who have to prove it it is correct proposition that he is not in fact qualified in that he does not meet the minimum qualifications that were set forth for  it matter where the burden of proof fall well it matters because he actually whether he's qualified or not isn't relevant irrelevant under the fia it's relevant under the aviate it's an it's an element of not only do i play a doctor on t v that i actually am a doctor and i you know completely fabricated that and i got a position requiring a medical degree  then i couldn't be fired when i found out i wasn't a doctor because it didn't matter that i have no qualifications oh absolutely you could be fired and i were not doing a lot of well you know what they can't do is they cannot discriminate against you or harass you because you're mentally disabled and once you're hired into that position if they if they learn that you weren't qualified in the first instance they can certainly terminate you for the lack of qualifications isn't that what happened here absolutely not absolutely not what happened here is he went to work he was hired for the position even though he didn't actually have the qualifications and well fabricated things on his resume he fabricated things on his resume  certainly and we reinvent that the issue that there's two issues here that they've brought up actually there's only one it's that they required five years of clinical experience he put on his resume that he had seven years he didn't even five he had three people he had three post medical school hey that's right well right and that's the same that had been clearly stated in the job requirements we demand five years of experience post medical degree right set the criteria to obtain the job and they said five years of clinical experience your doctor understood that's mean all clinical experience because he had three and a half is undisputed if you count his clinical experience during medical school he has over well all i can say is he did he did misunderstand well let's go on the assumption for the remainder of the questions that he didn't have five years that he had three ok or less than five anyway so that he didn't meet the minimum qualifications which were legitimate qualifications where does that leave you it's totally irrelevant to the hockley name and the reason it's under irrelevant is under the green case that came down two weeks ago that was cited by are the primus facial elements to prove discrimination under green there's three elements the first is the plaintiff is a person with a disability or mental condition dr kwan clearly qualifies under that element he's bipolar clearly qualifies under the fee ha the defense the second element is the defendant made an adverse employment decision thirdly because a plaintiff disability or medical condition he was terminated so they clearly made an adverse employment decision and he was terminated because they put him on disability and then he refused to go on long term disability they terminated him because of his disability at the time they terminated him they didn't know about his qualifications that there were any accurac right and you get past the perma fish case that's that's where i started by saying it doesn't matter who has the burden of proof in fact he wasn't qualified for the job so even if it's up green and this is all laid out on page seven of the green opinion very clearly once you've established this problem facing elements the burden shifts to the employer and what the employer has to show is that the employee is unable to perform the essential functions of the position even with a reasonable accommodation doesn't have anything to do is going to even i guess go back so i don't want to i want to understand a case that says right the beginning clean of green is there because of a reasonable accommodation challenge is not how the case got to the california court of appeals that is originally i believe that's correct i don't really need to change did it turn into something that it wasn't i mean i don't i don't think you can play fast and loose with these cases because you're trying to slice and dice various california cases i think we have to be quite clear as to whether their accommodation or disability cases was green accommodation  sorry that's not correct it really is a disability discrimination case at page begin and end of page three is the section about disability discrimination which includes greens addressing  s shots as well as had a back problem let me ask you this if i may so for the purpose of the question but i'll go along with you so far as there has been a strong prosecution case the employer is now required to show that he cannot perform the central functions of the record i think the employer then has two arguments as to why he can't form essential functions the first one is directly related to the initial qualifications it may be argued that  you can't perform the essential functions of the job without a fair amount of experience ok you don't have a second if you're bipolar and you refuse treatment and you say you don't need a combinations you're not the qualifications versus essential functions at page twelve of the green decision green addresses what is essential functions for how do we define those they summarize them as the job description for the plaintiff for that are their job position the of the job position that the employment the plaintiff holds or desires to hold and in fact bring goes on and summarizes the job description of the plaintiff in green and they focus entirely on the the requirements of the here's the here's what violence me about applying a sort of a physical function job which stationary engineer at the heart that analysis to a case like this one because for example the fed ex case we had earlier today question is is he able to form an essential functions and why is the employer and company not allowed to say well one of the essential functions is that you'll be someone that i can trust but that's and that may be occupational qualification aspect of the cases where i think they they never said in order to do this job dr kwan has to read the literature has to understand the literature has to interact with doctors has to sell our product none of that all they said is he was never originally qualified to take the position which by the way is the same issue that was in real overseas right stuff food sexual harassment case under fisa illegal alien who was unqualified for the position and cannot harass you cannot discriminate not tolerable for someone i'm acquisition and then they were willing to put him on long term disability i think in order to help him you'll get his medication to whatever it is he says no i won't do it right and the problem is their doctors say one he has been taking his medication  behaving erratically his doctor has been treating him for a number of years who's a professor at u c san diego says he has been taking his medication he's finding work the only accommodation he needs is not to fly at night because of sleep deprivation for a five polar disorder and they never engage in the interactive process they never offer to do that there's never any discussion and i am running out of time and i want to have about a minute first of all if you want to save ok i'll address the issue of the accommodation at that point thank you straightforward case as far as i'm concerned which is that the district court made a very considered and wise decision and we fully support her analysis this is a case where you have an employee who came in under false pretenses took a job with enorm responsibility very high pay and and then was unable to even complete the training program because of his inability to do the job was put on leave was paid for ten months of paid leave and when he refused to take any action to address his condition was finally terminated and under those circumstances i think the court clearly correctly decided that he is unable to state a claim i want to address the burden you i agree with the comments of the court that i don't think it's necessary to decide that for this case but because it's such a big issue in a brief outline to address it the california supreme court in the guns decision did address the burden shifting issue it was an age discrimination case but age discrimination falls under the same statute as just full of discrimination so it's the same analysis and the supreme court said that in order that in order to state a crime a fish a case one well it's interesting i mean once you get down to the appellate courts it's a morass i mean there's no question about that we've got cases all over the place and i broke two big binders mostly of those cases because they're all over the place  and greenlight you know we obviously gave that to the court based on our feeling that we had enough of all the obligation to make the court aware of that that decision is not final it is you know that appellate the time to appeal has not yet run on that decision and obviously we think that's wrongly decided but the way i analyze this case is that what is the way they've been analyzed by so many other court decisions which is that the guardian case was really an accommodation case and that it was limited to that context now i actually think that gotti is wrongly decided because all of the all of the provisions of government heard twelve ninety four zero zero are limited by the introductory sentence which says that all these various activities including failure to accommodate are illegal in less there because of a bonafide occupational qualification so in the statute itself that governs all of these disability issues but the california legislature has said somewhere in that process you must show you're qualified the california supreme court said we put that on the plaintiffs our position is we don't care who has the burden he is not qualified we can and the court  not qualified now plans to use to be trying to say that he did they don't need to show that he is qualified ever correct in the process which brings us i think to the key case in that area which is the quinn case which is cited in our papers and the reason i draw the first attention to that case well let me step back for a moment there is not a very clear distinction between qualifications within california statutes in terms of research or prerequisite qualifications of you've got the skills you've got the education and you've got the experience and  that second element of qualification which is you can do this job and a much sort of broader more general basis now this is where i do think the california courts correctly look to the federal provisions that are very similar and we've cited california federal regulation sixteen three point two which very nicely laid out those two types of qualifications all the sort of mess and morass is is on that second issue of who has to show they can't do the job it's not as messy if you look at the first issue with you is really our focus which is does this person have have they've met the requirements of this job should they even be in that job and if they don't meet that training process like dr quinn was and they discover that he can't hear and so he can't do the job and he gets terminated and the court says we don't need to look at accommodation or anything else we realize it was the employer's era but you never qualified for this job you should never have been in this job you can't stay to claim that's it it's over and those are facts this was an individual who didn't qualify for the job and basically can't state the claim whatever part of those kind of said no that doesn't defeat her claim but it was it didn't go to one of the elements of her claim and i just try to explain it in a better way it's those facts where she claimed  of age discrimination in her deposition that came out that she had taken confidential documents in preparation for her lawsuit and that and the employer said we would have fired her for that so the case over it didn't go to qualifications or any kind of analysis of whether or not she could stand a claim it wasn't sort of an intervening event is that stop damages that i agree with that analysis that that's an appropriate an are cases different because the the after acquired evidence goes to show that he can't meet his claim that it eliminates one of the elements that he has to show and that's the way the after acquired evidence was used in two of the other cases used by the district court through the course of litigation that she was not qualified to do that job and the court said it doesn't matter when you found out that she wasn't qualified if she's not qualified she can state a claim end of discussion case dismissed summary judgment affirm we've met the bird he's not qualified the story over so unless you come to the conclusion that you do not have to show that you actually were qualified for the job in order to stand a claim then that's the end of the story the court went on further to find nineteen which is the district court's decision now that is i understand has not been a challenge that is not part of the appeal that was one of the court's bases for her decision that we had properly that somehow he meets the qualification he comes up with something which of course they tried to do and i can address that if you like but he comes up with something even if he was qualified we've shown that we had a legitimate business reason for terminating him which was he couldn't do the essential functions of the job and so given that given they didn't make a showing a pretext that's the end of the story on that level now i do want to address just briefly  that issue of this sort of after hard evidence of his qualifications the application is actually quite straightforward if the application asks for your experience as a doctor or a pharmacist dr quinn completed that application and never included the information that he has brought forward in opposition or much for summary judgment that he had these other experience that should have been counted so even dr quinn didn't interpret the requirements to be pre medical school because he would have included the earth during medical school if he would have included those in his this or taishan of what his experience was and in any case the company obviously has the right to determine what the qualifications for the job are and they have you know it's clear on the record that they felt those were  address the issue that i think is before the court which is whether or not an employee can state a discrimination claim if they never met the original qualifications for the job the only line of cases that are out there that address that sort of more narrow issue are the quinn the quinn cases and the progeny of quinn and those one cases make it very clear that you do have to meet that element of being qualified for the job in order to stay  discrimination claim and there's been really no argument about that in the law in the california courts that proposition seems to be established and and has not been challenged the quintus is not in challenge but setting that aside even if that were not the case the court alternatively found that we had met our obligations in terms of establishing the burden shifting test of showing that we had a good business reason for here i wanted to quickly address the second point that judge fletcher had asked about that i didn't get to regarding the fact that plaintiffs said he didn't need an accommodation that was a complete red herring at the time they terminated him in december of two deposition in this case he says he didn't need an accommodation their decision was not based on anything he told them at that time about whether he needed an accommodation or not total red herring the fact that on the pretext issue ignores the fact that dr hogger says he's capable of going back to work with an accommodation doesn't mention that in her order at all simply says there are doctors say he can't do it therefore is there can't be any pretext it's an issue for the jury to decide and in closing i would just urge the court to read carefully the green versus state of california case it's very clear on the on the promise they show elements on the burden shifting and that a qualified individual