please the court adam carr with the employment law group on behalf of gen harwood let's start with the four thousand three hundred and eleven dollars claim we brought this appeal to correct a mistake that the district court made by dismissing out a motion to dismiss stage the all she's a pilot at american airlines and she gets a fit and this doctor says you you know you can't fly now or the f a a says you can't find out he doesn't get terminated or whatever he goes on  but for those facts the difference between that and his military service is just that his military service so that disparate treatment is what we should be able to show and what we alleged and that's in paragraph three right up front so respectfully i think that the district court it wasn't judge or grady a different judge dismissed out that part of the complete complaint and we should have been able to get discovery it's important for this reason and that is had we been able to show discrimination had we been able to get discovery about discrimination about for example how do you treat military versus how do you treat the military how do you treat baggage handlers how do you treat you know which we have got en on the difficulty is it doesn't seem like the operative facts are too much when he st notified american airlines that he was coming back want to be assigned as a pilot but for the september one date if you don't have a medical you're not coming back so so everybody knew that he was not being reemployed and so when when did the medical come up i thought it came up wants august came up of few days know ok so when that came up but before them he was scheduled to appear on september st they said your i heard you got a new job you're a pilot in the new yorker i was always already a whatever it was he was always a pilot the escalator position was to go but that's not an issue the question is they rehired and they said there was no parent there was no immense radius and you can't come back because you're in the service they basically said you're come back your request is granted to fly on a rose when they process and that the different thought process is had he and i show by the disparate treatment that had he been and we have this in the record if he was just a pilot with without any military service get a well then i can better prove willfulness and the liquidated damages is the that is that you sarah has many great qualities one of its not so great qualities for employee lawyers like me is that it does not have a great damages structure so what does it have it has liquidated damages on your economics which is a doubling and four willfulness and i should be able to show reckless disregard i should be able to show those things and i believe that i allegedly discrimination claim well i think it's and under it all to allege disparate treatment and i've done that in paragraph three i've also done it later on in that in the complaint and  had the f a a said you can't fly because of your medical condition while he was there she would just go on sick leave but but because of his military service she is kept out in the cold and that is up the harwood case and learn what had happened we didn't think that that was something that was too much to ask or for example to have training because this had been a policy a seventeen year policy the employer had so for all of those reasons and then i want to just point out one last thing on the mitigation of damages and then i'll reserve my time that i didn't put this in my brief but subsequent research shows that with respect to the mitigation remember what's happening on that he's he's told you can't come back and he's back he's got time from the air force that he's already earned over in saudi arabia so he burns some of that leaves and the judge counts that as mitigating we concede that some of that is mitigation but some of it is not and i point your honor to your th circuit decision in a case c thank you are any time before american airlines may please the court i'd like to certify could with our main cross appeal issue because i think that issue resolves all the other issues in this case the district court granted the pla statues were promptly right it does and the regulation says promptly should be within about two weeks that's right except in unusual circumstances but but but if that's the question in the case whether a lot of lets the question but i just trying to get you on the language of the statute when you're making your argument i absolutely agree with you so that was the next thing i was going to say is the reason the district court was incorrect that that general holder any returning service member has to be reemployed immediately and no particular position is because the statute says that the returning service member so long as he satisfies the conditions of four thousand three hundred and twelve years drew near the ordinary course the statute would say this on the facts of this case out and oh because of his position and because of your position but these i think congress intended this to be fairly prompt well so i i think i agree with you in principle not in the particulars but in principle about everything except when you said right at the end which is that they could have just put him in a job to read newspapers until they found another position that is not how you sarah works so as this court is held twice section forty three  us is a question depending on the circumstances and in the ordinary course it's two weeks so here's what happened here i talked twenty of the company finds out about about general horrors and he said he tells them that he might not be able to  get a medical license for a few weeks he might not be able to show trading on september rd or th or something like that right so there's a back and forth and also temper st he says i would like to be reemployed today in the position of pilot and the company responds and says that's fine if you have a st class medical no problem let's go for it he says i don't why are you imposing a new condition on me to email exchange on september st three days later the company responds and it says i disability and so either let's work together to see if we can accommodate your disability for example by letting you extend your leave to see if you can fix the problem or will work together to come up with another position but the the end of the email was let's h meeting to discuss our options and it was radio silence for almost a month now there is a well accepted principle under antidiscrimination law that when it comes to accommodations and things like that if if i'm sitting in an american airlines why say let's discuss it this court decided the same thing well let me ask you though he doesn't cooperate is that relieve airlines of its responsibilities no no the airline the airline has a response all we're talking about his promise right now right so the airline has a responsibility of of of re employing under four thousand three hundred and twelve dollars it does not have the responsibility of every employee immediately to no particular position which is why the district court as a legal matter is wrong and must be reversed on that point i agree with you that the question is whether reemployment in this case was prompt and all i'm saying is when when you're looking at the when you're taking into account all the circumstances one circumstance you should look at is whether how do you know harwood responded to americans overture so on a timer st he responded here are the four positions that i would be i would be interested in if i can't get a st class medical and then three weeks later american came up with a brand new position from scratch to satisfy  his request so it seems to us that is prompt as a matter of law but if you disagree with that then you have to reverse the district court's decision that american violated the statute by not employing general hard to no position at all on the st day and then figure out the right position later and remained to determine you know what would have been prompt in the circumstances and then you know the remaining time between that date and october nd what the what the right damages remedy on august twenty one or august twenty two or twenty three did any of those things what that means it because he was he was saying i want to return as a pilot or did we do that and we responded we responded three days after he was supposed to return that let's work together and see how we can accommodate this problem and he didn't respond at all i'm saying is when you're when you're determining process you should take that into account because again there's a general principle both under userra antidiscrimination was really to me are arguments really  failed to employ him immediately because it believed that four thousand three hundred and twelve requires immediate employment before eight position is identified and and or created in this case or whatever the case with maybe that's incorrect the question is i agree with you the question is whether reemployment was prompt our position is that it was but you know if the court disagrees with that then the question would be remanded to the district court of law to determine promise you that's that's his entire claim here what we said in the end on the in the september th what letter is st one way we can do this is extend your military leave so you can figure out and we can help you if we can get your get your waiver then the letter says if there's nothing that we can do to reasonably accommodate you so that you can return to flight status then we can explore other paths please let me know when you can when you can have a meeting or call to discuss our options and then there was no response for a month and so and so i think the main point here is that the district court was wrong to hold that four thousand three hundred and twelve requires immediate reemployment to no particular position that the statute requires proffer employment to the forty three  that was his position exactly and that's and that would be a no well no the but but the statute is extremely clear and i can't emphasize this enough that that age and employee returning service member can not be rehired that the statute does not allow for reemployment into a position for which the employee is not qualified and the reason that so is crucial the st of all the statute balances the interests of employers and employees obviously but also just from the perspective of fairness forty three terminations without cause but if an employee is hired into a position for which she is not qualified that is for which she doesn't have the ability to perform essential tasks those provisions after after rehiring wouldn't apply because if the employee doesn't can't do the job it's not discrimination to terminate him and if you can't do the job it's not terminations without cause which means the statute only works if the employee is rehired into a position for which  american airlines made its position very very clear prior to september st we will never really employ you without a st class medical and let me just say a few things about qualifications a pilot at american airlines or any other airlines coming back from military duty is not qualified to get into that in an airplane and start flying that airplane day one they're not they need landing currency they need check rides they need all this other stuff and so the fact that he didn't class medical from the f a a was only one of many things that made him unqualified so if we're going to take the position that he's unqualified forgive me but every police officer every fireman every pilot is prior to the flight director jerry shaw jerry shaw said well what would you do and he said it oh i don't know but why don't you just treat me like every other pilot treat me like every other pilot that's all he said so she didn't insist on it but but your honour's to your point about the reading the newspaper that's exactly what happened on january twenty six let's look to see what happened then he gets the job he gets reemployed and guess what he's not fine for three weeks he's at home waiting trainee but he's on the payroll he's got medical benefits and that's the point when and because it's winter i can't help myself but you know what's the issue here the issue is do we keep the federal out in the cold unemployed or do we bring them into the employer bring them out of the cold make them unemployed make them not unemployed bring them in and then work with that let's ask the question what exactly did american airlines do to help general harwood get qualified did they help with medical know did they put him back to his medical leave no he had to go all around pay for doctors and sure they should have done that i think your that was an idea your honor if i if i may that the record is that was an idea here's the thing you're just looking at the bus decision day it's ironic that the the employer here is taking the position of ms but that there she was lacking qualification and my client is taking the position of the employer in bots that the st thing to do is to identify the escalator position that's the one thing that american did right here they identif met medication it's very common and if i may your honor had we didn't know as of august twenty whether he would ultimately get it or not but let's well you know if i gree with you it's but he would need a waiver i mean yes if any l a is just not going to let people pilots fly who have that potential a great a great and eventually he would have but let's assume something else let's assume he needed a medical condition operation or something who pays for that that can american shown its duties what did america do to help resources at their disposal to get what is needed it says in the statute and in the regs that american will help him be calm qualified my argument in the brief i said let's assume it's a truck driver he doesn't he comes back from war he doesn't have a leg and the leg is on the accelerator now the guy needs a new license he needs to figure out how to drive a truck without a leg what does that employer to keep him out of the culture learns how to drive this one like no the employer brings him in brings him on board brings them under medical and teaches them how to drive a truck with one like and and my argument is is very very simple the employer here did nothing it nothing to help and as to the radio silence i can i can say and i think your honor picked up on it at that point they had made their position abundantly clear and on october one when the two men spoke mr ha that he was not going to be getting any back he was he was not knowing whether he was if he takes this position in dallas which doesn't have specified pay or anything what is he going to be giving up is he giving up his right to be a pilot that was unclear it was so vague and on specify that it wasn't a real offer so if if i may sum up the the essence of this case is that the district court got it right as to four thousand three hundred and twelve as to the merits of it and would never reemploy him that's obviously not true that would reemployed him on day one if he has st class medical it on september th explained let's work together let's have a meeting if if that doesn't work out and at the end of the day they created a brand new position for him based on his own requests i think the most important legal point here is again american is no employer is the session does not provide for having the ability to perform the to essential test of the position not being able to fly means that somebody is not qualified to be a pilot of course there was so so at that point the question is american gave him an offer on october nd the question is whether that was prompt there was no violation of this person a violation of the statute by not providing a job on forty on september st and then figuring out later which is what the district court held so again we think we think the offer here was prompt conditions are satisfied everybody agrees that they're satisfied here for reemployment so it's true that american hatchery employed general hoar would then share shall be entitled to the re employment rights and benefits and other employee employment benefits of this chapter that everybody agrees is  legal principles though that i think the district court by would st hold just the principle of the requirement of immediate employment no position is just wrong and of a very big deal apart from this case but nd the district court extended damages through january