accommodation has been made easily by the city and this is a direct evidence case which means the money that paradigm applies and there are several undisputed facts in this case interviewers disable the second is that if they were requested reasonable accommodation specifically to one that he be allowed to serve as a firefighter doing that the employee has to request accommodation at that point we sit down with the employer in the ploy or has then determine whether there's going to hardship and determine whether it's essential function has an accommodation however it goes to good faith and then you get into the case of names versus good you really talk about good faith certainly goes a long way to good faith that the employer comes back and says you know here's some other combinations we can do for nothing for you you're gone the key the fact that you were requested a reasonable accommodation and the fact that the city of stuff did not engage in the interactive process that's a liability and that's the cardenas made case again just like you would know that and it reduced to a formula it's reasonable accommodation plus there to engage equals liability driving lights and sirens doctor saying was this girl i was is up a logical search relation to go back to work without restriction dr henderson the first city doctor who actually did examining  where you made a lengthy the discussion about the employer was relying on opinions of doctors you never examined and really the point you made was how could you reliance look credibility and it was a treating physician versus and you said very much it's a very much individual ice assessed has to be done and it can't be done on subjective belief just because the employer subjectively believes that he can perform again today in good faith think that without the individualized referring to the national fire prevention association guidelines while we're talking about the guidelines and there is a genuine material issue back as to whether they adopt and there's a ton of evidence of the record that they did the fact is whether the city is still a the reality of how they can't do anything with him and i remember sitting at one of those hearings with him because i was retained relatively early in this and we asked him point blank what essential functions are you saying that mr or can't perform and there  tradition hearing for a coworker and seemingly the problem with that would be that that wouldn't be protected activity it would be in the clarified that certainly his seeking the eighty accommodation would be protected activity and that would certainly qualify and that determination was after that secularly seeks the accommodation and he doesn't get it so the retaliation is  we pleaded with the facts we had it time and we weren't sure how it was going to shake out but the retaliation claim to us was seeking the accommodation not being where they would do this whole charade of not really do anything for raiding evidence not going through the examination that an arbitration was not a tribunal that's was the basis that it said the case was dismissed i submit that any arbitration relating to a public employees in terms terminations of one is certainly a tribunal for purposes of one thousand nine hundred three because it actually stands in loco of a court proceeding this is an employee who has a property right in their employ and therefore whether there's a collective bargaining agreement or not he still has that same protected property interest in his employ and if there was no such divine agreement he can proceed strictly under due process or some other constitutional violation he has that property  are several reasons why the arbitration is considered all the evidence all witnesses are sworn in tony works when they have subpoena power in fact we filed yesterday supplement to the record where the arbitration decision that just came out opinion the arbitrator makes special note that the city of stone failed to provide any kind of due process because they had just called or call or had these collateral issues argument the district court reached the correct result in granting some judgment here and this case is somewhat unique in the sense that the plaintiff here is not saying that he can do an essential function that is driving an emergency vehicle w billeted to perform the job description or what or what way a person would be disabled from doing that it would appear to me you really didn't have any on and the whole thing just a rumor i don't believe so because i think i believe that the guidelines do apply under the record but even if they don't i think it doesn't disagree with that is the overall point but i guess that was something that made on model of the record event is the job description i mean there couldn't be a more unequivocal determination that operating a but if there's you do see the matter and it's material it's not appropriate for summary judgment is that straight and under the circumstances of this case you believe as a matter of law operating an emergency vehicle with conclude my reading of the record is that he determined that under the n f p a which designates driving an emergency vehicle as an essential function which is absolutely in line with the history of the city every year had to be trained in recertified and driving emergency vehicles i mean i think that the circumstances it's unequivocal that this is an essential function and this is an essential function in this is basically on this designation by the city and its god the scripture expressed belief that this is an essential function that that's not performing this act would be something that is very outside i mean getting to the scene quickly is essential to what firefighters do in time as a guest sense with these types of cases and the fact that the city has to have driver training and recertification every year every firefighter that but that demonstrates also that it is an essential function so under the hood how many of the circumstances going through that good morning to please the court my name is scott harvey and i represent the codefendant of the city of stowe william kaba who in the city of those fires chief i am going to address the only claim that exist right the first thing i want to do is address through briefly something that i raised i raised in the corporate world and that we raised in the briefing and that is she calls qualified immunity to claim i do not believe that mr and i will say the court of the gaffer's case which is the southern district of ohio of course court case court decision the facts are nearly identical and the court there granted qualified immunity to the individual purposes of the qualified immunity analysis here as i indicated previously however the court of incline to address the merits of the first amendment claim and in terms of whether mr war mr or each was relate to a matter of public concern who was there in amherst employment action three was there retaliatory and in this and the second the third are not at issue here they were not addressed below the court did not rule on those the court granted she call it a motion to dismiss on the first element only as mr thompson indicated that the critical component of public concern free speech analysis are three fold we have to look at the content of the speech we have to look at and form and we have to look at it to contact contacts in mr roars reply brief he criticized his chief called all for relying on for analyzing and relying on the content element i believe what what he's arguing there is that content is really irrelevant here and what dispositive for the other factors and i will submit that that's not the case at least not and i quoted it at length in our brief i quoted the entirety of the alleged speech and it's it's from the arbitration the labor of attrition hearing that mr townson also referred to and what mr rohr is have to find through there is his version of what he witnessed with regard to two workers in a shouting match and i we will submit that that big big just looking at the content of the speech that is not protected speech because all he's doing is testifying about an internal employment dispute involving two coworker there's mr thompson seems to also indicate that  that whenever somebody makes a good sworn testimony in any type of survey you know whether it's in a court order a labor of attrition proceeding it's per se protected speech and you don't have to look at content and you don't have to look at form all you have to given by a employee in a private labor arbitration is per se protected speech irrespective of its kind and its form i don't believe that log this and i don't believe that the appellant has s factor one of seven and identify several others it is not dispositive it is a fact it is not a v a fact you have to look at a whole bunch of other stuff and one of the most important things is how is the practice actually done in the cities and the reality is in the city is the fire department you don't have to drive because when you drive the apparatus is determined by the crew at the beginning of the ship and there were several affidavits most of which were disregarded by the trial court and that's really why we asked this quarter versus at this case be reassigned because we do not think we can get a fair hearing from this judge and we say that know what he said was if this quarter versus i'm going to strike these anyway right what those affidavits that's what he says so we obviously have a concern won't let them testify because in his order what he said was absent extraordinary circumstances nobody else can be allowed to testify except these by witnesses that you identify and two witnesses that we identify we objected to sort of person to the witnesses we don't think it's relevant i think it i think it has to do he says he's doing his ascension that's what he's doing what he said his order came down in january fourth and this is it's in other words his he had a preliminary discovery cut off we were required to to engage in an active process so the judge is not entitled to make that determination it's what he did that's separate from what you thought about a judge saying it's excessive to have these ideas these the context was your orders for duty and that was the context which the content was that makes it a great public concern that's the context i would go back and say thank you very