this dark was seventeen year employee who had a history of athletic epileptic seizures it's even fifteen or sixteen years old when he applied for his position with the county he disclosed he had a history of seizure disorders and for seventeen years he had good evaluations of the employee he'd never had any warnings and i think this is the most significant part of this case is that this employee was discharged after having a seizure on the job he cited six other employees with no disability who had been  had similar incidents accidents at work with no reprimand no no adverse employment action and in his case  mr dark gets he has the benefit of having an aura some epileptic people have an aura that warns them you may have a seizure today and the evidence i half of the time mr dark would have a seizure at the time he would he is he is a certified diver which tells you something about the nature of his ability to control all these seizures and to do things that would otherwise be dangerous even though he has never left the condition  and so he took himself off the heavy equipment and with flagging that day at the break time the job of rest about one hundred yards up the road and after the break  himself and another fellow moved the pickup off the road and they were just going to hundred yards they were going to highway speeds they just moved it up the road a little ways when the teacher occurred the passenger merely put the vehicle in hard to stop the vehicle there was no property damage so rather than make reasonable accommodations the employer first of all there was no duty to report this incident to motor vehicles but the road to provides or good reporting and that caused him to lose his cel for a period of time  in the facts in this case is the factual question to be decided not in summary judgment because of the the long term history i submit you will not find another kate were a long term employee has been doing the job for so long and been getting good evaluations that is summarily discharged for for one event that no question it's it's related to the disability council what struck me about this case was it appeared to have been tried not as an eighty eight case but as a wrongful termination case can you help us sort out how how this happened while there was no trial part of the problem was that when it came time for for thirty we should have got it to the counter by four thirty but we had to mail it that day we didn't know the regulations that changed since nine eleven you can no longer drop the package in the mail have to go off the next that answers your question i didn't see that we have a let me ask let me ask a totally different way suppose all there was was evidence of the or yet mr dark continuing to drive the vehicle and that was it could the county not have terminated mr dark specifically for failure to control that situation failing failure to take himself off the vehicle knowing that there was a risk of an event they could if they treat everybody the same way they can't single him out because he has a disability treat him differently as i say and even the record there are there's that evidence of six other employees who have more serious accidents and not even any disciplinary action which raises the question the fact whether you know what was the motivation for this terminations as a matter of fact the insurance company from the company is the one that required that this employee be sent for a pittance to work evaluations and to make it worse the county didn't try to accommodate him rather what they did they had county council in the misleading three page letter to dr melton before dr melton saw him that said mr dark kid had a previous accident in june of two thousand and one and he drove a vehicle off the road  the evidence is that he drove off the road and it was just an accident and in the course of going down a very steep hill he did have a seizure either either going down the hill or we need they had an impact on the tree after the accident he was having a seizure but again it raises the question the fact well what are the facts here  not to predispose the independent medical examination examiner to say by the way he's already had one serious accident and this is this is the second  so you never really got to accommodation for example no no and  here the employer tries to make it seem like you need your commercial drivers license to do this work but we've submitted evidence that under motor vehicle rules you do not need a c d l to operate heavy equipment on the job the only reason you need a cd ellis to transport heavy equipment to the job and that's darks is that the only incompetence two to three percent of his job done without actually  try to accommodate him and they did they would even discuss accommodations there were so many things they could have done flagging positions opened up because  troubles me about the way in which this case was approached was it was really looked at by the magistrate judge yeah as a wrongful termination case without any  attention to some of the concerns that are specifically laid out in the a t f a qualification that sort of thing which then trigger then perhaps the board might get properly terminated for costs but that's not what they said they went into all of this analysis of the disability the medical issues and that sort of thing such a lawyer that they have no right to terminate what you have to go through the process do not such as you've indicated in hutton's three steps and at that point you have qualified and disability then you have to reach the misconduct or determination for cost you can see that i agree that the crux of from lee's decision was along the disability and accommodation route but but in terms of accommodation they're not no one looks pacifically at that and said well maybe not a fighting position maybe not heavy equipment operator but mr now this mission to date date data entry some other position with the county that process didn't occur not required to create a new position to accommodate a simple individual if there is a position in which they can fit and we are in the accommodation realm they should comic was there enough to raise an issue of fact that should have been delivered later i'm not sure what are you talking about far as of late mailing of the summary judgment well the fact that they were not addressed by the magistrate judge well i think if mr bork was a new employee perhaps the employer's approach may be well founded but here you have an employee with seventeen years of doing the job is the how can you suddenly say after years of evaluation all of the sudden he is not qualified to do the job that just i just d get with the facts in this case fact of the matter is he had been a good employee for so many years and you know he was probably fifty two years old at the time that he was terminated so clearly there was never a problem before this been documented in this record all of a sudden it turns from a work  related terminations or disability related terminations to misconduct and i think that was on advice of counsel that recognizing there was going to be difficulties in trying to just terminate mr durrant without even a warning we're not we can discuss this thing with the offsets can cases that the defendants raise where the employee was asking for a second chance here we're we're asking for a first chance you know give this guy a warning before you terminate you up especially where there was no serious injury or any property damage mr hernandez in the packet of information that you've submitted a good taken after the report recommendation issued did you discuss the possibility of other positions at the start might be able to elicit accommodation yes if it was in my