sixteen forty two fifty nine seventeen forty one thirty five nicholas efforts to persons more than ten industries arguments not to exceed fifteen minutes per side ms no four the nicholas he works and worked for worthington industries driving motorized vehicles including the forklift for eleven years prior to an e mail sent by mr hoover saying that he should not be driving it all roads all issues in this case come back to those two facts the jury got it right the jury got it right they held for mr seawards and they said that he is not a threat to  safety of themselves and others now that yuri here the information that during that period of time there were almost two new york accidents yes ma'am they certainly did they also heard the actual documented near miss mr c works and was a pedestrian so he was not to be at fault they needed an excuse to take him off after he said this is discrimination and went into litigation the time and i'm not sure i follow why that matters and may be right the jury heard of they made a determination that's right i mean can't they consider that and make a determination they can they did it was manufactured in that  evidence or it was manufactured to make up a reason for their decision to that even if they were near misses they could conclude differently than you're sure my saying that the near misses were the result of something other than him being  i don't understand why i guess you have to address the problem well it will come into damages later in mr campbell is going to come up here and tell you that's why he's not safe and they're trying to use those things to circumvent the required individual eyes inquiry under the a t f a when you when you assert the formative defense of direct threat they did not do that and that's what the jury found that's city of oakland and then back house which cited keith the city of oakland backhaul said that past experience must be considered by the employer when conducting an individual inquiry which didn't happen and the reason that the living years is important here is number one to show he's fully competent there's no safety issues he's on the safety council but it also goes to his ability to testify to his own damages because he knows how it works inside worthington industries he know how people are promoted he knows how the pay levels work and he testified to that did he lose any monetary consequences of the result of the change in position well he had the same quick answer is he had the same hourly rate but moving him back to the entry level positions put him in a pay level one where he was in a pain level too and that that's a problem because nick testified that his supervisor told him he could not weight yet that's the point i think what he said but you said he could not go he couldn't have given promotions but he didn't lose a promotion during that time did he that have been had never occurred where he would have the opportunity for the  advanced wage headed to get what i think the answer in we can backtrack on the answering question the problem with going back to appealable money and being restricted to these three entry level positions was that when he went he could not he was not even allowed to apply for anything he was told he cannot apply for anything with that understanding and i think we understand all of the point is his wages didn't change it's the opportunity that changed because that now opportunity never came to fruition because he left two things on that yes is a quick answer but i have to qualify that that he got smaller raises because he was going to get smaller rufus i'm raises at a very small or rate with the void topping out in his pay level so he should've been making more money because there there are back wages when that happened it affected  his profit sharing because worthington does profit sharing based on your actual wages and then because he was not able to drive motorized vehicles all of the overtime dealt with filling in with people all over the plant so he needed to drive forklifts need testified you could come in on a weekend and you could load and unload so those are the three ways that money was actually lost and then because he was really good to the pay level one in these three interest level positions he then had a loss of opportunity because when we listed in our briefing there was plenty of evidence during the  during the trial where he talked about positions not only that he went ahead applied for because he was just frustrated that how ridiculous this was and then once that he didn't apply for it think told him he couldn't but he didn't get any of them can you explain can i take you off a different issue yes or a what you get to do that i just want to make sure you are done but on the rule fifty b motion i'm sure i understand why a wall fifty b wasn't fi because and i apologize for this this was not the bottom line is that there is an order one seventy eight order come firming stipulation resolving all issues for trial and preserving identified issues for appeal all my issues were identified in this document actually have a copy if you would like or is it's in the record it went seventy eight  seventy eight and can you go over the issues you raise now the back pay the punitive damages those are those in there yes sir it is it is in and just so i'm clear on the party stipulate i'm sorry to cut you off i'm just going to accept yes it's in there the parties because your time's running out the party stipulated that those issues could be raised on appeal the name of the orders preserved for a den of five issues preserved for appeal and this was worthington's suggestion so we crafted the stipulation to move forward with the trial we knew there was going to be an appeal with thought it was going to shortcut some stuff but it it didn't but within that i paragraph three it says that three a the court denied it during well we did not do summary judgment but all motions were as objections and arguments related to liability phase we're requiring him  to and requiring him to prove the issue of adverse employment action a trial that's liability what about the damages well the damages yes the damages go see the or d the court is the declaratory judgment regarding the blanket policy so it was all spelled out ok i see my time's up thank you coun please the court my name is david campbell i'm here with aaron williams on behalf of worthington industries inc i want to focus on the liability in this trial because with that we think is very clear as to the essential functions of the position  and let me let me give a brief discussion of this plant they bore you get there can i just ask one question that i don't know i just want to understand order one seventy eight or document one seventy eight so you can see th elided that these issues could be raised on appeal in one seventy eight or that they were preserved the back pay them punitive damages we in no way could stipulate as to the merits or whether of fifty or anything like that was preserve for peace in your mind it means exactly that whatever i had that day here here it is we're wrapping up and i think the key point for us is was that the fact that he was going to remain employed but not coming into the shipping  department as to that not operating the forklift i think to use that language preserved for appeal which would suggest that ok all of these issues are reserved for well they certainly are here on appeal i could not grant rights that she did not have that he did not happen was this after the time for filing a rule fifty eight lapsed yes yes i mean the punitive damages the judge found should have been addressed in the liability phase as to it and then he ultimately concluded that because there was no request for an instruction and that he ultimately concluded that through your argument that was one of the grounds that he he did you mean the basis for punitive damages not the damages so should have been the basis for the liability ok with that now as to the essential functions let me describe this plants and the we have requests for admissions and i ask you one sorry on this one seventy eight does the document say something to be a fact that it doesn't create any rights it simply preserves whatever rights you have are something to be a fact says really preserved it doesn't mean i couldn't call why create the document in other words you either preserve them or you don't know right why do you need to create the document your honor it addressed a lot of other issues our primary issue at that time is i believe we were we took away from the jury the damage issue the one damage that was laughed the emotional distress and we took that away and we said we're going to greta this amount and so because of that because we weren't getting to the actual jury verdict we wanted to have something that said it for the record that that's that that's w all right i'll go read the docket thank you as i think that it's irrelevant for the appeal because of the fact that the essential function of this position are so clear this is a plant that manufactures steel coils of steel coils it's undisputed  are extraordinarily happy so a very big plant with the wood trains coming through at times trucks coming through forklift moving sea hooks moving it just so everybody understands a sea hook is a is a crane that the employees can operate from a handheld remote that is moving along the ceiling of the plant we have for close moving multiple forklift at any one time and most importantly the shipping department employees are not wearing ear protection and all the employees testified that they bleed communicated and so that audible communication in the plaintive testified as as to it he testified that when he drives his forklift when he does a c hook he honks the horn multiple times and he does it so much that the employees say he don't need to do it this much and the reason why he said he did that is because he wanted everybody to know he's coming and so the inverse of that obviously is that if he's honking the horn to let everybody know he's coming his coworkers are doing the same he that and that case yes every now and did he drive the forklift he drove the forklift at glaum guess from two thousand and nine to two thousand and eleven was actually shorter what happened is we had a reduction in force to the financial crisis rather than eliminating his position they moved him over to a  position in the shipping department and he slowly progressed into a shipper and that's where the two near misses came in so no way shape or form reserve records support that he thought he was a shipper for eleven years the shipper position just so we're clear he has to navigate this plant there are are still coils that are that are up and it's undisputed and that the emissions show he can see around a piece if he looks around to see there's a forklift coming with a steel coil and so obviously if i if i walk around all of this was it why isn't this a jury question i mean all this was in front of the jury the jury made a call i don't i'm not sure the jury made a call but the call to quite frankly was against the weight of the evidence the undisputed evidence the admission response show that audible communication is an essential function of this position his own acts as a weight of the evidence they are not not even sufficiency there is not and there is no way a reasonable jury could conclude that he can perform these central functions he's not asking for reasonable accommodations he admitted that he doesn't want to combinations he can't comply with the work rules if you can't comply with the work rules and the work rules say as you're coming up to it to that where you can't see the other side you slow down you  slowly come around he can't hear that other who're and we had two near misses sadie heard vibrations right and they explained that i mean she got up and explained it to us but they also explained the near misses to the jury and the jury didn't accept it well we don't know what the jury that or didn't examine just really getting you to where you had to near misses i mean the jury gets to hear that and decide whether or not those are actually are our standard of proof isn't that as soon as he gets on a forklift or says he works on the ship or position he's going to die ok that's that's not what we need to prove we need to prove can he follow the rules he says the rules are in the rules when you get on a forklift you must check first of all is the horn working ok that's that if that horn is not working you're not allowed to operate the forklift number  u did didn't didn't the jury hear all of this and evaluate all of the evidence and the credibility of witnesses and after hearing the case and all of those things that you bring up did they find in favor of the then plaintiffs so if you're saying that he can't be able to do this that's the same claim that was pressed to the jury and they rejected that differently without question the jury rejected that that's not mean that it you're the jury if they do not have evidence that shows that he can perform the essential functions of this position without resort combination that verdict needs to be overturned in this case it must in this case as as i said when he gets on that forklift he has to make sure that the horn works if it doesn't work that forklift can't be operated when he's operating that sea hook he has to make sure that that hook and works so he has his checking the horn by virtue of the see you these for these coils are higher than me if i poke my head around still coil could take my head off so i'm coming up you're coming up he can't hear he can't feel vibration from fifteen feet away i mean  there's no evidence of it i mean you have to honk and so to put him in the ship or position and to have him walking through this deal coils i asked his own expert are you an expert in these in in issues as to protest or in safety in these areas just you know how can i ask you a question did he and i'm sorry to interrupt you but did he testify that he could feel the vibrations and then as experts supported that no he did not he did not he did not testify that he could feel vibrations from twenty feet away there's still impossible i'm not asking if it's possible or not i'm asking if he testified to that i thought he did if he did not see an agenda jersey do you lose if he said that the jury accepted that one ian said to i don't think we could lose because it's not a fa that you lose because you're saying he didn't testify i would urge the court to review the transcript because he didn't testify and i would also say that just because somebody comes in and says for example that i could fly a plane but i'm blind doesn't mean that the jury can say that i can fly the plane i need to have facts that are that are credible are facts if if if you say i'm blind and i can apply pain and then you have an expert testify how blind people fly planes surely that's a patient will there's no expert here who is a hearing expert who said that somehow through to through eighteen thousand pound steel coils that i'm twenty feet away that i can somehow feel vibration of the horn there's horns all over the planet going on i mean he testified that he honks everywhere and so from our standpoint honour's if he believes and it's pursuant to our rules that you must use the horn in order to operate the seahawk in order to operate the forklifts and most importantly in order to perform his duties he's walking around this plan your protection he's walking around where he has steel coils where he can't see what's around that corner and to think that we're going to permit him to walk around in that plant with those forklift or more importantly he's going to be potentially being hit by hitting another forklift or hit those are issues but but the issue isn't a matter of hey that's gamble and he did it for six months and didn't die and so therefore he can do it the issue is can he follow our safety rules the six circuit has confirm reasonable safety rules are appropriate in this case he's not asking for any accommodations and your honor i would submit that if he's not asking for any accommodations and he can't follow the safety rule it doesn't matter if the vibration is there or not he has to slow down not stop as he's coming up that's an osha regulation or rule he has to honk and he has to listen for the other horn and if he hears another horney must stop if he doesn't he can continue to go if he's walking you must do the same so from our standpoint this is a clear that the jurors did not have any evidence that found without reasonable accommodations and that's their position we don't need any accommodations he can't perform the work rules he's admitted the work rules and i will submit that the  admissions which in on a top of the fact that he admitted to all these facts that there is obstructed views that on the sea hook they they communicate audibly and then most importantly the court found that summary judgment the court found that in a mission that i not only did he a mid to but i also showed it to him as deposition he testified to the veracity again and so this is an admission that he admitted to and deposition testimony that he verified and mitt that operators of the  must be able to hear audible sounds in order to avoid injury to others so it so that's what he's admitted to that's what he's testified to so he they claim he's qualified to operate for less overhead cranes and other motorized vehicles because you certified him to operate them and he did so for eleven years so that's where i was referencing you're saying that's all right he'd heat for eleven years he worked in it it's on page five of our brief he worked as a seasonal employee  worked on the slitter line he worked on the pickle line the shipper position i think is important look at what the essential functions are you must operate forklift yes he must operate a ceiling so i'm sorry on the slitter line and the pickle line the pickle lines where he worked for eight years the manufacturing line yes he didn't operate any he may have it at a point taken a forklift to go down the line and pick up a steel quote and come back here he's got to go through trucks that are non worthington employees who are honking emissions that they haul so how is he getting here the home he's got to navigate the train that comes in our facility he then has to go pick pick up coils on a forklift way back in the plant and so in order to do that he has obstructed views which he admitted to on and his a conclusive facts and rule thirty six he's a mid to there's obstructed views so it obstructed views and with other forklifts how is he going to operate without hearing you told us that  lift is honking and they almost run into him on another one he almost runs into somebody because his horn wasn't working and he didn't know his horn wasn't working and he didn't know and so from our standpoint it in the near misses are only relevant to the fact to show that look this is a very dangerous plant this is a plant where audible communications are necessary and essential the rules required he can't comply with the rules i understand a jury and a jury hears and sees mr seward sen jury says he's been here and they argue that he's driven forklifts for ten years i get a jury and i understand that but in this case we asked judge to hari and i think quite frankly he didn't give us that the because this was judge carr's case he didn't look at the legal issues as he normally does normally we have a whorl argument he gives us questions of fact we answer questions before our core argument on the rule fifty we just got a decision to go back to that yes i'm looking at paragraph four of document one seventy eight which says the parties agree and acknowledge that paragraphs two and three those are the two that set out all of the various things that you know you're stipulating to th are intended to preserve all arguments for appeal other than arguments as to the damage amount and that neither party will use this stipulation to argue that arguments may not be made on appeal what does that mean that we got to the point with the jurors were with where we said look instead of having the jurors come back with an emotional distress damage we don't want mr mr stewarts and during the course of the appeal working in the shipping department it was important to us that we were able to have him working in a position that was safe for him and for others during the course of this appeal and so we entered into a stipulation which was part of aid of a settlement where we took it away from the jury as to the emotional distress and so what that means is we said look we're going to set the amount and quite frankly she's violating or because she's coming in to say that this order somehow this stipulation somehow gives her arguments that i think that th bottom line is this was just simply something that said look we reach an agreement go file your appeals which she i believe had already done or did shortly thereafter i believe she did it even before this phase and it in our view it's we shouldn't be arguing it's says you do or not to argue it on appeal i couldn't give additional rights neither could they if i missed it or if i didn't file rule fifty rules paragraphs two and three example three starts out in entering this stipulation seawards and does not waive the following objections to the rulings of the court identified above any expressly retains the right to pursue these issues and objections on appeal and through any post judgment motions a the court heard in denying plaintiff motion for summary judgment b all motions objections orders and arguments relating to the liability phase including but not limited to court's ruling that serious and was required to prove the issue a dead issue of adverse employment action a trial see the court or in denying plaint preserve all arguments for appeal other than arguments as to the damage amount i'm just trying to figure out what that means in your head what that means in my head is that that we are done with the trial today that's what we were being done with and that as to the the amount there we filed a rule fifty after this and they did they filed motions in opposition and filed motions as well there was absolutely no way shape or form that we weren't following our rule fifty we were preserving our arguments and we did and we found our rule fifty motion it was briefed extensively if the district court judge who was who was there for that believe that somehow these issues didn't need to be briefed we would have immediately want to appeal  we always saying is that day is we are saying i'm not going to use this order i'm not going to use an agreement that the judge was pushing us it was friday afternoon let's get this case done and we're not going to use this agreement this on emotional distress to argue on appeal if she's doing here is the key point is not to use that stipulation to argue on appeal i do your honor it did in no way shape or form excuse zenda filed their  motions and if it would have they would have explicitly stated that in there and said that they don't have to file from our standpoint it was just simply a matter of the parties confirming that we were moving forward with that the trial portion was concluded thank you counsel th it's disputed in controverted but paragraph one seventy a document one seventy eight was created and filed the last day of trial of the damages  trial before it went to the jury instead of going to the jury on the amount what that document says is nobody can contest one hundred fifty thousand dollar amount that we stipulated to we have every right and i was immune take any chances not responding to their fifty b motions and there was also additional time on another issue that wasn't even appealed so that we don't even needed i don't waste my time on today so that's where all the time is between  and so it was filed before any fifty motions ok can i ask you a question about the merits did he testify that he felt vibrations when he was turning the corner and that's how you avoided causations his test sees you know but if you can't see they're saying you can't see the coils are in the way you turn the corner another one is coming from the other side you could run into each other all forklift drivers that their concern now is because he's walking through the plant so he's in addition to concerns they are in one walking through but the second their main concern is operating the forklift ok well there are special precautions there certification he was certified is either october or november of two thousand and ten on the forklift again it is in the record and it is also i think you're pressing your argument and i'm quite candidly interested in the fact question that expert testified that he was that there is a heightened sense of a visual acuity and peripheral vision my my client was also in a high school athlete so we know that we have a higher peripheral vision and he's able to do that he was doing it and this it the issue is not can he see it there's the training to make sure that specific things are done there's also passive travel there's a lot of safety rules and regulations that he's been following he's on the safety council he has been doing it and regardless of what mister campbell saying he we did not testify he did it every day we testified that he did it but there got to there was a certain point in when he was in shipping from two thousand and nine he was doing it every day there would go in spurts and he but he was doing it every week he was doing the stuff he was certified from back on it they're the ones worthington's the ones that said he was qualified to do it because they recertify it that's so here that a company subsequently determine it's a safety risk because they have missed it i mean they're going to get sued the companies can't wait under some of these circumstances right because if they think it's a safety risk and don't take action and then there is an accident what their puts them in a precarious position well you've got to prove the direct threat defense if you're going to assert it you've got to do an individual lies in corn they did none of it that's what the problem is here they got a guy that's been doing it for eleven years and then they get an e mail they didn't even they said if you want it sent from two thousand and nine no what they said the i'm sorry go ahead i'm sorry the jury the jury agreed with us some frequency yes but the last from two thousand and nine was that he was in shipping they downplayed what he was doing in shipping it was a temporary position but he was there full time because he was a permanently assigned up to two thousand and ten he became permanently assigned in two thousand and ten and nearing the whole time that he was temporarily assigned and permanently assigned he was operating these things for four every day but in addition that his performance evaluations talked about his safety and how he wouldn't hesitate to jump on the floor scrubber there is just a plaster of evidence but understand this jury of his peers i get it i get because you and i we don't draw forklifts that initial like the police in that really happened fair enough and that's what mr carville said during jury selection i get that even to the forklift drivers but there were three forklift drivers on our jury and they said they would listen to us they were mr hogan his can four two zero two four two zero five and then four to five three to four to five four mr webb can in particular said i don't know and mr carville said well i get that can we it will you listen to us do you think that you could hear be open to listening to what was happening and what what we did what mr seawards and then he said yes this was a jury of his peers a jury that had three forklift drivers on it that said he can do it they all work in an industrial setting so if the jury says that he can do it and he's been doing it our contention is is that at this point all should please co jury verdict because they're the ones in the best seat to know they heard everything and they decided for themselves thank you counsel time is well it's quite sorry or the case will be submitted clerk recall the