know it was a tremendous inconvenience of course i'd like to start by briefly stating that it is and has always been our position that this city and county of san francisco has a policy of discrimination against permanently interest firefighters that existed in the year one nine hundred ninety nine which is the year in which this claim was filed that existed before nine hundred ninety nine and exists now the policy which existed and which we have attempted to to argue specifically was or as been articulated in forty two u s c twelve one twelve b that prohibits discrimination against employees with disabilities by limiting segregating or classifying them in a way that adversely affects their opportunities or status because of their disabilit list a list which they had on their computers which they did not want to call up and go and make part of their limited duty list for individuals who were able to recover return to duty and who they a were restrained from referring to that list because of the ramifications they felt it would have and that was that they did not want injured fire or just individuals with disabilities applying to mr shane was transferred from treasure island to the fitness center in violations of the seniority rights which was a status which he would no longer enjoyed because his injury and also in that year it commenced when he started being denied the equal pay for the work which he was performing at the fitness center it was those two elements that took place within this period of time within the one year prior to the individuals who are permanently disabled i have no future within the fire department they are unable to progress within the fire department because of the standards in the policies of the san francisco fire which existed in ninety nine and exist even today  list but these were this is a permanently disabled firefighters who we submitted declarations from that indicated they did not receive the administrative what is there there is two categories of pay which individuals can receive administrative pay is when you are assigned to administrative position which is a forty hour a week position  in lieu of that you can receive assignment holiday premium pay if you are in a forty forty hour week in a position staffed seven days holiday pay which is pay that is is presented to all individuals then there is premiums for either the administrative pay or this holiday premium pay and a holiday premium fayez what he was compiled to disappearing that well the only evidence would be the history of what had been taking place up until that time as the evidence had been pointed out one when firefighters sha attempted to first get transferred over to treasure island there was a hostile confrontation between shane and gamble a gamble was possible against that and know that's denied by by the city that which testimony is position gamble also was the video penya in that he does not know why just permanently disabled firefighters remain with the city and county of san well the chief has a right to to assess to certain administrative pay yet no list of those jobs which were designated for administrative pay has ever been provided when we don't even know if it's ever existed his frame of mind was making was in ministry in this program and he i don't think cheap gamble the nice fact that he felt that the permanent this to this table firefighters were he didn't know what to do with them there was no plan as to what to do with them and they were treated in such a manner in fact if they were going on i there are various he has testified also and we have that in here they were denied quote compositions because they were fearful that most of the firefighters that were had greater seniority were mailed and that they may find it to be discriminatory so they would deny quote plum a treasure island in september of nineteen ninety nine ok about what he was moved over to the fitness center at the whims of the fire department in violation of his seniority you morning oh please the court my name is jonathan rolnick i'm a deputy city attorney and i'm here representing the city in this he and straightforward employment discrimination case the issue before the court is whether the appellant mr schilling has presented steps sufficient and substantial evidence to avoid summary judgment the district court determined that he had not and the city continues to contend that he failed to meet his burden to prevent to present specific and substantial evidence that the reason he didn't get administrative assignment or holiday premium paid during any paid period was not motivated by the fact that he was disabled between when he was first assigned to the fitness center and then for the following year there were a number of pay periods in which he did not receive the holiday premium pay there were also a number of weeks in which he received i or the holiday premium pay or regular holiday pay for a monday such as the july fourth weekend when persons in some sort of administrative assignment or not on fire suppression position would have  a holiday after that point i believe if you check ms declaration i can give you the cite for that mr sze received either holiday pay or holiday premium pay in every payroll period and in fact there were a number of payroll periods where they overpaid him for example where there was a holiday he received both the holiday paid for the monday off as well as the holiday premium pay for the same pay period and the huge declaration is a i'm sorry i don't have that that's in the excerpts of record but the declaration demonstrates and there is a spreadsheet there that list by payroll period the regular pay holiday pay in premiums  sze received over the period in question and this issue is the only issue before this court this is the second time this case has been up on appeal this court decided the last time the case was up on a that any issues that mr sze had with respect to his claim that he was subjected to unlawful harassment that he was denied seniority or promotions or a particular  position were all time barred the courts then back down to the district court first single to look at a single issue and that single issue was whether or not mr sze was denied administrative this time and paid because of his disability how much money are we talking about here i believe we're talking about several hundred and perhaps as much as as as a thousand dollars now the city has presented its legitimate nondiscriminatory reasons for what happened here and mr shane has not presented the palace not presented any evidence that shows that the motivation the intent of the department to deprive him of pay during these limited occasions was because of his disability there's no evidence that miss you or anyone in payroll was aware of his status there is evidence in the record in the declarations of deputy chief of administration a sorrow binny saying who was the department's human resources manager at the time who received administrative assignment pay and there were others who did not they also presented evidence in the declaration that there were firefighters who were not on light duty who were war working in some sort of administrative assignment who received administrative assignment pay and did not and through their declarations the city established that under the m o you achieve the department has the discretion to decide which administrative assignments get administrati assignment pay and under the m r u those who are working in nonstop question jobs other administrative jobs not designated by the chief as it ministry of assignment pays will receive holiday pay and holiday premium pay for those pay period in which they don't get have a holiday off there's simply no evidence here of pretext or that legitimate nondiscriminatory reasons the has offered for its actions were in fact false all that mr sze has presented is broad conclusory statements about people status was disabled or the fact that they didn't get something but he offered no underlying facts to lay the foundation that this had anything to do with any one status as an individual under the americans with disabilities or the courts that are correct duties of a firefighter but the city has continued to find work for him within the department has continued to pay him at a full firefighters rate and he's continued to earn over that period of time all of the benefits that a firefighter receive to figure out how we're going to accommodate people and work them through the system and find productive work for them to do and without that last would be very difficult to do that the city submits that there is no question that the district court ruling here was correct that there is no evidence to overcome the legitimate ny this criminal tory reasons and this court should affirm the district court's ruling thank you and the question thank you can thank your premium pay are in the x or from the record and i think if the court reads those and looks for those who see that there is no distinction if you think that there is a distinction between legal holiday pay when the city talks about having accommodated the injured firefighter the city simply talks about giving him a position which is a dead end position then stripping him of his status as a as a firefighter there is no right to advancement because of the goals which have been set up you have to be able to perform all the duties of a firefighter in order to be promoted there is no status as a firefighter you do not own a position as normally as all of the firefighters do so this is not a reasonable accommodation there's been no attempt at all to make room for the permanently disabled firefighter within the department to advance within the department to perform those jobs which they are we would you require this court to have the city man fire trucks with save firefighters i  think your first of all that obviously would depend upon this bill but i think your honor why would the end upon a disability it would depend upon the type of this really but but i think the more important question is is that higher suppression is only