in the st case on calendar garvey versus solomon decision a decision rendered earlier in two thousand and eighteen cats in versus thank you and good luck work that case we believe governs and requires reversal of the district court decisions because in that case like  a summary judgment decision was rendered one week before the trial after the parties had made their pretrial submissions and after the parties summary judgment motions had been denied requiring a trial of in particular we know that because the court considered and adopted some of the theories that the defendants presented on their case presented only in the motion in limine was there any factual material that yes we know well you say so but how do we know because i'm going to dress in the original summary judgment the only comparative that was addressed in as being similarly situated to the plaintiff was a comparative who was  sergeant number one the only person addressed by whom by the town and the defendants in their original summary judgment motion and in the original summary judge motion was addressed in two paragraphs the similarly situation of the sergeant limited there were four pages addressed to the argument as to the each of the officers each of sergeant or one number two and police officer number three the significance of charge number two though is that in the summary judgment motion there was a particular exhibit exhibit k k k and that particular exhibit was a letter from sergeant number two's personal attorney it was a letter dated august th two thousand and eight the only one to tell you about it is because that particular letter was written after sarge number two had served in a transitional light to the capacity for a sufficient window of time that they made a determination the sergeant did that he was no longer fit and could not perform and would never return to full duty so he wrote a letter to the police department and the attorney when he wrote a letter to the police department notified the police department that his client was never going to return to full duty and that if he was never going to return to full duty he was requesting that his current transitional light duty position be made permanent he actually supplied to the police department along with his august two thousand and eight letter his doctor's report showing that his position that his condition was permanent at that time again it was not argued on s it was not argued with respect to sergeant number two as to what his circumstance was before his doctor wrote a particular doctor's note which was appended to the summary judgment it's me the motion limiting exhibit  appended to the joint motion that the defendant's mid for emotional mini was a doctor's note that was dated november th two thousand and nine the significance of which was that when they presented that doctor's note the argument that was made that accompany the present of that doctor's note was that and i'm going to quote from the from the town's argument that it says quote one sergeant number two's physician advised the town that is on duty injury was permanent at which point sergeant number two  already eligible for retirement the town stated that no permanent light duty position was available and sergeant number two retired the significance that is they were offering temporal proximity to the decision of the town to retire sergeant number two as though we add in served for the eighteen months prior to that delivery of that letter in a light duty position with full knowledge that he was never going to return and of the facts meaning a clearer version of the same facts remember in this particular instance we were not given the right to oppose the motion in limine the court reconsidered summary judgment before we oppose the motion  and terminated the motions and dismissed the case had we have had the right to oppose the motion limiting even just a motion in limine we would have pointed out that that prior note the k k k no was a note that was delivered from sergeant number stu's attorney at a time when everybody was aware that he was permanently disabled and they continued him in the light duty position and they did it under a contract the contract which is my client's theory of the case which is that independent of their stated formal policy that they do not have any permanent positions they had a defacto policy they had a de facto policy that would accommodate those who were permanently disabled up until the date of their full retirement which would your client have before he would be eligible for permanent retirement at the time of fourteen months and so the request your honor was was a request that was not made in a vacuum one of the individuals with whom he was brought into the force with whom on the very day he was brought into the force he joined the force with whom he became a sergeant on the very day that he became sergeant the other guy became sergeant sergeant number one was injured injured in a non workplace injury and struck a deal with the with the town as to how he would be retired and it required a retirement by  certain that date certain was eighteen months after they struck the deal the deal was struck on august nd two thousand and eight it's me going back that on august nd two thousand and eleven his retirement date was february two thousand and thirteen when my client asked for an accommodation he made the simple request i want to do the job i've previously been done to been doing while disabled and i want to do it in the same fashion that you've afforded me in the past and you're currently affording sergeant number one but sergeant number one is going to vacate his position and i want to do the same post moving forward that was a simple request it was made it if that was accommodated then then the role of desk sergeant would be filled for a period of years by somebody who could not do all of the requirements of a regular police officer it would have been filled for approximately fourteen months i know but desk sergeant simply become the post of somebody who is not able to do the full range of work on a on a permanent ongoing basis so the record shows that my client was capable of doing the essential functions of the job he testified to it what what what is before the court is a dispute as to whether the job you mean the job you mean a desk sergeant desk sergeant was at the desk right so we're asking she was not always at the desk well there are three sergeants who are on every shift one is the turn out officer one's the road and one's the death sergeant they pilled the pit they fill the positions well that's the argument but there's nothing in writing that shows that they rotate in practice they don't rotate or people have had as conceive of the of the nature of what an accommodation is and accommodation is not getting the employer simply to to do otherwise about some of the requirements of the job you're saying at the employer should structure the job the way we want it structured leaving out the things that my client can't do and forcing them on somebody else when they arise but an accommodation means  somehow changing the employer's procedures so as to enable the person to do all the requirements of the job you want to do simply drop some of the requirements of the job the ones that your client can't do with that's not w accommodation is we're not asking for that we're not saying drop the you're not saying it explicitly with that's the consequence of your argument but there's two halves to the equation right there's the essential functions of the job and there's the marginal duties of the job and so if my client essential functions of the job he's entitled to be accommodated in the essential functions of the job as you view them but not as the employer has viewed them traditionally so interestingly the employer which in terms of defining the essential functions in this case was the police chief his lieutenant what would happen what would happen if circumstances arose that required the desk sergeant to do the kinds of things to do the kinds of physical things that a patrolman must do which the desk sergeant has as among the requirements of his job they would have to be forced on to somebody else because your client would be unable to do them with with due respect general pat didn't run the field the he didn't drive the tank he gave direction this is a supervisory position in the role in the job specification and the job questionnaire it does not say any physical attribute that's required of the sergeant  we could we could joke about out of state officers having donuts and coffee that's not really what this is about this is about a supervisory person who with the age and experience of his job in the performance of it in with by the way i point out for the record that my client didn't exemplary job with with positive reviews throughout this is an individual who's acquired experience knowledge and he's exercising the progressives of a superior a supervisor on staff the function about the rotation about the task of  rotating the testimony from officer lieutenant a chain of coffee was that that was resolved by seniority amongst the people my client would be the most senior on staff he would have the profit of to choose which of the three assignments he could use he chooses the desk that's without a accommodation but with accommodation you saying just give me that and schedule normally as for interacting with prisoners inside the well or are having to deal with people the officer comes in off the road with somebody the arresting officer comes in he's also scored on many occasions by the parole by the patrol sergeant the one who's out on the road duty the the desk sergeant sits in a different room can observe and supervise through live feed camera what's going on there can always be two officers there because as i got to be clear on this this is the largest municipal police force in the state we're not talking about an instance where we have seven to ten officers you're talking about employees of almost two hundred number we  briefly i think cats and does not control this case for a couple of very important reasons it's distinguishable at least for for two very important reasons one is in cats and cats and the parties cross moved only for partial summary judgment not for total summary judgment so when they cross moved for summary judgment none of the parties were on notice none of the parties had any expectation that the case might get dismissed on the summary judgment motion  party then by definition the other party has not had the opportunity to indicate that there is a question of fact and if that were the case in this case if there were facts introduced on the elimi motion there might be an argument to be made but that's just not the case here exhibit k k k which my adversary has made a lot of here was submitted by the town along with plaintiff's opposition and cross motion they raised subject sergeants one dollar and two dollars and a police officer and discussed them at length in our reply memorandum of law of law on pages seventeen and eight that's documented twenty seven on the docket and on page eleven they discussed sergeants one and two and officer number three and made the argument that they weren't similarly situated to plaint f and they were not offered permanent light duty positions and in plaintiff's own reply papers they addressed these arguments on page three talking about defendant's attempt to distinguish reply because they had crossed moves for summary judgment and so anything submitted any exhibits could have been addressed at that point my next question should be addressed to the town let me know what my next question is how do you and that being the case he chooses to be the one behind the desk while the judge i'd rather duck that question if i could and punt and direct my argument in my time more towards the st amendment claim before it as the one being being able to respond to the motion in limine the motion in limine was never decided one way or the other so there's no reason i'm unfair there were there's motions in limine a filed  defendant defendants and she does read decides the summary judgment but not even getting a response on a motion in limine a when she said well matters in the motion in motions in limine caused me to kind of take another look at this this was  unfair though i would say no judge because any thing could cause a district court judge to have another thought and go back and  review the summary judgment motion papers and take another look and decide it on those papers which is what the judge did here that it happens to be the motion in limine a i think is just beside the point and so there's no there's no  reason for a response if the judge happens to be thinking on about another case and sees an interesting argument or sees something come up on the news and thinks oh i should go back and re read those papers the other party doesn't have well none of the parties have an opportunity to respond to that but it's within the judge's inherent authority to do that and so i don't think there's any prejudice i see that i'm out of time thank you morning good morning please the court my name is john flannery i represent the town of clark's town and former supervisor alex chromatic addressing the procedural aspects of this case it's important to note that none of the factual findings that the district court me in deciding the summary judgment motion were in the eliminate motion and not the summary judgment motion when when mr  writes in his brief that those materials were not in the moving papers were being very cute and were talking about the motion papers the the moving papers and not the reply papers because it's in the opposition to the that the plaintiff raises a number to an officer number three the circumstances of those two officers are dealt very specifically and very carefully in the reply briefs that are submitted and then the materials that are submitted in reply by the defense there is not a single factual finding that the district court meigs that is not contained in either an exhibit the rule fi statement or an argument that's put forth by the defendant in both the moving papers and the reply papers not a single one so to stand here and say that this didn't occur is a little suspect the eliminate motions cause the district court to go back and examine the record from the summary judgment motion and recognize that she had made a mistake and to grant summary judgment the bottom line is that when you question of why not a very reasonable accommodation to him what looks like sergeant one officer three sought and received as part of their settlements the same deal that is they could be sergeants or desk officers who are at it was eighteen months for both of them until they retire that's the obvious question or why not for him for fourteen months because mr garvey chose to litigate the issue of whether he was permanently disabled each of those two officers that you mention had claims the town's position was they were entitled and required to work full time they took the position that under two hundred and seventy dollars they were disabled so in the face of it you'll seven see hearing they reached a settlement that they would be required that they would receive a light duty assignment in a temporary fashion as a result of a settlement rather than do that mr garvey chose to litigate an testified in a fashion that when he was at the to a seven c hearing was designed to establish that he was disabled and couldn't do the job when he won that he was disabled but the arbitrator found that it was not as a result of an on the job injury for which that would cut off any compensation or benefits he would receive from the town he suddenly shifted he shifted from i can't do the job to well i could do the job if you give me accommodations but the accommodations require him to avoid essentially all physical contact he would be in a position where he couldn't have any physical contact you referred you refer to the desk sergeant jobs on my duty assignment on a temporary basis it was transitional and when he performed it like duty assignment you mean that you don't do wall of the bending growling shooting requirements of regular know only sergeant number one was ever assigned to the desk the desk sergeant out of not sergeant number three and sergeant number one his only physical disability was he couldn't sit or stand for more than thirty minutes else and he was close to retirement not surprising and therefore of the three people who were who could be assigned to desk duty or to feel duty whenever he had the seniority to insist but reasonably under the under the rules applying at the time that he could be the desk sergeant but even if he was a desk sergeant his testimony is he can't do the functions of the desk sergeant himself he was not physically able to do those functions when somebody was arrested if there wasn't another supervisor in the building they had to take a sergeant off the streets to come in and book the inmate that's a matter of safety this is not it is shoe of whether he had seniority it's an issue of whether he could do the job and when it was in his interest to say he couldn't do the job he testified that he couldn't do the job and then when when the determination was it wasn't on the duty injury his position suddenly morphs and this becomes an eighty eight claim and not a tool seventy district court properly granted the defendant two points very quickly one my client was injured in the line of duty and he he was injured in the line of duty affecting an arrest and he was injured and the arbitrator found that the condition that was  him at the time and issue was a condition that did not have to do with his injury in the line of duty agreed so here's what happens that gets hurt he's got a preexisting condition which is go take some longer than most actually recover from it they go through a surgery when they go through a surgery when he comes out of the surgery he's permanently partially disabled in his left knee he does have the continuing preexisting effect of gallant that he deals with as well but is residual effect to his knee is need buckles that's the condition we're talking about that going issue and so i want to point that out because they say his testimony was designed to show with a disability but he was but he had the disability and he never got back to anything where the claim was that he was collaterally a stopped from asserting in federal court the arguments that were made in state court and in that case the actual underlying claim was a new york state human rights lawyer claim that has the exact same elements as an eighty eight point so when he lost his article seventy eight claim he effectively lost his ability to assert any similarly situated set of facts claim such as the a claim in federal court but but this isn't that case the underlying seventy eight case in this case actually has a final paragraph to it to say i'm not addressing you radiate claims i'm not dealing with the idea those are going to be resolved in federal court why because the essential functions were never addressed there is a huge difference between full duty and essential functions there is a huge difference between what they're saying the policy of the of the department is which is anybody with a permanent disability gets no relief under the idea that's violent of law why because the severity of the injury is not addressed in it why because in addition to the severity of the of the injury the permanency of it is the disqualifier not whether or not the person can do the essential functions thank you thank you thank you all reserve decision