles alarmists is in the document or another was testimony by a right a person the pharmacist had as an essential function injections but was there a document as well yes your honor there were documents there in the there were the actual documents he found the job description for pharmacists manager and for pharmacist both job descriptions list that certification as a job requirement to be a certified immunize or was a job with a job requirement was an essential job requirement to have be certified to give injections there was an additional requirement on the first page of those documents that talked about and developing business by appropriate clinical immunizations your honor is right the document does not say exactly immunisation at that point it does however require an immunizations are difficult so that whether you are it says immunizations certificate yes your honor it does it does require that if you give me a wasn't just that he got he went through the training and then wouldn't perform injections he didn't he wouldn't go through training no your honor that's that's correct and he initially sought to have his doctor in fact give him a  question is what the jury could decide right so this is one piece of evidence that favors you but didn't one of your own people testify in effect twice even after being asked to clarify i was asked to give a list of the essential functions and didn't include anything about injection joint i'm glad that you gave me the opportunity to clarify that you're talking about this is on g three sixty seven this is the testimony of mr spanks the testimony of the question that mr sting's was asked was about the job in twenty ten before him it is a nation became in our view an essential function of the job done and this again this is on  immunization program answer yes question what was mr stevens position at that time at the ritz twenty ten and it what store so the testimony that they point to the next question is what were the duties response yes and the question very first of all just this this so called confusion in the law it's wrong it's position that once the district court dismissed the failure to accommodate claim that there wiped out all the claims and that's not the case and i think the crux one of the cruxes of this case is was this any central job function and the district court charged the factors that are set forth in the c f r to the jury in determining whether or not this was an essential function there was one factor we believe that was in favor of writing a fair trial and that was that right he took the position that once we decided in two thousand and eleven that we were going to put this immunization program into effect giving injections became an essential job function but if you go down the list of the rest of the factors that are listed in the c f r that were charged to the jury all of those are in favor of mr stevens including the fact that in the camp description of pharmacy manager which is the position that mr stevens held in two thousand and eleven it's not listed in the essential duties and responsibilities it's on another page it's listed is something that they should have but it's not listed in the sixteen essential duties and responsibilities what would you what would written document at the same time describing the program in their description and there is exhibit p three and page thirty one that clearly indicates that not all pharmacists are from a c managers are going to be giving injections because it's specifically provides for the appointments to be made in customers they have to make an appointment where there is not an injector available at all times there was an allusion a trial will this was alignment and they have to cashier she has make an appointment for tomorrow morning and they handle it but the fact that they can make an appointment when no one's available doesn't mean the store asked him to deal with somebody who can't give him a musician they have to deal to the extent they had as counsel for a date said if there is a feasible accommodation available but you're saying if the fact that they could schedul appointment and because nobody was available is the same as scheduling an appointment when somebody is there who happens to be unable to give an immunization you're saying those are the same i'm saying that they anticipate in their description of their immunization program situations where there is not always going to be someone in the store who get their hand in jack they wanted but they want to be able to serve their customers as well as possible so they say as long as we've got people on duty who are pharmacists we want them to give immunizations why isn't that a perfectly good business off again i think it is but i think it also provides because they have that in their policy manual i think it's difficult to reach the conclusion that it could not also serve as a feasible accommodation are but wait isn't there a substantial difference between we recognise that sometimes there will be a situation where there's no one on hand to do immunizations and we can cope with that when that happens fund for to it and we have to accommodate in a way that will guarantee that  some particular store no one will ever be able to walk in and get an injection they'll always have to make an appointment and then we'll have to bring somebody from somewhere else to accommodate that appointment in and if that's the case you're on i mean there certainly was no argument at trial to there the fact but certainly there was testimony that there were seven or eight great stores in this immediate vicinity and they do switch people from store to store they cover each other they make people available and certainly going along with that argument there's no indication that they could have not sent a substitute over if there were the case and if it became essential that they have to have an immunize are there was no proof and that's wrong and it's your burden to show feasibility it well this all came in in terms of whether or not there was a any central function it's our position that there isn't confusion between these two claims we had a claim in here under the eighty a in the new york state human rights law for wrongful termination and another position we have is the air trial there was sufficient proof that this was not an essential function going back to the factors another factor to be considered that those judged church the jury is the amount of time that was fun for forming this function goes into how essential it is mr stevens testified that he himself personally as an individual would break eight ten nine hundred prescriptions would fill most prescriptions every week in the entire year two thousand a lot and in the three stores that were in the immediate  be considered is the financial impact am radiative not requiring him to perform this no proof was offered on him so it's our position that if you consider these factors there was ample proof on which the jury could have determined that this was not any central function if it's math and essential function of his job at the time he's terminated in two thousand and eleven to give injections that he was not required to prove a reasonable accommodation in order to make out his wrongful termination claim no accommodation was required because he didn't have to perform their function in order to be otherwise qualified he responded to the questions he heard nothing from them until august when they said they came in and met with him at the end the store told him that they did not consider try piano phobia to be a disability under the a that they did not think that they had a duty to make a reasonable accommodation and that if he didn't start giving injections he was going to be terminated and two days later they send a letter confirming and he was terminated then what is it what is it about that that makes the seem like retaliation rather than a dispute about whether this was or was model and essential function or whether this was or was not a genuine disability again it goes back to their response to his request which was for a reasonable account yet and then they said we need no more information he provided the information and they came back and said well we consider this and we disagree with you we don't think this is a disability  now that may be wrong what is the evidence that that is retaliation didn't wasn't the summation itself by the plaintiffs saying the real reason he's fired is because of his disability not not as retaliation well the reason one of the reasons he was fired we maintain and that the proof supported at trial is that they wanted to make an example of him tracey birch who was the vice president of labor relations and general counsel for writing a testified the decision regarding mr stevens was made before mr stevens they had already decided that once they initiated this they at every pharmacist was going to have a little more reason they're making an example of him not to say people don't receive disability claims they're making an example of him that we take the position that this is an essential function and everybody has to do it now that may be legal for all i know but it's not retaliate and it's not saying we don't want any complain assigned designated by right a to interact was mr farley and he testified that he had no direct contact whatsoever with mr stevens other than to sign the list of questions and then to be present at the time that he was terminated so they also failed to engage in that interactive process that they were required to do so it's our position that if you consider each of these claims separately there's the wrongful termination claim and you take a look at the elements of that we believe that they were demonstrated adequately a trial there's the retaliation claim and then we also believe that the failure to account a claim was proved in my right that you only need one of those you only need one actually need one of six because you both new york and federal crimes and on some of the issues there might be a difference between new looking for that's correct and the new york state burden with respect to demonstrating a disability is even less than it is under the a b a and we believe that and i think in a sense it's it's a non issue because this court could i think the only the only point on which there is relevant differences with restarted the definition of what comprises a disability  think for purposes as prevailing although we dispute that it's a disability your honour's could could could assume that it is a disability under federal and state law for purposes of deciding this case and me  our position is that we we would and should still still prevail  any numbers of disability or new york even even if it's a just even if it's an even if it's a disability are overarching positions regardless of whether it's an essential function or not every crave each of the six cl wrongful termination and failure to accommodate such that if this is not an essential function of the job and someone who is otherwise qualified but has a disability and can perform the essential functions of the job you can't fire him not to worry about accommodation he can do all the essential functions of the job without any accommodation respectfully no your honor because if they're still happy he still has to show proof if we he's what he is again allegedly as failure to accommodate everything that a sighted person can do in this job some of which are things that people regularly do in this job but he can do all the essential functions i took it you can't fire him just because he can't do something congenital that a sighted person could do person do the same thing and wasn't fired that would be a case where there would be to something else there still has to be other evidence to satisfy the because of wrong it are to our primary contention is that mr stevens tried this case on the failure to come in and as your honor your notes you can use a failure to accommodate to meet the because of element this is not a case in this case it does that and there's no evidence of any other you still have to show discrimination and there's no evidence in this case other than the failure to accommodate any discrimination but what it again go back to the case of the blind in the sighted employee is if the reason given for firing the blind employee is that he cannot perform certain tasks that you know we like people to do and that and he says well maybe you like them to do that but it's not an essential function of the job and so i'm qualified and you're firing me because i can't do trivial things now couldn't a jury infer from that that the reason they fired him was they just don't want people around who make life a little inconvenient not reader to do an essential function of the job if reading is something that's essential well if there is something that by definition or by finding of the jury is not essential and the thing he cannot do with or without an accommodation is not essential the test is is he qualified because he can with or without an accommodation perform the essential functions of the job i take it mr stevens is arguing i can perform the essential functions of the job without any accommodation it's only something that is in essential that i can't do and if the end if i'm fired because i can't do something that really doesn't matter to anyone then the jury can infer discrimination there's no argument there even if it's not essential you have to show that eliminating it which is what we're talking about here that eliminating it even if it's marginal is still feasible so for example let's not essential therefore i've been discriminated against because of my disability the farm and would still have to show that asking another person to drive the fire truck would be feasible and if it he doesn't car