is clearer than the standard for a jury trials well with respect to the damages portion your honor on the back pay where the trial court we believe correctly concluded that the plaintiff unreasonably stopped mitigating and stop our brief your honour's with respect to pain madison hunter and the cases that we urge this court to look at from the other search circuits specifically greenway we are arguing and we submit that a plaintiff who who is not looking affirmative defense is just show that there were jobs out there that happens all the time in a lot of cases in social security faces people go out and find a vocational expert to say there are so many jobs for people with this kind of qualifications i don't see why that's an unusual burden well your honor i don't think it's an unusual burden however as the case law makes clear that thorough appellate review of back pay is always that the plaintiff might have found comparable work by exercising reasonable diligence and that's just a few months ago june twenty eighth well and in listening to that argument and reading that trying to tell you you know in a lot of cases it's the burden of one of the sides that happens to be the burden of the social security administration and step five to show that there are jobs in the national economy or the regional economy somebody can perform and there's a whole qadri of people who hold themselves out as expert witnesses on that point people who run employment agencies you know who are familiar with the economy of a particular area so it's it's evidence that's fine dibble even if it weren't i suppose you know we didn't just say that in this circuit that's one of the things you have to show so unless you're asking us to overrule an extremely recent well the individual circumstances of each point if equity is it is is browned it upon a flexible application of law and a flexible look at the facts and if it here at the end it issues mechanical concepts that this requirement to show that other work existed is irrelevant for purposes of showing mitigation because what i mean that's exactly what we're talking about i i don't understand that i mean you certainly need to tailor to the case in the sense that you want to say per you know a hypothetical person with comparable qualifications experience age would ever factors you want to throw in there  you're not going to say you know that mr straw the ph should that become a lawyer because he doesn't have a legal license and so it doesn't matter that you know water worker maybe maybe those kinds of qualifications would have matched up against other jobs  area we don't have any evidence that this is this is in the section of the opinion about mitigation of damages so i don't understand why that's not finding well we think judge that if you look at some of the cases cited in our brief specifically payne and hunter that that's the circuit in those cases specifically criticize a plaintiff or not seen the damage and we think of other employment opportunities so we think that and we  this court to take a look at those decisions that that when viewed through the prism of equity and reasonableness that an additional requirement a burden upon a defendant to show that other work existed isn't necessarily well taken and we recognize that death does conflict with some of the precedent we're quite keen to we're urging this court to take a fresh look at this case and at this issue especially when we think about public policy and we think about the nature of job searches now with with the gurney and that's that's made mention of by plaintiff in the trial court that involved case where there were high school students that didn't have to do a job search and and that's where the mitigation argument for plaintiff and trial court is grounded this case is completely different we can see that for two and a half years from september two thousand and ten to january one two thousand and thirteen that the plaintiff was indeed mitigated the plaintiff through his own actions by getting temporary work showed that other work was available so too to now impose an inequitable burden we think and also undercut the city's defense that we still don't concede that the plaintiff was qualified to perform essential functions of his important job that to show that other work existed still undercuts artefacts and it did and it's it's a mechanical interpretation of the law which runs against some of the precedent that says equity is a flexible concept turning to the essential functions argument we think that undue noble review that there is enough evidence substantial evidence in the record that shows that the city proved its case that number one they have to show that they're that it was a mistake to send this to the it's not impossible happens sometimes but there's a lot of evidence in this record that a jury could have credited and one of the things that concerns me let's say about the time he's the show he mixes up green bay road and gross point road i don't know what the denominator is really and you know he goes out on a lot of jobs over that month so maybe that's a nomin hundred trips and if he only maybe when the computer is malfunctioning mixes it up once that doesn't strike me as a lot if you don't like going out and ten trips you know he's getting it wrong one in ten times that would be different  the same thing is true of his taking advantage of the office to sort out the computer problems he does go back several times but the city parent lee had encouraged him to do that  we've cited to the lever's the same case in our brief but it's also what a reasonable jury can reasonably come we don't that's really i think you're sliding over into the motion for a new trial where the where the trial court judge is entitle to step back take a look and see whether the verdict is supported by substantial evidence but you course you lost on that too and that's a very deferential standard you you're almost better off with fifty p well your honor i think that if you look at the evidence there are enough points in the continuum and the issue with the driving it's uncontroverted that it's a necessary special quire meant that has his commercial driver's license and somebody seems i'm glad he wasn't texting while driving you're doing all the other awful things that people do while they drive but again i don't know how that fits in with with the rest of the city experience with its workers well we think that it's uncontroverted that safety is a critical part of this job but how on the other people who were said the city of have it's a big city in this area it has more departments in just the water department it probably does have people  e so what happens to the rest of them well they don't have only two water workers in other departments there are only two water workers who can do this job if you question i'm asking i'm saying what do you do for somebody who has no counsel and kerio does which was cited to you in our brief good authority cited one hundred ninety seven times in the northern district the seventh circuit says that a court should not sit as a super h r department and question a personnel decision even if they think it might be inaccurate and with due respect to the trial court we think that the trial court got it wrong on bad and it was cherry picking instances or more conflating other issues in falling back and saying there just wasn't enough evidence here is a question for the jury in keeping with what we have recommended i'm glad to say was you know was he let go because of his  he had been if everything else had been the same but he wasn't disabled what do you thin released and that's to it so again i think you're asking for a more searching standard of review than i think applie here well your honor i think that with respect to the issue of whether he could do the job or not there is enough there that shows that the city proved its case so if the jury could come out your way i wouldn't have thought there was anything to that appeal either but the jury didn't come out your way and we respectfully submit that they did not look at the evidence the way they should have and under the what was wrong and instruction or was this just  can work the computer once he gets his sign and information and he can use a little post it know to help him remember what that is i mean there's a lot of evidence that he's performing this job just fine why couldn't the jury rely on that well we think that given the very demanding and and fast paced nature of this job where the plaintiff is driving a two and a half ton truck and the safety is the most critical  least he was doing the work he was assigned he he's not well we know about including this record well on this record judge we respectfully disagree and that is his supervisors were telling him counseling him why are you coming back to the plan that is the computer stuff which he and the jury could have said he'd been encouraged to do that while other employees who had not taken a disability leave were training on these new apps that you put on to the computers and these new computers he was gone for that period well we think that the the new app consideration was was not accurately considered by the jury in vats there was training given to mr striker p t he was given a testimony said well mr bartlett's indicated that for instance when he goes out into the field and goes on to the different road that he wasn't able to use those apps he didn't know where he was and his computer function was impaired because he wasn't using it out in the field the weight should  to perform his job that testimony we think was unreasonably disregarded by the jury and then viewed in the totality of all the other testimony by ms buying or by mr stone back and also let's not forget the doctor i mean the doctor did the best he could given the fact that the interactive process was being willfully frustrated by them i'm not sure that that's true that doctors testimony look to me life very careful he testifies making it clear the assumptions he's please the court i'm going to be very brief i'm a bit of a lawyer for forty eight years i've never known this court to overrule that decision two months ago so let me just address something that occurred to me over the weekend about this argument that the other circuits supposedly got it right where they say if the employer proves prong one right then he's excuse from proving pro that would help that they are the employ her must prove in order to prove a failure to mitigate one that the employee he was not actively looking for reasonably don't have to prove mr employer number two in the event that you did prove number one but watch what he had what is the assumption on which the reasonably comparable work is being searched for and that the assumption that the employee was fully capable of doing that work were the assumption that there was a disability well if if question is because it seems implausible that if such work is available and your client is not disabled as he claims that he wouldn't be able to get it so one possible understanding is that your report is that your client couldn't find the work because he wasn't able to do it the other possible understanding was that he couldn't find the work because there were no such comparable jobs and then we need something to disambiguate which is which  understanding of brown i take it i think it's my understanding too all the employer would have to show is that there is comparable work for people who can do it all sort of look yes to me yes yes yes ok correct but i mean the the plaintiff here is disabled but he's not so disabled that he can't do a job that he can't work ok it's a typo i thought the point was maybe did  disability affects his capability of learning new things but for a job such as the water job that he had in evanston he he's got a solid base with perhaps a reasonable accommodations made maybe yes maybe no to do work with which he's reasonably familiar and i was i was getting some of that at the break maybe that's too detailed it perhaps is under the test in the second circuit they don't have to prove the second factor if they prove the first day or so the second factor is eliminated much simpler to use real words prove the availability of work if you keep saying but second fact ok i'm sorry you're you're hoping ok codewords come across real words help me if the employer according to the test in the second and other circuits if the employer proves that the employee was not actively looking for work then the employer does not care to prove that recently comparable work was available ok now let's look at it the other way suppose the employer does prove or fails to prove i said it wrong suppose the employer fails to prove that the employee was not actively looking for work just the opposite well then there's no point in looking up the second factor that is the factor of whether a reasonably comparable work was available because you have to prove both it's an end test not a north test so the second factor the availability of reasonably comparable work in the second circuit and the other circuits is for ever totally and completely eliminated it doesn't even exist as a standard for mitigation of damages that's why the test in the second circuit and the other circuits makes no sense it's totally inconsistent obviously with brown v and it doesn't make any sense because it says there are two tests but there is no one ever cation ever when you will look at the second test so let me ask you a little bit about the merits there are a couple of things that the city has put together whether it's careless driving through this intersection although it's high to him you know we don't like it when people are kind of down here looking for their clipboard instead of focusing on the road even if it is a green light for the moment and there are no pedestrians and no bike so it seems to me an employer could have a concern about somebody who does something like that and you have the issue about getting befuddled about where he is and so on what why in the aggregate are those not enough to justify an employer saying you're just not up to this job we're only two people on the job we have to have full confidence it was it was a vigorous leak could test a trial both sides put on their evidence the jury heard all that evidence and the jury decided there was conflicting evidence on both sides that's why the case went to trial but s problems but what about his driving skills to take that what evidence was there i'm sorry what evidence was there on his record of driving he agrees that he had gotten a new commercial driver's license right after the after the accident right and he drove successfully and no accidents during that period of time from june to september when he was discharged and he did he did  of the things he didn't do perfectly we agree that was for the jury to resolve was there evidence about the record of the other worker who apparently had the same job i mean how does his record stack up i guess i'm trying to figure letter did not say that the man you know i have to have somebody right along as an accommodation and it was one suggestion he did say yes no motor or sensory deficits therefore you could drive a motor vehicle is what matters the city concluded and its use its best judgment on the information it had available that the plaintiff could not do the job safely turning to the issue of backpay again if the test is a plaintiff can can get comparable employment if you could do the job we of course do not concede that the plaintiff was capable of doing the job and the appropriate exception as enunciated in greenway the other cases and i think some of the seven circuit that we cases cited in our brief which criticised the plaintiff for stopping work should fly the two and a half years of back pay the front page claim was denied on that basis we submit that the two and a half years where he was not working that fact a claim should be dismissed as well we