question that i think may help us think about it yesterday i put here's what i'm have i have a very hard time with from the from the briefing what period of time is at issue is it is it just march th to march two thousand and two of two thousand and eleven or is the time period broader than that and where it is where is that question answered in the record why that seemed that was my intuition coming in ok that we so we have a rehab that claim a title seven act a title seven claim race based retaliation and what you're i think what you're confirming is we should focus on an eight day period and what the evidence is in that eight day period and that's what this appeal is about it comprehensive sense of what you know how the post office treated compared to ours so one of the concepts i'm asking that ok as you do i mean i'm sure you you're probably many steps ahead of me as i ask that question but i'm asking that question because if march th to march twenty two is the relevant time period that seems to me to be the time period within which we have to ask whether your client is a qualified employee and whether there was any accommodation that was even a vailable yes but if were so in that eight day period right yes yes place in other words if the jury finds that those functions were not essential that would mean that those functions are marginal and is the cream with as previously explained reallocating and we distributing marginal functions can be conserved reasonable a com which is that those employees who were injured off the job were given light duty status while those employees who were injured on the job and had pending worker's compensation can have to wait to receive limited duty status well we believe this the reasoning of the district court was also factually flawed even if the court determines that the exception should be carved out from an employer's duty to reason to be accommodated say will employee defendants motion for summary judgment should have been denied because the plaintiff presented evidence relating to an employee john troat who was injured on the job but nevertheless received light duty work before his worker's compensation claim was ac the district court dismissed that claim without explanation largest presented evidence showing that people would not engage and protect i maybe they were treated more favorably therefore that retaliation claim the city letter carrier who couldn't carry mail because he had plantar fasciitis the district court correctly found that the postal service had no vacant funded position at the facility that he worked at that marcus would have been able to  ld it also found that postal service treated vargas no differently than other pair years and so it's judgment granting summary judgment in favor of the postal service again mr vargas says we have backed race discrimination claims should be affirm martin to you to agree that those questions we should focus on those issues with respect to an eight day period of time that is what that is what plaintiff is seems to be focusing on i think we take a look at all of the evidence which spans more time than that it is it is relevant at least in terms of what happened with this workman's comp claim in terms of the relief that he got his workman's comp claim but i think that that's a fair is as far as you really have to act claim it seems like i mean it's not your claim so i can't i can't ask you what you're a no but i mean i got to tell you i was really confused on this because it sure seems to me that the plaintiff is saying there's a there's a failure to accommodate a breach of a legal duty under the rehab act somewhere between march fourteen and march twenty two but not beyond that that is unclear your honor we treated it as a broader question but your honor did bring up one claiming that it did bring up one issue in regarding that period and that was whether the person whether mr gargan would have been capable of performing his job during that time period and our argument in front of the district court was that no he was not capable of performing his job he when he went to  to ask for a modification of his job duties from a supervisor he said i can't do my work i can't do this work anymore i can't do the specific job we're halfway there i might work description and then when he went and then when i went before that because his doctor told him he can't lift more than fifteen pounds in the sea twenty seven required lifting as much as thirty five pounds right among other things i believe the doctor also  that he couldn't stand for more than thirty minutes and he couldn't climb for more than ten minutes there are a number of things that he testified to during that position and dish and the weight restriction but the bottom line is plenty of fish out of shape as he uses his feet to carry the mail so i i would agree that he was not capable of performing the job at that point and therefore in our view we argue that summary judgment was that he wasn't qualified to perform that job be that as it may  the district court was that was not one of the district courts bases for granting the summary judgment motion but of course this court can review anything in the record he can affirm on any basis on the record and if in fact it's fine it finds that mr vargas did not meet the st elements which is what we argued i want to get right into the issue the definitions of light duty and limited and it's something that i think needs to be clarified here are two different terms dealing with two different sets of laws and mr vargas has decided to try to co mingle them to show that he has some type of a case under the rehab act or under title seven light duty is something that the postal service may offer under the rehabilitation act pursuant to its collective bargaining agreement  article thirteen the national association of letter carriers the collective bargaining agreement with mr vargas is union and it says that postal service should offer that work work like like duty work is available and should offer it if it's available but because it's a rehab act situation it's not required to create a job if there are no no jobs or assignments that are available the only evidence that we have here they didn't know of anyone who received light duty during this time period limited duty on the other hand is strictly a creature of comp statute congress passed the workman's comp statutes make sure that protect the workers that were injured on the job so when you have somebody like mr vargas who claims that he was injured and so on the job once the department of labor accept that claim the agency then has to make work any kind of understanding is what happened once the in coordination with the department of labor the postal service would then have to issue would have to allow them to do some type of light limited duty again these are very similar terms so i'll just call word they have to give them some time to make work tasks that aren't necessarily related to what they what they normally do and if they can't do that then they then part of labor pays them compensation for the time that they're off so that's something that is not determined by the postal service it's something that determines strictly by the department of labor and in this case the only evidence is that mr vargas just like the people that he's claiming are comparable were given the limited duty make work after the park after the department of labor finally approved their compensation request and not only that in this situation and this just started really late specked your timing issue in so once again we we assert that mr vargas has not is not shown that he is qualified person with a disability under the provision judgment on that on that element alone but as far as element three there's no evidence that anyone was treated more favorably minister of arts the only evidence is that people that there was no there were no light duty  assignments that were given there were no there was no modification of existing jobs that were given was only limited duty this make work that was given to all of these comparable employees that he's identified and that only happens with the coordination with the department of labor after the department of labor approved each individual compensation claim including made he took he took time off of work but he was ultimately compensated for the order of the department by the postal service and the department and per the order of the apartment later once it's proved his claim some months later for that time so he's always been he's is not any money for the amount of time that he was off work and fully compensated under under the workman's comp pro honor the only only thing on the record that we show is that he was and this is in the restrainer he was fully paid for the time that he took off and that's one of the other things that's interesting to hear one of the people that he's trying to point out it's