spiritual adviser and shave his beard just enough to safely and securely use that and that the five mask and the other respiratory type devices however on the st day that one patient he was told that he had to shave the entire be aired in violation of received the handbook and he went along in taishan that he went and spoke he sent an e mail discussing the fact that he had grabbed the handle and he realized that they needed you need to not have mount i think we're all pretty familiar with that fact in the background i'd like to direct your attention to the callee claim would you agree with me that the standard there is that your client my ship that just discrimination was bought for a reason for his termination ok retaliation ok so that being the case you know i got i don't i'm not sure your client gets there it seems to me and you can and i want to tell you that so to give you an opportunity to tell me what i'm missing but it seems to me that the record is pretty clear that i am are regularly fired people who they found had lied on their applications that that's what happened in this  case and i'm aware that your client has said that he didn't lie and occasion but the fact of the matter is that when he was given the opportunity to explain why he answered no to the question about having been fired previously  he explained he explained why he answered no he didn't say i didn't answer now why wasn't that enough of the reasons are to legitimately believed if he had lied on the application employer and that although you did write yes in his hand written application that that somehow was transcribed as no and the all application had been for that in this case he also explained the same thing to them with every breath before you put out administrative leave provided to him where he needs to seek the resolution now in regard to where he actually explained to the company which is why you can't have an honest held belief is because it is in a deposition where you claim that he spoke to miss more about the believe that he conveyed to these mobile or to anyone if the company that he had in fact answered yes on the application is that not he might he may be may have stated this confusion but there is at the at the in the deposition that sounds page sixty nine the question was asked prior to your  that's correct but it cannot be substantially adverse and it cannot undermine or mobility and regard to adverse employment action out this is one of the kind of the one of the immaterial issues in this case is whether or not to ambulance services ank so i'll refer to as a m r there's two main points that i'll be making during this argument st of all am are satisfied its title seven obligation to provide a religious accommodation to mr bailey when it offered him the option of working as a non bailey that he could have an accommodation specifically on that st day of orientation outsell site is rodman's about i will tell you that this is where i have an issue with your case and maybe you can address it for me and it is only reasonable accommodation clean the problem for me is the abercrombie case which basically says that when it comes to religious practices that we have to we have to do that we have to treat them b otherwise and and the problem here is that it seems like there is possibly or there may be an issue of material fact as to whether abercrombie seems to me that you have to give the reasonable accommodation unless it would cause an under hardship and here the problem is i don't see anything in the record that shows that it would be an actual safety concerns and see nobody asked dekalb county whether there was whether they would allow an exception so i guess my st question for you is whether you agree that abercrombie requires the accommodation and last there would be and i'm doing hardship on the company and the nd question is if you do agree then why does your client have a problem client rules in this case but i go a staff except that the problem is they never ask the client so how do we get there how do we get to the point it would be ninety hardship when they never even now we don't have anything on the record that says the client said no there was no exception that'll make well actually the record does show that miss moore the h r supervisor she spoke with thomas moore who's a field operation that might be his wrong title but mr thomas moore who was the operations manager i believe and he had a lot of dealings with the client specifically and she went to him to see if there could be an exception and he was adamant that they at that time there was no exceptions allowed to this policy but again you didn't ask he did not ask the county there's nothing in the record that shows that he asked the counties and that right that's correct but at the time he said he seemed very adamant to understand that policy and accommodation obligation that is that that is my understanding as well and in this case one of the issues is that mr bailey has essentially sort of that the only possible reason why accommodation is the one that he and he and the pay scale for both emergency and nonemergency were the same yes they receive the same pay they receive the same benefits they even when you apply for the position under the same job title and  description is the thing for both yes that is absolutely correct so and in fact another way that you can see how some of the jobs are is that you know they didn't even have to go to h r to decide to reassign him to this they just said ok well we'll just assign you these types of routes they attend the same orientation for this position i mean these positions really are quite alike and and  certainly alike enough to satisfy the d standards in place and the th circuit for you know you would agree then just to be just to be clear here counsel you would agree that  think i don't think it rises or falls on that because i think even if we accept mr bailey's complaints about the physician as true it's still not enough to show that it wouldn't satisfy that standard so i think that's not the question i'm asking i'm sorry counsel but i'm saying assume and we may not conclude that there is a material dispute a fact on this you know we haven't discussed the case so i don't know accommodation then my question for you is why is there not a problem then und well i i'm not sure that you have to i think the reasonable accommodation determination is one that is a matter of law anyway but if you if you were to find that there's still not a problem under abercrombie because  he was not denied a job he was he was just given a different assignment and you know having to go against their client's requirements  believe so too i just want to point out one other aspect of this which is that a lot of mr bailey's complaints about it have some major evidentiary deficiencies for example he doesn't have the personal knowledge to support some of his assessments about the position he never worked in the position he testified that he'd only rarely done non emergency work and in fact had done so little non emergency work that he was unable to answer questions about the type of situations that might come up  and then a lot of cases his his testimony was simply based on his subjective perceptions about why he believed that position was what is beneath him essentially and the case was pretty clear ok well i'll move on to my next point which is that there's no genuine dispute the material fact that would prevent summary judgment in a mars favor on mr bailey terminations claim mr bailey here retains the ultimate burden of persuading the court that he was the victim of retaliation and to succeed you have to show the m r s reasons for terminating him were false and that retaliation was the real reason he was terminated mr baillie sale to do either in this case notably mr bailey cannot decision have to focus on what am our new at the time of the decision m r thoroughly and consistently explained the legitimate nondiscriminatory reason why it terminated mr bailey's employment m r takes falsified cation of company documents extremely seriously as a company involved in health care they have to build the government and medicare programs and so they view accurate documentation and honesty as being  so sorry to interrupt again and i want to bring you back for a moment to the st issue that the reasonable accommodation issue let me ask you what is your response to  a material issue of fact a dispute on the trail issue a fact that mr beilin assert that the actual position  couey is is different from the position of emergency in that he knows this from having trained you know whatever training he did i guess during the period but that the emergency si reasonable accommodation let me put it that way well i think as i point out mr bailey did not actually did not actually it was not able actually to answer questions about what types of emergency situations arise in the non emergency position and there was a great deal of testimony that you know those transfers are not just quite as easy as they sound they involve two minutes remaining moving extremely sick patients patients who have are on ventilators patien contentions about what is involved in the non emergency transport versus emergency transport that right that is one piece of it and also another piece is that they are the same job description they're the same job title  they you know the courts the case was pretty clear that a transfer to a job of a different nature can still be is still reasonable religious accommodation so ok i'm sorry let me ask you this let's assume just for purposes of this discussion that we could rely on what he says about the differences between the two positions give me your best arguments for why it doesn't matter it doesn't matter because the positions are still close enough in terms that there's no this is not even a case where there's an adverse impact of him transferring he is still going to see the same pay the same benefits the same job title he's going to the job is that the paramedics on both sides attend orientation together they have the same job description and so even if there is a difference in their day to day duties that is not enough to take this out of the realm of a reasonable accommodation even if his assertions requirement that we treat religion better grafting onto the reasonable accommodation acquirement in other words does it have any effect on how you handle lies whether something is a reasonable accommodation or is it or do we add all eyes whether something is reasonable accommodation and then and all you know outside of the scope of whether you know what i'm saying i believe so i don't think it changes the and else i think you know by providing a it's you know restate the title seven requirement of you know ensuring that these accommodations are provided for religious practices which is in itself treating someone better so i guess so your position would be that that even if it doesn't even if it doesn't cause an undergirding to the employer the employer does not have to provide a certain kind of accommodation that is requested by the employee if it's religious correct the employer does not have to acquire the exact accommodation that the employee prefers even if it doesn't impose any onto burden whatsoever another it's no skin off their back they could just as easily do it but they just want to for whatever reason maybe they don't even like the religious practice but they don't have to do it is long as the accommodation that they provide is one that would otherwise be reasonable outside of the religious context i think that's fundamentally true that they wouldn't have to required it even if there was one to burn but i think that would affect the reasonableness analysis in that case whereas here you know there's no question that they have a reason for not giving him  specific accommodation he wanted and they still give him except that the reason here is that the county had with requirements but they never bothered to ask about it so that's the problem for me here i think you are agreeing and maybe i misunderstood that there comes a point because of africa these unique kind of take on this was that religion must be treated that of that if there's no one to burden that might affect the or gets reversed i mean i don't know if you want to address that any further that's what i'm sort of wrestling with i my position is that abercrombie doesn't change the order of analysis and terms of looking at the reasonable accommodation st and then on the hardship and that can be this burden your position is that you only get to under hardship if you cannot provide the reasonable accommodation correct and the reasonable accommodation is an accommodation that does not necessarily have to be the same exact one that the employee wants but it's something that is reasonable and accommodation for purposes of the religious well i believe my time has expired so thank you very much part bank account for sorkin you have three minutes for bottom like your hon  the result comparable position that does come from our which is a lower court opinion side of the th circuit so i do apologize that that's not from the circus language but it does discuss the reasonable accommodation issue and in the original brief and then and regard to the actual record where mr bailey was explicit about the application being fraudulent if you look at his depositions on pages thirty four dollars thirty five cents he was asked if there's anything inaccurate in a document and he says that even if there was a difference in in pay or in benefits the accommodation any accommodation is considered a reasonable accommodation so we're not i i'm if there was even a difference in whether emergency or nonemergency so the question is how is this not a question just of law for the for the trial court to make it's a terminations when it's a reasonable  accurate that this was just granny coding that this is not exciting it is you know it's basically going to be boring as opposed to being on the emergency side let's assume that all is accurate how is it how is that not as a matter of law accommodation is sufficient and that it could impact even the terms and benefits of the job in the indian river case you had where the milk route changed the terms of the employment and they're going to make less money and that was