it was dealt with heavily in the three pretrial conferences on what were the essential functions and who had the burden of proof on a central function in during the trial the case the question of essential functions was primarily the topic that was addressed along with accommodations in the question of who had the burden of proof was also addressed in the pretrial conferences and one in fact in the early pretrial conference trial that had reversed in the court was saying at that point you know the plaintiff has to have the burden of establishing the essential functions so as we went into the trial this case the question of what were the essential functions the central office for musical functions that's why i have the time you should have to give your opening statement use the burden was on the point at that point we knew at that point we couldn't do much about it we tried through discovery to get something from the defendant that got on a lengthy and thorough trial that focused as you say on basically whether a paraplegic could do the job of head operator or whether it had operated really needed to be prepared  outside and when a flap that was a trial at testimony came in on both sides although the burden was on plaintiff's was a preponderance of evidence standard at which means the burden matters a whole lot one is if it's not final yet the mandate hasn't come down yet from vietnam there may be an at and number two that's a company wide standard it's not an individual life judgment company fact john sherman the terminal manager so you're not coming back there was no individual eyes assessment at all they went through this job with a sham of an interactive process some public company  is relying on and that was a thorough examination in the the of the various burdens of proof in different stages and the the key there is that there's only one party who really has and that's the employer the the individual who's trying to get this job back is trying to go to the things they tell me what you know i need to do mr cramer went back in multiple times that i want to come back and we're coming up with a very very easily that on the record you know we've the employer we think it's tough like this guy there really is no need for head operator you have to run outside and run off a ladder and that the evidence was there jury could have bought it guy on the job that we should fire with that's the problem we had as a plaintiff had to go in there and defend against or not deal with accommodations for anything they wanted to say because they didn't have the  didn't sexy virtually everything and they used phrases like had operators had to and were required to and what they were doing was they were talking about all the things that had operators did whether it was well there was testimony that they claimed that the twelve hour shifts was something they needed to do there was also testimony that there was an easy way to deal with it that their concerns were and what was behind this at something you didn't or that was long replace them but on the other hand if it's all up to the jury to decide well do we really think it was necessary and they can make decisions without looking at the  nobody else is there he doesn't go running off paraplegic or not running or wheeling into a situation where he's going to find he's going to be the casualties and be dead when they get there he's got to wait until somebody gets there to take some action is just plain idiotic and unsafe and not consistent with the company's own procedures put that individual able bodied or not in those situations so and then run out and help them to help ease the  command he calls people and he calls notifies the agency he may go out there somebody calls me in for an emergency at two in the morning and probably i'm not there one got to be a little bit right and if he's the only person and during the trial we showed the kind of wheelchair that was designed specifically for rough terrain and you know he was he was as people probably more so had he been permitted back in the job in getting out of certain shotgun they said this is what people did without accommodation in the routine that they want to use and we had all these things that we had to kind of try that we don't know with the jury then because we didn't have the essential function reschedule during the day my client needed a transitional period where he go back and the talker testified that this was going to be a rapid transition i believe it was about a month where he needed to get in a routine so that he could then go into a rotating schedule and that he could then go into a locating schedule so that you know they are going to course was that's a reasonable accommodation to let him get into the schedule and then go into voting schedule like everybody else  reserve the remainder of actually i'm going to point a couple other things if i might before i do that there are other issues that we've raised in this appeal and they all really go back to this particular same thing here the  refusing to instruct an interactive process that really goes hand in hand on the what are the essential functions we recognize it's not an individual claim there's no liability for failing to engage in the interactive process in this case it was the evidence pretty clear that we a complete sham they had the gender ready to go at the end of which is that we can't help you but the problem was there add that to the inability for them to come up with what are essential functions and the jury should have been allowed to see but it was there were very similar areas where as well and i will reserve untrue there was there was a a tremendous amount of evidence at trial as to what the essential functions were always outlined that in everything there was the job description there was testimony from the from the supervisor of the of the of the  to understand is that the business assessing the defense does not arise in this context if you look at the statute you know there's there's there is a subsection five which describes the type of discrimination which was alleged here where an individual was assessed by the employer and was not able to meet the essential functions of the job as section by section six is the one that just kleinfeld was talking about which says we have a qualification standards and overall qualification standards and if you don't meet a certain task you need not apply we're not going to bother assessing you individually which is convened by caught him by the courts to be much more extreme ok now if you look at the language of subsection six it our well rules but we can't make weak i think we can your honor because one thing that's fundamental under the ada a is that the employer is not required to change the requirements of the job now in order to show why this miss this paraplegic should not be alone in this in this huge petroleum facility with fifty thousand and fifty million gallons of the troll him you know we need to explain to the jury which we did why we originally established this didn't have to what was necessary is not is it not is it of no not as a defense but we did have to explain it in the context of i was showing the jury why it was that that they had operators were alone during certain periods of time some similarities between what we've proven a section five case and and and the business assessment defense but i think it's very important understand bates you know and recognize that that's an entirely separate event  and remember we well when we are outlining what the provisions of the job are ok we don't have to show that every single provision of every single job or or requirement of every single job is absolutely required and there's no conceivable way to do it otherwise that would require the employer change to position or as a fireman so the job in order to accommodate in and that would be a reasonable accommodation it seems to me and you'd have to then there would be an argument to be made to the jury that that is not an essential function of job counsel i want to make sure i understand the difference between five and six screen out an individual with a disability is has to be shown to be job related and also consists of assessing because you're arguing that because you didn't use a qualification standard your employment test section five is not making reasonable accommodations as to the physical limitations of another otherwise qualified individual disability questions about i'm sorry how to allow performance of i guess one accommodation is this guy should never do graveyard shift he should only do a time and a shift and swing shift so there are other people that was that was the argument basically i understand the argument boils down to the plaintiffs argument was base doesn't have anything to do with this case except it's kind of helps explain the differences between a subsection five discrimination case which this is and a subsection six discrimination case individual with a disability six talks about using qualifications standards employment tests or other selection criteria that screen out or tend to screen out an individual with a disability so the court was able to say therefore under these circumstances the plaintiffs is not need to be meet it's her does not have the burden necessarily to prove qualified individual with a disability or what the i'm sorry what the qualifications of the job are now you go back you look at five and five it is is is different in that crucial respect five talks about both a and b talk about qualified individuals with disabilities so and i just want the say first of all it notes that u p s pointed out that many of our cases as days in general terms that eighty eight plaintiffs bear the burden of establishing that there are qualified individuals with disabilities listing a huge number of scale large number of cases many of which we cited are very and that says these cases however have for the most part been concerned arse no have been given have for the most part not concerned categorical qualification standard under section twelve eleven to the six and only getting back to five who has the burden of proving accommodation and you are jim i believe the defendant would have the burden but you first have to prove obviously the important point here is that before you ever get to five you have to prove that they are a qualified individual with a disability and they qualify because the statute that general statute says that you cannot discriminate against a qualified individual with a disability and then you go to the definition of qualified individual with a disability and that's where you get this the person with a disability who without apply today pertains to cases testing whether an employer may use a particular qualification standard not to cases testing whether employer may hire a particular individual the usual statutory standards apply when an employer does not apply a categorical exclusion that precludes disabled persons from ever painting an individualized determination now there's one thing that the there's an interesting footnote here that could be confused if i'm not mistaken where the court did in fact in fact decide that in a section five case the employer had the burden of proving what the essential functions are but it's interesting to understand i think the base case helps us understand where monet went and they say that it's very similar to this case but in fact monae was a subsection five in a direct discrimination case and what they did in monet though the reason the court found this very like the you know this court used the analysis from one day in monet they just said well you know the burden should be on the on the employer under subsection six so therefore if so facto it should be and that should be on the employe subsection five and i think bates is therefore helpful in because it warns this court that it should not make the same mistake that the monet court made that is to say it made it very clear says that the subsection six qualifications standard is a stand alone provision and it's first the specific statutory reasons and look at the legislative history of six the burden is appropriately i'm looking at excerpts page one twelve and i think that's where i'm supposed to look for the jury instructions and i'm focusing on section five could you tell me where the jury was told the employers burden to show that whatever accommodation you know unreasonable  yes as long as they were accepting the job yeah i guess fear question would be whether or not giving them a few or an extra employee is going beyond a reasonable accommodation and i think your question was t know you don't know what am i looking in the right place functions so you're the focus and one of the reason i skewed myself for not knowing about these other into the other structure is that your focus here is on that for ponderously others instruction on whether that's harmless error and they have a challenge to any of the other and then suppose the jury thought after they read that instruction as a plaintiff had proved that he could perform the essential functions with a reasonable accommodation but not without one and who has the burden of proof on what's reasonable as to accommodation or talking about that particular instruction in the s t r and five take a moment made by the plaintiff to the social security administration in which he outlines the essential function for the job is being identical virtually identical to what we suggested where the essential functions terminal operator terminal operator did on an able bodied basis without any kind of accommodation that's what the question asked and that's what the answer is mr bremer testified that he did he work a lot of overtime outside of normal had a job as a terminal operator and so those are that's the answer there the idea of essential functions if the employer does not have the burden the idea of essential functions just plain goes away because all they have to do as they this case is say this is what this person quote has to do or this is what this person does and what they did in this case and a video of an individual doing all the most difficult path walking up the steps  to the test the tank and that's all they have to do if they don't have that burden all they have to do is say he did this he did that he did this and those therefore ok plain if you have to show that you can do function so our expert was was prevented because as a practical matter we didn't have access to the information that would would be able to show what the essential functions work  said that we were looking at mr green with looking to create a new different job and he wasn't at the trial so i can understand how he got to this but that was never argue mr cramer argued that he could go in the control room as he had done before as able bod through and looked at the practical aspect is just impossible for a plate of a few billion without the information without the ability to do the testing and come to the jury and say these are the essential functions by my secretaries and more about their job what the actual functions to do are and i get somebody with an employee very frequently knows much more about the details of the job and anyone and i company office why is it hard  because what we're dealing with a trial is the shutdown of this is all the things that they did in flayers in possession of all the information about who has who has had the other or the necessity to not do these things where the records are to the show that employees what they actually did say look i know what the manual says but that's not the way things work around here for the last twenty years here's what i do want to day to day basis this is what we've always been expected to do sure all the employer has to do is say here are the essential functions here's my witnesses to running the docks now that's his response as to what i did all day what i did all day is not one of the central functions and how can they be done with accommodation that question just doesn't address those questions which are the issues here in this  case he talked about what i did sure i did all these things in fact because i was working overtime of the terminal operator that that's what it is it's like the down to it's lethal by doing that he that if but then all these other you know just everything that he was doing because that's what the question asked not what