employee of the city a pill city at the time of his constructive discharge in two thousand and twelve back in two thousand one year after he began with the city he was involved in a serious accident and which he fell from the roof of the city hall while we know that we know that some don't take your time there were no banter sure i have one question for we get into the guts of this whole business which is he did finally he succeeded in a second go to get disability so he's on disability pay now but he's also suing saying essentially i should have my job at now and we don't always give you know for you so that even if they went on always get their job that's what he said so how do we jog the two of those i mean he see if he wins here is he gonna now not be on disability he gives that money back how does that work well yes your honor that would be something that he could consider if the court were toward that room and the really want well what he really want is to continue to work so he would rate would he return his disability pikas that means he wasn't really disabled well he could your honor yes we would argue that mr boyle's loss to the value of his retirement is so great that that it would overvalued social security he was thirty seven years old at the top with this occurred he had he had thirty years perhaps to continue to work and build toward his retirement with the city appeal city but that was cut short this was the problem i mean there are severe e i factual says situation he will agree and we're all sympathetic it sounds like when he injured himself he had a nice boss who said let's just make some practical arrangements here we won't really make you do the job you're being paid to do we'll give you another job why in the world titles didn't get changed all that we might be in a different scenario here but they didn't and then you get a need a new sheriff in town so to speak and they say we're going to make the people who are have the titles do the job in your client was disabled he could not do the heavy lifting that that was his job title and so getting to what i see is a problem there are several problems i think but one problem is he makes these applications for disability retirement and swears underoath with doctors he absolutely can't do the essential duties of the job that that or that is his job it's hard to come back is it not now and say well you know what i could with accommodations and if you could help me on that argument as i'm sympathetic to your client but i'm having some trouble with that one certainly your honor first it's important to note that mr boyle was not a heavy equipment operator for eleven years for eleven years he did not perform the essential duties of behavior equipment operator job  in one day and say you know what we're firing is foreman you've got to go do a job you can't because you got a bad back well but the city didn't do that and under the two thousand and five agreement your honour's judy tipped and the director of h r signed that agreement that the contract specifically shows he will be the foreman we will give him a written notice if we remove him from that position and assign him back to heavy equipment so that contract in itself shows the cit still not just officially do it the way everybody else does it changes title why didn't they in two thousand and one when he stopped performing heavy equipment operator duties i can't answer that question for the city but what i can say is fixing a paperwork  does not rise to the level of showing an undue burden this even trying to show that or whatever the documents the drug ordered say about two years it's said that they would renegotiate his salary if he was doing well in that and had nothing to do with mr boyle he wanted to go back to the shop as a mechanic and when he did that's when mr martin thought i have a bacon so here i could i could accommodate paul let's put him in this position for two years and see how he does and if he does well we'll renegotiate his salary in two years because what they did they didn't do that and he performed exceptionally for over seven years would leave you about well mr morton and he would talk to mr martin about it mr martin went to the mayor mr martin went to the city council i hate advise them we need to renegotiate his salary over the course of that seven years it was never done heavy lifting job the heavy machinery job he could have been let go so i'm sure he was not going to complain he's grateful to get a paycheck he's in love with her this fired he certainly was and he wanted to continue working for the city a pill city what it would what it sounds like gossip  comes and he's this is bizarre how this is going he says what the heck what kind of this is no way to run a railroad you know with the guy that stay in the foreman job out of b the the guy with the title out of the guy doing so he wants things to go in a more organized than normal fashion what is he supposed to do with crowe now you're saying essentially they should say your client gets to be foreman is crone our out crowd gets fired i believe they should have been paying the employees for the part what are we supposed to do gossip comes in and you say my client sort of like latches or adverse possession he's been there you can't you got to let him keep the job what do you do grow still in the mechanics department of the time of over seven years it when mr boyle is considered the exclusive straight department foreman is under speed and he was the only employee performing street department foreman duties that entire time so at that point being that they assigned mr boyle to the vacancy that mr crow voluntarily left his job in two thousand and five that job was mr boyles it is our contention that that job was mr boyles of the straight department foreman even though they had a paperwork error now that paperwork error and correcting a paperwork error that has existed since two thousand and one two thousand and one he had not been performing heavy equipment operator duties how is that so disruptive to the business operation to deny somebody a reasonable accommodation more than a paperwork error though when you've got crow they're getting the salary of the foreman and you're your clients getting the salary of a heavy machinery operator it he may be doing other things but that's a little more than a paper with me and the problem is they never never for whatever reason maybe martin e that the mayor and city council wouldn't approve this arrangement he had made and so your client benefited from it until he didn't when there was a new boss that said we're going to follow you know the technical rules here well i would say the bill city benefited from the exemplary services of mr boyle in that position where his good performance is undisputed he needed no accommodation in that form and job but that was removed he also applied for a maintenance superintendent position that he was not and the defendant failed to even look at any other recent poll accommodation for mr boyle all right thank you  may please the court i'm afeard perkins and brianna young and i represent the city of pale city alabama how city alabama created a little bit of a mask well i think you've kind of put put your finger on the issue here what they actually did benefit mr ball mr martin out of the goodness of his heart of friendship a word for whatever reason he decided not to get rid of a man who could no longer physically do his the heavy equipment operator job that he was hired to do when he was hired in two thousand his only title with the city for the entirety of his employment with the city was heavy equipment operator he falls he h dispute about there where he comes back to work he can't operate heavy equipment which is an essential function of the heavy equipment operator job so what the city does is first put him in an office with the utilities clerk to help let her let him help her with paperwork and then they put him in the shop office to do paperwork there and then in two thousand and five mr martin decides hey well let's let him do the the functions of the promotion is defined as a permanent assignment of an eligible and qualified employee to a position in a higher grade than his or her current grade and accompanied increase in salary it must be in writing are do what you need to do to make inform and put crow wherever you put that wasn't done which suggests to me maybe the record doesn't show that i didn't think the mayor would agree to that arrangement is that what's going on i don't know if that's what they  needs to have an adjustment in his salary he should go in make sure that happens or be told no or whatever but we don't have any evidence in the record that that the mayor whether mr martin brought it to him or not there's no evidence in the record that one in fact if he decided if mr board decided to file this lawsuit in two thousand and five he could not have forced any court to put him as an acting foreman at the time because that would have been a promotion and of fish or your demoted so to speak to any other job he since two thousand and one when he became the foreman he retained that title he retained that paid what happened was mr martin want accommodate mr bork and this is exactly the situation that this court has spoken to in prior cases this is the lucas case where the courts say that the city did more than the law required case that this court here that an employer that deems over backwards to accommodate a disabled worker must not be punished for its generosity but being deemed to have conceded constructively we should construe him to be foreman even though technically he wasn't and that he essentially was fired from being foreman i don't know that she can tie that he was fired from being foreman based on my disability versus you know it was a mass as far as the titles and all that your argument is that even though he's performing the foreman duties he's not the foreman because that's not what he's really listed as on the payroll is that your argument yes and not only is that my argument that's the allegation in the complaint that he could not do the heavy equipment operator job and so bite mark accommodated him about allow him to do the forming duties so i don't see how there can be a dispute when that's the allegation in the complaint and the the othe problem here you mention this is the unique fact situation the other problem here is the time that the sequence of how this happened he was acting as a foreman and he heard a rumor from one person coworker who told him who allegedly told him that if greg gossett gets the superintendent job he's going to fire you now this happened in early june mr bork testified  that he decided between june sixth and june eighth two thousand and twelve to apply for disability retirement and in fact on june eighth mr martin wrote a letter on his behalf in support of his application for for disability retirement explaining all the ways he could not do the job of the heavy equipment operator he couldn't stand for more than a few minutes he couldn't sit for more than a few minutes either as he an application he was operating an assumption that's what he was unhappy equipment operator absolutely because that's the that's the job title of this on the application the application that he signed under oath and on june thirteenth he got his doctor to to certify as a part of this application that he was permanently disabled and that there were sions that would allow him to perform this job because he had a chronic back pain issue he has doctor that statement under oath that synod to the retirement systems of alabama in an effort to get disability retirement he did this one might martin was still his to print and he did this before the city ever posted the opening for the new street superintending he did this before greg got it ever appl for the position where got to testify because he was a sitting councilman that he needed to check with the ethics board to see if he can even apply for this position and all of that had to take place before he ever applied and then the decision to hire him wasn't to july second but the disability application was june the fourteenth and for mr bourne now to say that he was forced to apply for disability retirement because of something great got to did it after he became the stup intended it just doesn't work because the decision had already been made before he became superintendent and that's the other part of this case that i just don't see how plaintiff can get around because they're claiming that he was problem is he's made representations to the retirement system about the bam not on that he's probably disabled but that there are no reasonable accommodations to allow him to do his job and now he's coming in the court saying i can't do my job security disability benefits was also bringing in eighty eight claims and the defendants in that case one of the court to say that just because she big because she has a disability benefits that precludes her from even bringing plane with a string for say no it doesn't necessarily allude her because there could be of small little window where what she told the social security administration about not being able to work versus what she's claiming in the  about the being no reasonable accommodations that they could co exist we don't have this circumstance in this case because unlike the source the curate administration who does not consider whether there are any reasonable accommodations that would allow applicant to work the retirement system of alabama does consider that that's one of the blanks on the floor and twice mr ball had a doctor fill in that form and say not only is he permanently  but there are no reasonable accommodations that we that would allow him to perform his job and be a heavy equipment operator in addition to that every year since he's been approved for retirement disability benefit he's to submit another doctor's certification so in two thousand and thirteen in two thousand and fourteen about a month after he filed this complaint and again in two thousand and fifteen he submitted to the retirement systems of alabama forms from a dr death and he remains permanently disabled and that there are no reasonable accommodations to allow him to be a heavy equipment operator that means by law he is not qualified to be a heavy equipment operator and he could have been let go in two thousand and one when he got hurt and after he came back and couldn't do the job the city or mr martin for whatever that you don't have an obligation to put an employee in a position that's not vacant it's clear that you don't have to promote someone to accommodate them for their disability and so for all those reasons staying in that position as acting foreman is not reasonable and it matters not that he had done it for seven years that's the situation at this course based in the whole book big city of after read a case where a detective had vision issues and the police department allowed him to try to keep him in the office doing doing investigations that he could do by phone and if he had to go out then they had another detective that had to come in and take him out and if he was on call well literally another detective had to be on call because he couldn't drive in there certain things on the thing that he couldn't do and so the city accommodate him for a while but providing that they got a new resigned after he was awarded a scholarship to go to the university of georgia and take advantage of rehabilitation education benefits in this case mr board decided to separate from foreman he says effective bucks over first because he got approved for disability benefits so that breaks the chain that anything michigan acidy could have caused him to leave when he got disability benefits which is why he left and because nothing mr gosset did happened before he applied for those disability benefits so for those reasons we don't think we believe that this question affirm the trial court order which granted summary judgment in favor of the city because mr bork was not qualified for the position that he which was heavy equipment operator and he could not show that there was a reasonable accommodation available that would allow him to continue to field essential functions of his position your honour's under cleveland the supreme court recognized that there are too many situations where a previous application for a system and a later claim that you are a qualified individual with a disability can comfortably co exist and this is one of those cases the city should have wanted to accommodate mr boyle he was a hard worker he performed well he had a good history of work performance the city wants to argue oh it was just mr martin being a nice guy well the city has the duty at wall to provide a reasonable accommodation and its failure to do so it must show undue burden now i'm hearing the paperwork errors and i'm hearing this and that but i don't see undue burden either with allowing mr boyle to remain in the form a position that he performed with exceptional performance for over seven years or helping him identify no other reasonable accommodation a burden it would certainly be a burden on mr crow would be if you got gossett who understandably says this is crazy we got to get this thing straight now he's doing what if he wants to straighten out and do what you want burden on not pro but also them because they were doing your client a favor to now have to deprive this other employee of the income he expected to getting there is no evidence in the record that the city couldn't afford to pay both employees the form and would have continued working in that foreman position at the heavy equipment operator pay just to keep from losing his retirement he testified that he would have now the mayor need the entire seven years that mr boyle was in that position he dealt with him regularly so it's disingenuous for the city to argue that no one knew about this paperwork care during the seven years they allowed it to go on and thus the records show that the mayor the mayor may have known that your client was functioning as foreman does he now did he know that he was not listed on the paperwork his farm and the mayor go back and check all everybody's personal records mr martin testified that he went to both the mayor and judy tipton the director of human resources to an attempt to correct the director of human resources knew she's the one who executed the contract to put him in the position in two thousand and five so the city was on notice of the discrepancy  while that's why he drafted the contract because he knew it was it was not in compliance with the city's temporary assignment policy the city only allows people to be misclassified under their policies for one hundred eighty days before giving them the corresponding pay to that job and mr martin knew well we're going to put mr boyle in this position for two years to see how he does as an accommodation then we need to look at renegotiating is pay if he's doing well he knew that that was outside that you hundred eighty days and that's why he asked the director of human resources to sign that contract with him in two thousand and five to make that b