perform the essential functions of the job with reasonable accommodation and the district court concluded that mr mack the bitch was qualified based on three legal legal errors which i'll discuss and they resulted in a judgment that essentially punish cosco  accommodating mr mack of h while he was on temporary restrictions and punished cosco for not criticizing his performance during that two year temporary restriction period so the district courts first error was essentially requiring cosco to  eliminate an essential function of the position and that is the car assistance function whereby the front end assistance will assist a member or a customer from the checkout stand push the cart to the parking lot in the system member to load the car and there's no dispute that that function is essential the district court in its first order and in its rule fifty to be order said every function in the job description is essential except for cart retrieval in the parking lot so there's no dispute that the car assistance function is essential plaintiffs agreed they did not dispute this fact and plaintiff also admitted that he couldn't perform this function anymore during the job assistants meeting the  both on the job description list as well as the job analysis the two sort of go hand in hand both are distributed to employees at the beginning of their employment and the plaintiff acknowledged that he received both of those and so i believe that the district court relied on both of those documents and there is testimony in the record uncontroverted from mr garcia the warehouse manager as well as from plaintiff who acknowledged that the job description is an act accurate description of what evidence in the record would support the conclusion and maybe if there isn't any you can just say that lifting more than twenty five pounds or pushing or pulling more than thirty pounds is an essential function front and so i would refer the court to the job analysis that does talk about how lifting is required continuously in the job for weights over eleven pounds  so it's a frequent occurrence pushing as well is also in the job analysis it's not in the job description itself it's in the job analysis and there's testimony from both mr garcia who is the warehouse manager and was where keep again cosco and from mr magic of itself acknowledging that each of these functions as a potential for lifting over twenty five pounds and pushing and pulling thirty pounds there's also testimony from the leave  specifically say there is not a discrete finding that says lifting over twenty five pounds is essential what the district court said is each of these functions is essential and that plaintiff could was performing the job because he could ask for assistance whenever his restrictions were exceeded but what that really means is the way costco operates and the record is uncontroverted on this is any time there is say a case of water that weighs thirty six pounds or a bag of dog food or anything that weighs more than ten pounds in a cart that exceeds a thirty pound push pull restriction that mr magic of a chad so every time he had to help someone to a car he couldn't do that and he had there's testimony in the record that for the two years he was on those restrictions he was not doing that central pictures is my last one i think just just to follow up on the what kerry says that an essential function can be as you put it implicitly defined i mean all the cases i've read it's a fact issue in the courts have taken pains to detail each and every essential function how what cases you can implicitly define so essential functions and the such a function there is a multi factor was wrong you said it was implicit in the judge's order that you'd have to live twenty five pounds and so on but i just haven't seen a case that lets you define an essential function implicitly like that i was wondering if you know of one i cannot think of one where a court left it and said there are cases that talk about the that they it is not something that can be derived solely from a job description you do have to look at the evidence in the record so we contend that on this record it's permissible to infer that in fact i think that's the only finding you can infer based on the evidence that was presented during the trial because if you're talking about not being able to lift twenty five pounds or push a cart with this kind of job what that means is that as mr mack of a self admitted if a customer asked for a bag of dog food he could help lift it if a customer needed help to his car he couldn't do it if there was a go back which means you go and you take a cart full of items you have to take him back to keep the front area clean he couldn't do that if a customer needed something as he said the job was to as he said drop everything and go get the thing for the customer if it's a box of baby wipes if it's really most things in costco he won't be able to do it and so again focusing on the one thing that indisputably he could not do and did not do the entire time he was there car assistance the cases are uniform the inability to do even just one essential function makes a person not qualified for the job but they're going to come back and say and you have a bottle but they're going to come back and say look for two years he did this job and there were no problems with it wasn't in the district certainly made a big deal about this two years thing what what should we do i mean two years that's at least five hundred days of work well this wasn't a problem well and i think the the record on this is clear that as cost goes warehouse manager testified they excuse essential functions when a person is on temporary restrictions mr garcia explained that that's their policy because the workers getting back on their feet they're having time to heal and so routinely they will excuse essential functions and once he was permanent stationary that was the trigger for the accommodation discussion to happen and so to look at those two years and say well he was sort of chugging along fine we don't actually know how much of the work he was doing by his own admission he had to ask for help whenever and the neely case for example that we cited in our briefing the officer there was on mike duty for six years and in that case the court said well we're not going to punish an employer for over accommodating and we're not going to look at that and say well because you did that now you're forever bound to do something that's above and beyond what the law requires there's other cases that we cite in our brief for the same proposition watkins is a ninth circuit case where a truck driver was temporarily excused from heavy lifting and then plaintiff said well you've allowed me to do it for that long what's another you know several months and the court said that you're not required to do that once a position your condition is permanent so i think the two years additional court you're right your honor they did rely on that and i think they over relied on it because there was no dispute that during that time as i said he wasn't doing certain functions like the carson and the court i think made a legal air by excusing that dark versus curry samper these are night circuit cases as well as nearly say you cannot require an employer to excuse him except central function as a matter of law that's an error so this court doesn't have to overturn a single finding s missing in the record well your honor we when we read the initial order it was not clear to us whether the court was simply quoting the essential functions from the job description or actually finding them to be essential because the way the job description is written it says job dut slash essential functions so we have an abundance of caution filed a rule fifty two b motion the court in its order said i'm finding these things there's no there's no lack of clarity here all of these things are essential but for  their opposition to the rule fifty three c's miral fifty two b motion they agreed they agreed that the order encompasses all of the job duties that are listed in the job assessment notes so that's why we brought the motion and i think a lot of time talking about undue hardship and how cosco didn't analyze whether it would have been more if the impact on efficiency or whether it should have hired somebody else to help mr matt give it but there's two major problems with that analysis one cosco was not asserting an undue hardship defense in this case it explicitly disclaimed that it was doing that and to in the court's order because it thought that there was an art under hardship analysis to be had it put the burden on cosco and it faulted cosco for not proving that providing the accommodation would not have been an undue hardship and so it is century reversed the burden of proof and considered factors that are come not relevant to the reasonable accommodation analysis and we contend that at a minimum that requires remount for the district court to conduct a proper analysis that doesn't shift the burden to costco to prove a defense that i hadn't asserted in the first place so unless the court has further but i want to start is there was no elimination of an essential function mr matvichuk could lift he could push he could pull the only thing that was in question here w that he could not do so he could not lift over twenty five pounds and he could not push more than thirty pounds but that did not eliminate an essential function from his position he could still do all of the things that are listed in the job description and in the job analysis he just had certain restrictions and when he needed something that was more than twenty five pounds or to push something that was more than thirty pounds he asked another team member for help and he was accommodated that went on for two years first with one restriction and then with another added and then he completed the tasks of his job never eliminating an essential function and what he needed to show here he needed to show that he could perform the essential functions of his position with reasonable accommodation and once he showed a reasonable accommodation then the burden which shifts to cosco with the defendant to prove undue hardship so cosco as it says did not assert an affirmative defense or a defense of undue hardship so once but not necessarily lifting twenty five pounds or pushing twenty five pounds and to the extent that they were he reasonably accommodated by asking for assistance from a team member word of the district or in your view address the weight limits did i i couldn't see it i may have missed it but where it where did the judge address the weight limit issue either as an essential function or rejecting it as an essential form i don't think you missed it i think what the district court found was these these tasks are essential functions and the district court went through the job description and you know from greeting customers to lifting to helping out  if something needed to go back in the store but i don't think the district court specifically addressed the weight limits as part of the essential function analysis what i just jump in i little confused because the reasonable accommodation is based on the definition of essential function and what i thought i heard you saying was they could reasonably accommodate your client if he had to live something more than twenty five pounds or push more than thirty has restrictions from his doctor but then i also hear you saying that wasn't really found to be an essential functions i'm not sure how reasonable accommodation point works well i think you can look at it two ways you can look at it in that lifting pushing pulling were essential functions and whether it was ten pounds or twenty five pounds the district court didn't necessarily address that but if you want to imply into his findings that lifting twenty five pounds and pushing thirty pounds worth central functions then mr mccabe it's reasonably was accommodated by using the team approach from cosco to ask for assistance with those items and i think it wasn't every item as sort of was argued by opposing counsel it was if something was too heavy for him and what is clear from the record cosco did use a team approach for lifting pushing things that were heavy its own policy manual in places the team approach saying that if something is too heavy or big or awkward then the employee should get help or find a way to split the load it found that if you are it's manual also says if you can't see around a load it's too big to carry get help and it the team approach was discussed throughout the testimony it also was something that cosco itself said was reasonable it said assistance at the front register is reasonable it said that assistance in the electronics department is reasonable and so for cosco to argue now on appeal that using a team approach away from the register or for pushing a cart to the parking lot is not reasonable as a matter of law it makes no sense because we know that it was reasonable under certain circumstances and the district court was the fact finder here so what i think the district court did was to look at the position as a whole the factor surrounding mr mack offish the fact that he had worked with restrictions self accommodating self monitoring for two years that there were no complaints about his performance that there were no complaints about his line moving slow or the operations of the store and the district court as it should considering all those factors made a factual determination that what mr matvichuk was doing to self monitor and asked for help when necessary was a reasonable a once you make that reasonable accommodation finding as a matter of fact then he becomes a qualified individual and that was really the only hauke here that was a point of contention between the parties so if you go back and you look what what must mr matt kivett show he needed to show that there was a an accommodation that was reasonable on its face and he did that he showed that asking for assistance when something lifting or pushing is going to exceed my weight restriction is a reasonable accommodation and that was based on his course of employment the fine and managers working as a team sometimes fifteen of them at a time and so once he passed that hurdle he's a qualified individual and we're looking at a factual finding made by the district court not a legal  i just like to kind out a couple of other things there was a comment about transitional duty mr mack of it was not on or in a transitional duty role he was never given a transitional duty letter his performance was not or his job position was not morphed or changed into something else and even costco's policy manual says that a traditional duty position is to last no more than six weeks and we know that that's not what happened here we know that mr matt kibbe it self monitored and accommodated for two years so this isn't a question of transitional duty or a light position there was nothing like that created for mr mack offish he performed the essential functions of his job with assistance when necessary so there's no new position there's no transfer of an essential function and the cases are clear that you can have an aide or someone to help with an essential function as long as it's not transferring the function and we know that mr  did push he just asked for help when it exceeded his restrictions and as for the undue hardship analysis as i said cosco did not assert that as an affirmative defense but if you look at the regulation that governs here and i alluded to this earlier mr mack of each had an affirmative or cosco excuse me had an affirmative duty to make reasonable accommodation for mr mcavoy an employee with a disability unless the employer can demonstrate that the accommodation is an undue hardship so here mr mock of it showed there was a reasonable accommodation for him using that team approach and cosco said we're not going to assert a undue hardship defense but it had a duty once the district court found the accommodation was was reasonable to allow that accommodation and costco's attempting to sort of avoid this but you know some of the factors that go to what is reasonable could also go to what is an undue hardship such  mcavoy performed how that front end assistants work together and there was never an analysis done by cosco of whether this would be reasonable it basically just said it's over twenty five pounds or more than thirty pounds that's it and that's not what what the analysis there's no restriction i guess is what i'm saying on the factors that can go into what is reasonable you look at the job you look at how people work together it's a case by case facts pacific inquiry and the district court resolved the credibility determinations and the factual disputes in mr m favor and it should not be disturbed on appeal unless the court has any questions mr that vigil continued to perform all of the duties of the position during the two years that he was on temporary restrictions but when he was asked about this a trial quote you didn't help them load their items into their vehicles while were under restrictions did you know that said twelve fifty eight of the record there is nothing in the record that shows mr vat vich was helping people to their cars during that time that is indisputable in essential function he wasn't performing it so under this court's dark cases samper case as i alluded to the judgment has to be reversed on that basis alone without this court even getting into team lifting the weights of other items this is a function that he was not performing  second point is with respect to the team lifting finding mr garcia did testifying cosco would have accommodated mr mccabe at the front end that's in the job assessment notes but every time he walks away every time yes to go get another item the accommodation that someone else has to help him amounts to essentially a job sharing and the cases are very clear in our brief that job sharing is not a reasonable accommodation and when lifting doesn't even address the pushing team lifting is not to find an assistant standing side by side pushing the same cart i mean that would make it so that you'd have to have two front end assistants performing the job of one front and assistant and that we submit is not reasonable as a matter of law and then one final point again on the undue hardship analysis again the court's order says cosco did not prove certain items cosco did not have to prove anything in this case his burden to prove that the accommodation was reasonable and so i think that shifting of the burden of proof to cosco is itself an error that requires reversal and the very last point i would make   offering him that position we contend that that is a comparable position same pay grade same warehouse similar job duties except for the heavy lifting and so we contend that that should have cut off the that they were assessed at all and if your honor finds if the panel finds that the damages should be mitigated or that there is a partial reverse so then we think that the really the attorney's fees would need to be reassessed because one of the things you look at is the