third case for argument this morning it is for trade against chicago transit authority mr smith thank you and may please the court basically there's two issues involved in this case one is there was a motion to dismiss some counts that were brought forth to the court and then the summary judgment basically there was a first the meant there was a first complaint filed back in two thousand and fourteen which had gone with racial discrimination and constructive discharge the c t a then had fourteenth the plaintiff moved to a man the complaint which was granted from that point and there was a count one in one thousand nine hundred one race discrimination national origin account two was a race discrimination three was a national origin discrimination hostile work environment count for the american disability act count five that read retaliation based on the american disability act six constructive discharge count seven thousand nine hundred eighty one retaliation count eight which the court then considered a was a constructive discharge count a b two the race discrimination was dismissed by the court count nine and ten were also dismissed basically within the response by the plaintiff's attorney that she had asked if the person right and also disregarded the potential you risk the violation so it would go that if this attorney believed that there was some weaknesses in the complaint to could be brought out at least there should have been an opportunity there was really only one amended complaint by court ruling so basically the next motion to dismiss brought out a lot of weaknesses within that complaint it seems logical that having viewed the motion to dismiss there certainly could be the things that a trial attorney might view as additional facts that could be pled which then i didn't see mr smith any real response to the district court's reasoning with respect to the hostile environment clearly we i think on this record we have to assume that offensive complaint was filed he had not been in that work environment for several years happy because he'd been on disability we've built the he had the correct realty but a lot of things showed in mindset like card off and murphy about there this interest in him based on his continuing being injured i mean there was even a bet by one of the supervisors that he would make the christmas i mean there's a mindset sometimes judge that and when that goes back several years correct yes that's correct so within the three hundred days he was mr arch in the environment that he has alleged had been hostile to him in the past because he had been out of it based on disability that the whole issue is the answer is not ok now ok thank you i also didn't see really address the district judges rationale on the this point in time as it is this court has ruled that if somebody cannot perform the essential functions of their jav they certainly should be given a vacant position through the interactive prizes and what we're saying is the interactive process was never really situated he said did you offer evidence of a beacon position for which mr archer was qualified no he didn't really have that the interactive process to do that he only had some e mails and maybe a thirty thirty minute conversation with miss with the employer that we have said time and again that the interactive process contemplated that a breakdown in the interactive process contemplated by the americans with disabilities act is not itself a violation it's the failure to accommodate that is the violation and approve of failure to accommodate by failure to provide to a transfer somebody to a vacant employment section and come up with potentially those kind of issues that he could identified i meet he did give them a request for an accommodation which was very broad and what he was able to there's an exemption to that that if he has a narcotic or he has a drug and it's prescribed by a doctor and a doctor has now given him a noticed that he can't drive so it seems to be based on their drive that they found out about that he couldn't drive but there was nothing in his restriction that said that he couldn't drive based on pharmaceuticals that he was prescribed i'd like to reserve the full time  by his doctor but under both state and federal regulations truck drivers are prohibited from using narcotics and in response to the justices question there is an exception for someone to be able to  drive under federal regulations but only if that individual's doctor certifies that even if that individual is using narcotics he can safely drive a commercial vehicle that did not occur in this case i see ever search that it occurred in this case the other reason why i say he was not a qualified individual with a disability is because even though he was in temporary medical disability leave for three years which was the maximum amount of time a lot under the collective bargaining agreement his doctor never approved him to return to work at any point in time well i see repeatedly admitted this during his deposition he unsuccessfully tried to change his testimony about that after that but they just are quite happily disallow that but even if r c were a qualified individual with a disability which he was not it was his burden as this court itself noted to identify of vacant and permanent position that he could perform and he did not do that relative to i ceased title seven claims those claims are also not successful because as this court noted all of them were time barred all the contact of which r c complains in dealing again with the issue of the narcotic drug which as indicated by counsel was a disqualifying feature for the plaintiff in this particular case he did have a right to go back to work with the light duty was also pointed out within their own request to admit that he was able to drive a motorized vehicle from twenty ten to twenty fifteen he aberrated a motorcycle he operated a three wheel all terrain vehicle which certainly has to be looked at as a bumpy ride that certainly is going to aggravate his injury if it states serious  so i mean at this point in time it seems like the exception it is not really been set aside by light counsel i believe that at this point in time if there's no showing that he couldn't despite being on narcotic pain medication and despite the regulations that generally say you can't do that i could only use the reverse of that judge that there's nothing showing by his just like his doctor that he couldn't drive