this case requires the court to examine the final stages of an employer employee relationship and to look at two specific processes that went awry first what's to be done about m his permanent lifting restriction and second why is mr guardian's paycheck not reflecting all of the wages that he earned the district court decided this case on summary judgment which this kit court review and we're asking this court to reverse the district courts grant a summary judgment and to remand the case for trial the facts very briefly are this mr garcia was a maintenance mechanic at j b s which is a it excellent ok well i'm asking this court for reversal for a couple of reasons first the employer withheld wages for mr gardere and second mr gardere could perform his job as a maintenance themselves but also direct the court to join appendix page three sixty where mr gardenia set out a declaration that contains all of the information that's conveyed in the handwritten notes three sixty three standard of review your honor but if you go through the math of of some of these pay stubs which i'm happy to do you can see that there definitely were problems with the the findings of fact for one judge had considered the claim to be something like it fourteen dollar claim and that's simply incorrect if you look at the appendix three sixty it goes through far more than that in terms of time that mr cardia had worked on and h earned wages but was not compensated but we can go through some of the information here just to be absolutely certain about i think it was around four hundred dollars that he was not fully compensated for that we're going through it we're going to we're going to go through an appeal and then have a trial for four hours that may well be but what's more important is what's important is not the dollar amount that play but the fact that the we're here for a federal statutory the court denied summary judgment on all of the claims that were in play that includes eighty eight claims starting with the four hundred dollar cla know that that's a very bad bad side well actually we directed him there i think because paul asked a question and i followed up where he was going you want to start with that oh diddy story well it is important your honor because i will  and there's an amount of twenty three dollars twenty four cents that mr card is compensated no explanation explanation as to the hour's worth of the rate there but if you do the math and divide out this figure of twenty three dollars twenty four  by point seven five the amount mr davis says you sure did you get a figure of three dollars ninety eight cents which is his overtime rate so based on that record alone and this line entry response that they eventually settled up over a broad enough time period is also not satisfactory i would code ninety one eight point three says the employer must pay all wages when do last any lawful deduction installments on regular pay days which are consistent intervals from each other and which are designated in advance so shorting you in week one and pay more on week two is a violation and that appears in other points in the record it's it's crucial to mr cardell because you can't alter the employer employment relationship in that way if he does the work he needs to get paid what's what's the i was framed court case saying there's a private right of action for for making and the next week there is a private right of action with attorney's fees that's in the statutes of i would code ninety one and i'm not sure if you have no case already in other words that was the question i i understand that your honor i'm not sure you answer my case question with a statute i'm not sure there is a case that as directly identifies what you're asking about but the cause of action is there so at the very least we see there's fact issues on this issue on the disability claims mr gard data has made his prima fascia showing on disability claims to preclude summary judgment the district court correctly gave us the standard you're familiar with  y which case is that your own basically versus you i'm sorry hon i'm not familiar with that case well then you're not arguing probably by the controlling law is other than how your i understand your own so if we look at the record here that was developed before judge jarvey we see there's really two core fighting issues there are about two proposed accommodations one whether the use of chain hoists and assistive devices that are already possessed by the employer are reasonable accommodation and the second is about team lifting for heavy jobs no i'd direct the court's attention to plaintiff's expert report that's joint appendix for fifty one to fifty three where an expert conducted an onsite job analysis and concluded that the use of lifting devices in assistive devices would be a reasonable accommodation now clearly the defense disagrees with those contentions but if you focus on just where the conflict ends it's really having to do with whether or not these lifting obvious sometimes we well the brackets sometimes we use concrete anchors these are all things that have been worked around in the past the same is true for team lifting which mr de is asking  for simply as a continuation of the practice that he observed in particular putin when he was employed by g b s so what you really see developing is a fact issue on whether or not these accommodations proposed by mr berg data were reasonable and the district court resolved that fact issue when really it ought to have been looking for whether there is a triable issue and we submit that there was i'll reserve the rest of my time for  if you look at the record in this case though you are correct at magnusson that the district court did strike handwritten notes that were part of his wages that he offered in evidence and mr gardy has making arguments based on those handwritten notes so i think that is improper and i do believe that should not be considered as part of this case as far as the argument goes the fact of the matter is the only evidence relating to wage claim is the testimony of the h r manager  in the appendix at page fifty eight where he said all wages and all overtime have been paid for all hours worked by mr guardian two thousand and fourteen mr fully admits that he was compensated for his wages if you look at the  in his deposition on the appendix page three sixty he says he complained about the unpaid wages to human resources and also to the union every day until it was fixed if i would would have fought for it i would not have been paid and then he goes on to itemize some things in his in his statement on that page and he talks about missing wages and things like that and goes on to say the following hours were missing but were later back filled so by his own testimony he's been paid in full for these and there's no evidence by anybody in the record that says any amount is due to him in this case so there's no probative evidence on his way to claim and that claim fails and the district court was correct and finding that he didn't meet his burden what about the notion that making it up later still violates the code i'm not aware of anything that says that i mean he was paid it was a quid raised in the district court it was not it was not raised in the district court and i don't think there's anything wrong with an employer correcting an error in connection with compensation and paying them after the fact as long as the employee got paid so just what's missing is any evidence of anything that's owed in this case by an affidavit or any testimony moving on to the disability issue  the real issue in this case as to whether or not mr guardian could be provided to an accommodation this is a case where you have an employee asking an employer to reallocate essential job functions and that essential job function in this case is lifting and what he's basically asking for is a helper he's asking for other maintenance mechanics to come in and when he has to do the heavy lifting and help him do that and that is not required in the circuit has said that multiple times in lifting cases that that is not a reasonable accommodation working as a mechanic ajay vs swift for company is a very physically intensive job these these guys have to work at all areas and locations in the plant they have to perform  work on heavy equipment they have to work with heavy parts motors conveyors they have to use heavy tools and the lifting device itself that mr guard is asking to use weighs forty pounds and his restriction is thirty five so he can't even lift the lifting device that he wants to use in this case on top of anything the job description is the best evidence as to what the job requires and the job description in this case which is in the joint appended six sixty says you got to be able to fifty pounds to three to four times an hour are you familiar with fatal i've read that case judge i feel that with direct on this point with the lifting restriction or with the week that we did that the courts defer to the employers definition of the essential functions and i think that's consistent with also the minahan and drew pinsky to he says that we cited but that is correct and when you defer to the employer in this case you look at the job description it does say fifty or more pounds is required three to four times an hour seventy five pounds or more one to two times an hour in this job and mr guardian disputes that he says look you don't have to lift that much in an hour but then he says i know you have to do that every day so he acknowledges you know over fifty pounds three to four times a day over seventy five pounds one to two times a day this is an essential job function in this case doesn't essentially his arguing the argument when you get boil it right down is that if you look at phailin we're going to say that you have to lift the fifty pounds we look at we to that determination on their job description and when you look at the holding which said that if in fact by deferring to their job description in to accommodate it you've made someone unable to perform the essential job function that he can't perform the essential job function isn't that really what the plaintiff is argued here is that they need to have somebody follow them around in order to lift the fifty pounds or to set up the ladders or whatever else needs to be done to accommodate his mechanics job and so if you're going to keep him on this mechanics job the reasonable accommodation being addict advocated for is he needs a mechanic's helper and there is no law anywhere that requires anyone to hire another person to assist someone to assist to perform their concluded that you don't have to provide a helper and if lifting is an essential function you know that person has to perform and there's a seventh circuit case this miller case they cite with which dealt with the bridge crew and they worked as a team of they already had a team working on that right and so there was already somebody there i mean so it's not that you had to hire a helper to be there to help perform the functions right there were other people on site and could assist right and that's the difference in this difference in this case mechanics have to be able to work independently there could be three mechanics working and there could be three jobs across the facility that have to be worked on right away and they're not always people available to do any lifting to help anybody in lifting and you know there's never been any record different than the miller case of other people being excused from performing lifting or as an essential function of the job which was what was in that case too but no that's absolutely right in the sense that if you're if your job requires you to do the lifting and you do not have to provide an assistant or a helper in connection with that as an accommodation but you know in this case my client basically when mr gardere became subject to his restrictions and he reach maximum medical improvement these were permanent restrictions and at that point there was an evaluation done of all these things lifting devices carts and they concluded that they could not accommodate them in this work environment plaintiff does have an expert that came in and said why can't he use all these things to to do his job and what he didn't account for is the actual work environment you can't use lifting devices in many areas of the plant where motors are located there's nothing to attach it to to to use a lifting device you have to take a chain and and then you got attach it to the ceiling or something above it and then crank the chain to lift it out many of these items don't have anything above all to do that sometimes the motors you have to remove or under machinery other times you've got to use a ladder which weighs over forty pounds to get to the item and you can't even lift the ladder to do that so there are so many things about this that makes not only a rich talks about reasonable accommodations these are impossible accommodations in connection with this work environment and i don't believe there was any evidence disputing those facts of the work environment in this particular case you know one thing that i do want to point out in connection with this claim that also with his expert he talks about ladders and the ladders and wheeling them to certain places you can't use a wheeled ladder it's a nine foot ladder because there's machinery overhead and you just can't get it to that to the spaces you have to go to you know the bottom line is this company did everything they could for m gave him light duty for ten months where he didn't have to perform any jobs that would require him to do any lifting when it became a permanent restriction and they sat down with him and they went through six jobs to try to find another alternative position form many of those jobs he said well i can't do it because it's going to create shoulder problems for me he didn't have any restrictions in that area when he was asked to look at jobs on the kill forces i don't want to work on the kill for when he was asked to work for jobs on the second shift he said i want to work on the second shift and then he said  finally do you want to work in this area with which requires knives i can't work with knives i'm not going to work with knives so at that point they went through all the vacant positions they placed him on leave he was never able to come back to work to work as a mechanic and he went and got a job somewhere else this company went out of its way to try to work with mr gardner and unfortunately they could not accommodate the lifting part because that is part of his job in this case thank you very much for your time unless you have any questions i think that's all you have  thank you your honor just a few points first on the wage payment claim the question was posed whether this was briefed below if the court looks at joint appendix page three zero nine mr gargamel ledges that the employer failed to pay wages when they were due the authority cited is ninety one a section three that's exactly the issue i've talked nationally that was made up later and you asserted that still of violation of the iowa code i want to know whether that was raised below what you just cited doesn't answer that it doesn't read in the summary judgment process you have to argue to the district court wait a minute that response doesn't make the issue go away otherwise you've sandbagged the district court in this court now was that argument it was argued your honor a you just you just cited the claim cited the statute that's not making the argument where do we go for the transcript of a summary judgment argument or a reply memorandum or somewhere to see that the plaintiff put before the district court that the argument you're now making to this court i don't know if i can identify a better place than where it's written in the brief citing the language of the on the issue of the lifting accommodations and deference to the employer's job description i'll direct the court's attention to joint appendix sixty four this is a job description from the employer and among the other things it lists for behaviors necessary to perform the job safely it says that employers should use proper lifting techniques and get help for awkward or heavy items and of course this is consistent with what mr de is saying which is we work together on lifting all the time why would that change now that i have these restrictions so the accommodation he's asking for is please continue the type of work that was already done before also on the lifting devices in the overhead raking i think that has been discussed by mr carr dale in terms of we're working with mechanics here who are skilled individuals and they know how to do their job so if there's not a place that's obvious to to overhead rig a lifting device they make one in mr gordon says we've done that in the these mechanics are in charge of fabricating some things for the job and so that's just part of what they do i'll also point out for lifting or removing motors that are underneath the quitman what is not in play in this case are any pushing and pulling restrictions so if it's on the underside of the equipment you detach it and pull it out and mr gardner that you know what's the difference to in lifting and pushing and pulling your skull using your arms that are giving him a difficulty from the beginning i understand the concern your honor i'm comparing what was revealed in the functional capacity evaluation versus what he has to do day to day and the functional capacity evaluation said the restriction is lifting floor to waste the max thirty five pounds and lifting waste a crown the max is twenty five pounds so you could do that differently if you were the you know if it's horizontal versus vertical i guess that's the big difference so i just want to emphasize that the purpose on summary judgment is to identify fact issues and even though there's two processes here wage payment and accommodation t process is that when a wry it's not for the court on summary judgment to alternately decide who is right or wrong the court asks could a reasonable jury hearing the opposing views on an issue find in favor of the pla so we ask that the court heed the posture of the case and that's crucially important in a case that's as fact driven as this one