good morning nathan had words on behalf of the college keeping in mind the admonition to keep the remarks brief and to avoid repetition of those items stated in the briefs i would employment as a courier when that did not prove to be enough to satisfy citizens he responded to their request for additional documentation from his doctor i think he may know no less than two or three more trips to the clinic with this back in two thousand and one and give a full and complete the valuation using the functional capacity exam to provide all the information that fed ex would need to re apply and accept the courier position with the company all of the documents showed that mr richest then is qualified to perform all the central functions the physical functions that this job there's no question about follow the normal procedure etc for applying to get back into a curry position than the number one candidate on several occasions regardless of all of the information applicant needs to be able to lift up to seventy five pounds and move with assistance up to one hundred fifty five she's the up to one hundred fifty pounds that's more required than what was required for years on their using their job ordinary job description and the in to record record and the question i have is that you have some conflict obviously between dr chan and his past history and your burden it seems to me is really to show the pretext and that's that's what i think the case ri falls on as i read the records so i need i would appreciate hearing from you what in detail you think needs the substantial evidence of pretext so as to meet your burden that the intention can be if this essentially we intend to discriminate just admitted oh i don't know what if you have a person who has no arms who wanted to be a courier on the job requires left and then there's no accommodation the person can't for some reason use artificial limbs or something i'm not really sure i understand how you would come out with your construct if the person doesn't meet the qualifications once you have shown that the employer gets used the protected class to make the distinction to treat certain people differently it seems to me if it's done we fall into it it's not that they can't first of all there's no qualification for the party the employee discriminated again does not have to show that he's qualified that language that is in the federal statute is not pres feet of the fair employment housing act the proving essential functions has been interpreted to be under lock gobby the case that i brought to the court the recent case i brought to the court's attention last week green versus state and under the california code of the regulations which some insane physician says you can do the job then why you can't the employer will be able to prove that the burden will shift to them in this instance and i would like to point that out before i use the ball  placing the affirmative defense on the employer to prove inability to perform and the health and safety defense because it would be grander surplices surplusage you know if you employer for example did not have to meet this burden of proving inability to perform proving it was current medical evidence proving  himself and all of those things if the employer only has to say hey you know i'm wrong so what i can't prove these defenses but you know i just made a mistake i was mistaken good based belief that he can't perform well the lesson glistening restrictions imposed by dr john because there was no explanation from him supporting a change in mr a medical conditions condition that would explain a reduction in the permanent functional restriction in other words your expert disagrees with the briefing is is it your position that regardless of where the burden of proof falls you win or do you need to have a particular burden shifting analysis to p qualified rather than his fearing the burden to demonstrate that he you know your view on this without contradiction shows that he's not minimally qualified correct and what's interesting is look this is why we made the decision and in the context of a disability discrimination case which is contrasted with a reasonable accommodation case there's that discriminatory intent element effects treated all couriers that's why you  left no restrictions you can't come to work for us and he gets closer to a target that's closer to the facts in the green case but we do individualized analyses of each person like they didn't do in the green case we look at all the information th that it was false or that it was a pretext even if you can show that this isn't correct her battle of experts that's not enough because you have to show a discriminatory intent which as i understand legislat trial to determine this so i don't you can't have a situation where yeah battle the experts put in good faith fed ex keep saying well i don't really think they can work here because of this particular lifting restriction you have a situation where the employee would never under that scenario ever get to show their case that in fact they can live seventy five pounds for the charity of crossover on their actual issue the case on it leave its priests which is high in the five states that if the employer has made a decision based upon the best objective evidence or medical evidence available to them that decision is to be given deference in other words it doesn't seem to make sense in a have evidence indicating that fed ex's decision was something more than then what it was an individual ised analysis where they took the time to make the decision he still don't have a pretext other than what you're saying that is to say you do you simply disagree with your valuation there's no there's no hidden agenda here i just kind of looks to me as though you he thinks he can do it his doctor thinks you can do it not the same thing i think that's essentially the same thing that i let in a discrimination case i'm not even sure i think simply the question is this that x is decision right or wrong see that said that he was restricted to light duty based upon how alone without any individualized analysis i think you can do the job even though he's been doing it for years which is different here and so they are if there isn't really clear evidence that they're making a decision based upon stereotypes that people who have these restrictions can't do the top even though this guy had been doing it and they didn't check to determine if they had looked a little further they would have realized that those restrictions expired what do you want to do with your own doctor who says well you need to get in shape and he's not now in shape and that was just a forty four hour if you read doctor chaunce testimony in full of what happens just bits and pieces that been taken out of cont document but there's a full report three or four pages where he analyzed the functional capacity exam everything he never refuted that in his deposition his opinion remains today the same a surprised when he wrote that on july sixteenth two thousand and one when he was talking about is getting in shape if anybody needs to get to the chief he also makes the point in the deposition that anyone who's not working or working out this would be the guy off the street that goes down who doesn't get all these kinds of tests would be more likely to injure himself but in his medical opinion speed can do that mr richest and can do the work i mean he concludes by saying you know there's a concern for anyone anybody my partner pointed out with me i think anyone who gets into a lift in job is going to be in more risk for getting an injury not just mr