one is record five three one one aug twenty two thousand and thirteen it says nothing about being on call twenty four seven the second one before the advertisement interview is ten one thirteen record one seven zero zero two it does say responsibilities and or preferences offered twenty four seven call you know they're there to more job descriptions  dispute about that but there was a clear indication of that in the job notice do you lose then well i do not arguing he could have done twenty four hour duty i don't think he could have done twenty for  mean how forty take that i mean do you can you get somebody out take a should know when they're in charge or when they're at a funeral or something like that twenty four seven three i think you have to look at it you realistically there's no real pro that this is a sensitive function of this job there's no proof as to what this job really entailed don't i mean law enforcement jobs typically require the part of the officer to be available to go out and arrest someone late at night or whenever they they find that person who the agents been investigating it depends on the nature of the law enforcement job that is specific is case pacific we had the benefit of having dr philips lewis in act as an expert he is board now i think one of the things happened here as the the defendants have made this job local greater and bigger and more complicated than it really has let me in that regard i think the perfect time for me to get back to  riginal point the target that we're talking about here for him to see is that he has to be qualified and you pointed out that there were two job descriptions that existed prior prior and i'm only talking about the ones prior so let's put the other two aside one of them had to do with being subject to call twenty four seven which was spent some time talking about the other one had to do with the ability to complete forms and paperwork which i believe was also something that was later talked about as a reason for his discharge for his struggles on the job are those the only two things that we're talking about when we talk about qualification i really think so i mean he was doing the job he asked for help with the paperwork it's a typical symptom of p s p t s d that you have concentration and memory deficits and the guy was struggling he asked for help me give me some more personal supervision let me see how you feel is up so it isn't that right this is not so it's not the job description that since we've kind of i think we've kind of now that they're correct me if i'm wrong but rather that the factual issue that you here even under no if we limit ourselves to those two don't both of those to include a twenty four seven subject to twenty four seven call and also inability to file appropriate paperwork the qualified thing when he said this one type of cop that works in new york city where there's constant communication is hundreds of police officers it's all the elegy confrontation with criminals it's a very complex job that you would present that's in the record that you intended to present to a jury to try to convince on both of those the twenty four seven and the ability to fill out the appropriate paperwork and have it filed what are the accommodations that you would argue for four copies of the tenets papers that showed a good example a good pope plate how to do these things now  know he could go get on but you know i mean we always say look we support the troops but when a veteran a veteran who is a war hero basically needs  assistance with paperwork it's not like he did something rigorous it's it he didn't have any real problems until april of two thousand and fifty is not that i can recall record he was promoted we have a man who was not asking for terribly difficult certainly not expensive accommodations and he was he was terminated because of his disability he deserves his day in court and this matter should be has presented admissible evidence that would establish a genuine issue of material fact as to whether or not mr apps are is a qualified individual with a disability under the a d a s the rehab act or  those he must first establish that he is a qualified individual with a disability and it is on that issue that we submit that summary judgment was properly granted that there is no genuine issue of material fact on that particular issue and  mr smith has already identified for you the issue there which is it is apartments position that mr absaroke could not perform a critical function which was being on call twenty four record he was called because he had some patients was there ever a circumstance where they needed him out in the field like that cross to set to apprehend somebody or immediate investigation or an emergency and he was unavailable there's no record evidence of that your honor correct he was called on several occasions because he had a different paperwork issues he needed to fix and the captain was looking for him on different occasions because he wasn't there i don't know the reasons the record doesn't establish what those reasons are affidavit you know these positions are often called particularly the wildlife and fisheries positions for search and rescue functions and that's primarily the twenty four seven rule is they never know when they're going to be called out to go pull somebody out of a river or some he didn't provide examples of that now your honor he just indicated that those were the bases by which the twenty four seven rule was an essential function of the job on that but they will tell you they get called back from vacation and they will tell you that they will tell you that this this rule is because they don't have that many and you'll see it in the record  district and you'll see this is a record they only have like twelve agents in their district to cover you know three or four pairs so they don't have that many is not like they have a slew of one hundred police officers they've got like you know twelve in their district who has the burden of proof from what i know he has the burden of proof to show he's a qualified individual but who has the burden of proof on whether a job function or requirement is i think the employer has that right and then the regulations certainly say that an employer there's deference to an employer's judgment as to what is essential and so here in the record you know obviously there has been a whole lot of hay about you know whether or not you know what job functions are essential and there's different job descriptions but one thing is certain there are a number of documents that establish that twenty four seven is an essential job function report writing is an essential job function law enforcement duties are to central job function understanding what those policies and procedures are so you can go out in the field right and investigate and do those law enforcement functions you skated prior to engagement yes you are and it says as his prior to  two interviewing and prior to posting the job applications and so interviewing is a piece to you and if you look at the sequence of events then use this particular job description as you have the october one job posting he applies on october will actually talks about that the job posting also talks about report writing as well so this is the two before he he applies for the job right and then remember he doesn't get the job until late november right so i mean they're actually really three documents that have all the duty set out before he actually is made a job offer so there really are three different job descriptions but all of this talk about the actual the actual twenty four seven and then if you look at the r enforcement manual itself and it tells talks about functions of work for the cadets at our five thirty one where it talks about again law enforcement patrol component boating safety progress goes to the academy and is trained towards the types of things that are on the line where they can is it checking boxes and filling in blanks or is it so writing prose that i went out and he described the whole  ss some of them are reports that relate to travel expense mileage i mean a simple governmental report so it's a combination of but the ones that were work critical obviously aren't that we didn't report citations they're going just you know and just change the prose that was so you know to to that point you remember on summary judgment what he has to do on this issue of qualification is he's got to show that  has requested that would allow him to perform the essential sins of the job in the court went through that analysis in his ruling blouse and really there has been accommodation requested with respect to the twenty four seven requirement there really was nothing in really or modify it and there has been no testimony or evidence that that particular job requirement has been accepted to wavered or modified for anybody in the past and colonel broussard has testified there's been no waiver to that requirement and the pla job descriptions and the plaintiff has not really come far with an accommodation for that other than one on one time but again he worked with other agents he was given given feedback from his lips and had been for twenty two months and none of that had worked so hard into the district court below correctly so the combinations he's requested had been in place for many many months and none of that had shown any effort to allow him to put to perform  know there's one swan situation where they criticized him for not being able to do a field sobriety test because he had a problem with his eyes twitching in the eye part of the field sobriety test he had a problem with they say now you need to the is supervisor needs to rate these job functions and in the order of complexity and in importance and they all all of the functions  equal one hundred percent that's how you get this all the information about the relative importance of the of the of the function they didn't feel that helped in the in the ones that they they have they didn't feel that and there's no information about that they basically that the paperwork issues the paperwork issue but now keep in mind he's not required to write the great american routine things that police officers do every day you don't see these rocket scientist even a cop is in fact people when cops testify i mean they get cross examined on any whittle thing that's missing from that report that accommodations the judge rule that we didn't show that he could be accommodated perform all these essential functions of the job well this court addressed that issue in the feist versus that was in an apartment o