record admits of different percentages as to how much labor was part of being a manager or is one or are you making an argument that a by definition  manager is not going to be engaged in some of the more physical activities that tanya was i'm i making bold arguments judge and then let me start with that because the essential function in the record here we have testimony from jeremy gilson who was miss tanya's direct supervisor who had the most contact with her was a regional manager overseeing other store managers and who had himself been a store manager for seven  years and his testimony was that he expected missed time in as a store manager to perform physical labor twenty to thirty percent of the time twenty to thirty percent of the time is not constant it is not frequent it's occasional and it's undisputed in this case that she could perform all required physical tasks at least occasionally according to what dunham defines as occasionally mr gibson's testimony was in fact consistent with ms time instead of only that she spent the majority of her time  management supervisory duties and directly contradicts the testimony of dan c slack at the testimony that was adopted by this the district court that seventy to eighty percent of ms times time was required to be engaged in physical labor of course i would note that even seventy to eighty percent of the time is not constant there there is a written job description well let me let me rephrase that there are written job descriptions referenced in the wrecker one is a store manager job description which clearly applied to ms tanya and because it has the when she was star manager of a nominee because it has the story number nine hundred and fourteen for that job description talks about minimum requirements with respect to lifting and moving there are two other store management job descriptions referenced in the record run from eight of two thousand and eleven when she was at the rice lake story store one hundred and twenty seven clearly unapplicable and the other one from nine hundred and eleven dollars but neither contains minimum requirements language i will concede and acknowledge that the job descriptions that dunham's relies upon contains a section on the nd page about essential functions which appears to be largely boilerplate but th job description cannot be read see the essential function section cannot be read alone or in isolation it has to be taken in the context of the entire job description which contains sections for position summary primary objective and list twenty five dollars specific tasks and responsibilities notably there is nothing about physical labor in the position summary in the primary objectives or in the responsibilities let alone constant and frequent getting to your other point employers judgement is evidence of essential functions and dunham's judgment clearly was that the store manager is exempt from the fair labor standards act that at least in the case of determination by of judgment that time its primary duty was executive work as opposed to manual labor another of the factors to be considered is what the consequences of missed time and not performing constant infrequent physical labor and the evidence in the record indicates the consequences were non existent or minimal there is evidence on the record about dunham's planning to to allocate more employee hours to the store due to time his work well that is certainly a an argument that the defendants could have made by raising an affirmative defense of direct threat they didn't raise that affirmative defense and if they did raise that affirmative defense they would be required and well your honor i took your question your st question i think was slightly different and that was whether or not you know she could do the job because there was a risk of injury the the  nd question i think you asked is whether or not she could perform the essential functions and i believe the evidence on that is really not in dispute the certainly the permanent restrictions are not in dispute ms tanya testified that she could and did perform all required physical labor by using either her right arm or her left arm or both along with the numerous assist of tools and devices available like ladders poles carts laughs and taking short breaks but you don't have to take her word for it because we have two physicians opinions in the record from which a reasonable jury could conclude that she could perform the central functions of her position the st being the defendant's own i m e evaluation in late october of two thousand fifteen that was prepared for purposes of dunham's defending a worker's compensation claim and in that opinion dunham's representative opined that she did not need any activity restrictions with respect her right arm and shoulder any applying that she in fact needed to use the right shoulder more rather than less and then there is doctor he bills both in opinion that was distinguished based upon the different job descriptions that she could perform the sense of fun sins of the store manager position without accommodations and that the only restrictions as to the store management job description were frequent reaching outward rather than constant going to the cage and reaching above the shoulder rather than frequent and then you went further and opined that you could perform all duties with accommodations system devices such as ladders and left i am not aware of anything in the record indicating that there something she could not do she did delegate and responsibilities not because that was an accommodation but because that was re both expected of the store manager to reinhart while you have two minutes remaining i will reserve for rebuttal right thank you counsel mr davis can you have to know your honour's may please the court before i address some of the points made by opposing counsel i think it's important to take a step back to look at what this court case law is the actual test for determining when a job duties are essential functions because when applying that test as a district court found it should be pretty clear that the physical labor is an essential function for dems managers now the main factor is this court has held is the employer's business judgment what does the employer believe the essential function is to be back this court has said generally it will not  including managers are responsible for their physical labor that's required not just the stock the store but also to assist customers with merchandise and time in the nets similar to the previous case this is the case of the western district of wisconsin where the parties have to admit or deny factual statements on the record here in this tanya made and i'm referring to her response to the finding of fact paragraphs sporty in e c f number thirty five her claim that this job is mostly ninety percent nonphysical quote contradicts the company's expectations of its store management throughout the company's two hundred and thirty two stores and the experience of other essential function of the job st let's talk about the written job descriptions there are only two in the record that judge crabbe relied upon the courts where there are some ancillary breaking in this court where one of the job descriptions that my friend referred to is not in the record the two that are in the record are identical they actually contain a section that is called essential duties and that includes constant handling and reaching outward frequent reaching overhead frequent lifting forty pounds among other things it's also admitted in the record that the names came up with the job descriptions based on field research and observation of the time spent by actual dom's managers that's that admission is paragraph eighteen in the same document p c f number thirty five so these these are what the actual observations of actual star managers that these co frequent constant handling of frequently change frequent lifting those are consistent with what actually managers at them step in that sector the experience of past and current incumbents and job undisputed again judge crabbe found that the two managers who immediately preceded this time in did engage in the sort of frequent physical labor that's called for in the job descriptions to current incumbent mr lien also testified that he spent sixty to seventy percent of his job performing these types of physical duties again that's not disputed that's his observation and then the consequences are state the district court found that if somebody at the managers don't do physical labor somebody else is going to have to so either somebody have to be hired to pick up the manager slack or these physical duties have to now be placed on to the other employees which can impact customer services as judge crap so every factor as to what our central function favors diamonds in this case and that's really the that's really the backbone of judge crams opinion and we believe that engaging in physical labor is a misrepresentation of the record i have cited to his actual deposition testimony recorded in the break that twenty to thirty percent of how much time mr gilson has experience and how much time was spent reaching mentioned the reply brief they claim we waive the sergeant i'm not heard an argument from my attorney before that they can misrepresent deposition testimony and then say that the court has to accept it but we don't even have to go there because again we stated in later that the fifty percent left thing that fit that he immediately thereafter said fifty percent of time is spent listening so this argument that mr gelsen testimony is inconsistent with the job descriptions or the experience  managers is just not accurate and let's remember here it's important to remember when we talk about the record shows that there's nothing that the food can do her own doctor imposed a restriction of no more than two pounds of lifting with her right hand she had previous restriction of fifteen pounds on her left hand so the record is clear that she had to spend even if you just take that twenty to thirty percent of overhead reaching that is an essential function of the job and she cannot do it because the record is clear that she is not able to reach overhead and is judged and you pointed out her injuries in this case one of the key injuries was when she was using a pole to try to take jackets down from overhead and she injured her shoulder doing that and it doesn't exactly go to the point the judge saying he pointed out this is not a question of a direct threat this is evidence that suggests that in fact this was a physically demanding job she was performing those d in the short term any time i have left i would like to go to the expert reports the st as judge cram held and we haven't heard the battle on this point this or the workers compensation examinations of the rd parties it was not intended to analyze essential functions the ability of miss tanishq reform essential functions and as you point out in the briefs it's unclear what job description this rd party doctor was looking at it's clear he didn't work at all the same factors that her own doctor did several months later when he imposed those permanent severe restrictions on the time you can go into work and speaking to the other expert court delineation percent of her job was not physically demanding which if it ever was true it was only because dunham's provided temporary accommodation to him this time but his opinion as to concedes that she cannot frequently reach about the right shoulder which is an essential punching him back that he has not addressed at all this very important issue that she had a two lb lifting women and that this job does require lifting of up to forty pounds including overhead judge i would like to use my two minutes st of all with respect to constant reaching you've already heard from dunham's counsel that the testimony of the various people jeremy gilson mr c slack acknowledge that constant reaching was not required because constant was defined by done on the title as one hundred percent an obviously to do all the task and responsibilities that are listed in the job description that they rely upon you're not going to be engaging in reaching one hundred percent of the time which underscores the point that she could and did perform physical tasks the only dispute is about the amount of time that was required to perform the physical task and whether she could do that now opposing counsel is also pointed out an issue that they have with their opinion and that is there is an assumption without any evidence to support it that somehow ms time and had to be able to perform the tasks with her right shoulder well the the real work restrictions on her left shoulder indicate that she could and she did indeed use her left and shoulder to do the reaching tasks and the lifting tasks and she had a fifteen pound restriction and i've heard no evidence that or seen no evidence in the record that she couldn't do it with her left shoulder as to the issue of d you just have an entire disagreement on that he clearly stated in his opinion that he was and he made a distinction between his opinion as to her bill the to perform the essential functions based upon  the two different job descriptions the palm store manager in the store management job descriptions there's no indication in that report that he based his opinion upon what she told him as opposed to looking at