and was actually granted a approved leave by the defendant in this case however whilst on approved leave the defendant violated that reasonable accommodation by taking away his job  and because of his impairment and attempted to replace him with a far less qualified less experienced fellow teacher forty five years his junior regards the failure however if the court can see it from the actual ego see charge on its face mr terry complained that he was replaced while using approved medical leave as an accommodation for his disability and the job of the employee while the employees on leave unless the employer can show an undue hardship even if they can show an end you hardship they must then reassigned that employee to another position that what has he complained when he came back that that job taken is a complete his complaint essentially was after being granted the approved leaved after that period shortly thereafter his principal openly skeptical too and made remarks that mr terry would not be able to be rehabilitated from his condition and return to work and therefore they needed an economics teacher which this happened within shortly weeds of a very short period after that he'd been granted a finite period of leave and therefore according to the o c guidance they they regard that as essentially  terms of why you believe that summary judgment was an appropriately granted west of the specific basis of the argument is that the  f the the you see is what it has actually to investigate the claim made which is the failure to accommodate claim or it's within the scope of the investigation of the c you know the words the the the the decision to remove mr terry to notify him the that he would lose his position in april of twenty fourteen whilst on approved lead the court did not view that as a  violation of a reasonable accommodation and because the court did not analyze that as part of the beginning of the reasonable ongoing reasonable accommodation claim the court then only analyze contention is that the the failure of the violation of the reasonable accommodation mr terry was on began in april and the court ignored that and by nor in it they they were deprived itself of the prior pretext obviously does not apply in the terms of the reasonable accommodation argument and the eighty eight that would go to the disparate treatment claim of the idea and in that context in terms of the prim and the court actually determined there was sufficient evidence to show that mr terry met met his heightened burden to show that he was singled out for in permissible reasons i e is disability remember this is a reduction  force defense made by the defendant and in that scenario the prime aphasia has a heightened burden standard and the court determined that mr terry met the heightened standard primarily upon his princip would take the test the necessary praxis test and from there would hopefully pass otherwise in the words of the principal they would be back to square one the additional crime of the additional evidence of are similarly situated in all relevant respects one mr terry is the economics teacher mr quinn is the history teacher and they are both within the social studies department they are both with the school they both  teach the same children they both evaluated and disciplined under the same the same system used by the shelby county schools and they also report to a common superior which is principal kyle establish that he has superior qualifications to his comparative who is the person chosen to stay and designate to replace him and would have replaced him had he not successively failed those tests leaving the school without a certified economics teacher the there is like a set of where we stated in the brief mr terry has decades of teaching experience he's professionally licensed he has certifications in history  one day maybe mr quinn was in the first few months of his teaching career he was only certified to teach history he had been it was assigned a mentor he he was essential he is educational background was far more limited essentially mr terry was a faster pyrrhic candidate and then if you look if you take those facts and look at the actual defendants protocol that they use when they desire to designate who should be essentially  who the principal should be assigned for be in losing their position at the school the protocol is clear protocol states that the aim is to keep and to retain certified teachers to teach the key here is of the curriculum and even the exceptions to the protocol state that a teacher who is able to teach more areas of the key curriculum as such as mr terry who taught certified to teach history and economics is far preferable is preferable to retain over a teacher who even is more highly evaluated than a teacher who can only teach one area of the curriculum you may want to wind up assessed mr terry as a whole otherwise qualified because of attendance requirements of the job position is that the court unfortunately did not follow the necessary burden excessive absenteeism except for this man was on approved leave i mean just by way of example as a hypothetical if a worker was to ask for required leave to for treatment purposes for let's say cancer they made a decision they needed that time to proceed with chemotherapy they they are they asked for and they obtain the required leave under the logic of the ruling here by the district court they would be able to fire that person whilst in the middle of chemotherapy because they were unable to attend to the job it simply defines the logic it is against the purposes of the a da thank to ensure that employment laws are up held and that an employer's decisions are not motivated improperly or taken under the legal considerations but this court has said that it is not the business of this court to second the employer's business judgments and that particular principle general principle should hold even more weight in this context as the employer is a school system and the personnel decisions of a school system are largely influenced by public policy considerations that affect the education of our school children as well as mandatory program magic needs of a particular school or about we have circumstances where your client was going to replace   the son of the being certified in economics is it so to be certified and a particular subject area it's the same as receiving an endorsement so as a general principle every teacher must be certified in a subject area so mr mr terry was certified in economics and in english and in history mr quinn was certified in history but that does not necessarily mean he is prohibited from teaching up to two courses of economics or a subject outside of his sort of education under state law and so and for example that's why you would you could potentially see a physical education teacher teaching one course of history though he does not have the certification or the endorsement in history and sometimes while that's not desirable it's due to the program magic needs of a particular school so what happened in high school following the two thousand and thirteen fourteen school year is that the principal had to make over had to cut over ten percent of his teaching staff and mr terry held a fulltime economics teaching position  accommodation with him with respect to the disability there was some mention of record as to whether he could and if he had to come in and teach in a wheelchair with that was really never discussed and the whole up he is free to complete his leave and if he makes a decision to come back and he has the physicians out of a cation that's required by shelby county schools then he is reinstated and at that point he may seek vacant positions and this is also it you have to keep in mind that you're balancing my school calendar year so depending on what the needs of that particular school is at any given point in time it may not very well be that there are vacant positions or that that there is available positions  circumstances at the high school when these decisions were made was that there was a full time economics position and then there were teachers in the social studies department so if that looking at whether or not the school could financially support a full time economics position the decision was made that they could cut they couldn't but they could still have the courses taught by the remaining teachers in the social studies department and a he couldn't establish that he was qualified because he was not he was on leave at the time that that accessing decisions were made and attendance is an essential function of being a teacher and so at the time compare no it was not it was it was a decision made by the why couldn't he this is what wasn't really clear to me he was also a history teacher he was  indorsement for history ok so why couldn't he continue to teach the economics but pick up some history courses because the  the principal was told he had to reduce his teaching staff by which he had to reduce his teaching staff over ten percent he had to cut seven teaching positions ok so why why why cut mr terry's full time economics position and not the the position held by mr quinn or somebody else or somebody else because the position itself is what's key here the position is the first is five class is teacher who teaches five coarseness of economics and one course of sociology the that those five courses could still be taught with fewer teachers so you go from fourth meeting for teachers in the endorsements and other subject matters but when you're looking at the the the time that accessing decisions were made the principal had to look at his at at what perjury and what clauses he had to offer and the bodies that he could fill that he could have offered those courses so essentially this is a true reduction in force he made the decision to shrink the special studies department so that so that the full time economics position is the position that d favor of the more expensive the older teachers for a better thing to call them the fact that they have more teaching experience than some other entry level teachers or was that not a factor in the decision process so that's not that was not a factor in this decision making process but the but that would be if you were considering to if you were considering keeping an economic d so that i mean he could have continued to teach those to simply that decision was made to disperse those classes to take them away from mr terry and disperse them among other teachers so instead of having one economics teacher you give one economics class of this history teacher and i was class to the english teacher and all of that so there wasn't a diminution in the need for the teaching of it's just that the support the number of staff members so so you look at it in terms of the position itself right so mr kyle the principal made the decision to to eliminate the full time economics teaching position because that position and the classes that replace him with several other teachers after or is it right after he was able to come back or by while he was still crippled up that the timing of the decision was while he was on leave and that is just due to the fact that every year every spring the school receives what's called projected student enrollment and these are projections and they're done formulaically and that team assisted mr terry in trying to find vacancies again keeping in mind that this is a school system and so every day this the needs of the schools are different depending on what happens but at the time that mr terry came back or was reinstated it that he interviewed for they run the gamut there are some that were middle school english teaching positions and there's record there's testimony and there are current that he wasn't appropriate for middle school english teacher position because he hadn't taught middle school  in a in a while and he also taught english in a while but what ultimately what did happen is that he received an offer from an ass of high school for a full time economics teaching position that h declined and at that point  for a permanent position the job posting itself is a job posting for a permanent position ok but but he but he wasn't given anything in writing about the nature of what his in the following school year opposing counsel stated but that is that was a result of principal kyle's failed gamble to replace mr terry with with mr quinn mr quinn failed the quinn otherwise we'll be back to square one that he failed the test again in june and he didn't pass the test to get certification until midway through the next school year that we're so the result of  that position within five days of notice he was told the teachers currently on leave could return within five days he also asked the the interview well i'm in a wheelchair and i asked about concerns about the the number of the children in the class there were thirty five children thirty five desks in a class he had some regarding mobility around that classroom and the interviews response which is in the record  position he also add that mr while mr terry was on leave which did come to an end in october of twenty fourteen the record shows he actually was interviewing and applying for positions as of july july august july august september october november december twenty thirty different positions which he was not selected for given his qualifications in this experience yes you the some of the positions of opposing counsel as reference which are english positions he's a certified english teacher there were non teaching positions which  some basic experience dealing with the private children he'd had all of those experiences he was more than qualified for and in the the cramming fact was the the the defendant actually selected people with as little as one your experience or non employees to fill those roles instead of mr terry all right i want to wrap up they are right now i can't unless you have any