good morning accompany anthony collins appeals from a district court order granting summary judgment for abbott laboratories on his minnesota human rights act to accommodate claim there are four main reasons why this order should be reversed seventy this means as a matter of law that mr collins has a record of disability under the two thousand and eight amendments to the eighty employees with a record of disability you are entitled to reasonable accommodation even if they are no longer substantially limited regarding his disability status or whether use of a manual college track was an essential function of its job claiming that it could not locate that evidence and the record but the evidence was there and by ignoring it what there purposely or inadvertently the district court wasn't disabled after january  activity were entitled to accommodation and that were all argument i responded and stated that they were under the law and so since mr collins and the court and opposing counsel agree that he was actually limited for that period of time facto has a record of disability and therefore is legally entitled to accommodation and the reason that it was not more fully fleshed out in summary judgment written submissions is because that argument was raised for the st time only and the summary judgment reply breeze had mr collins been allowed to respond in writing to that that that could have been raised in writing and then more sufficiently fleshed out appellate court because that wasn't that opportunity was not allowed that's not it's not very fully developed in the record and for that reason alone must be reversed so the district court doesn't make rulings that aren't contemplated by either of the parties and thus would not be appealable which would be a strange result and then finally purely legal issues may be addressed on appeal whether rates below or not and this is a purely legal issue the issue of whether mr collins is entitled to a reasonable accommodation because he was substantially limited in a major life activity for a prohibited him from using the manual pallet jack she also testified that it was that he actually limited his ability to walk and stand and so he is substantially limited in major life activities to this day but more importantly regardless of what the court finds with respect to those issues the fact remains that it's understood that he has a record of disability and people with a record of disability are entitle to type of five accommodations that employees may be entitled to as they have a record of disability but that list begins with the words for example meaning that it is an illustrative it's not exhaustive list so it's not limited to those particular types of accommodations work left or the electric lifting device this is because there is a difference between the means by which someone accomplishes the essential function and the ends mean that in this case mr collins job was to move products around in a warehouse and one of the means by which he could accomplish that was the combination that you're saying should have been offered is what the electorate foreclosed yes are you also to that walk behind forklift which was electrically operated my client referred to it as an electric pallet jack but we concede that there was no such but that there were no electric power jacks at the facility so what my client was referring to was the electric that sort of thing but your response to that so there was portability in that this facility three of which had an electric pump behind forklift one of them did not move products at that but at that building it was for other purposes on it called the clean room issue with safety is not cannot be the case because they were continuously in use and so you know it was a safety risk it was certainly one that was disregarded every day by abbott and with respect to the battery being trained mr  accommodated and therefore could have performed the essentials functions of his job so truck drivers themselves would unload the products onto the celery floor and then from there the workers for abbott could come and move that product either with your left for west or the community and so bringing the products over after they'd been unloaded to the shelves could be accomplished by either and there is deposition testimony in the record that says that the court admitted that it did not consider claiming that it did not look at that in the record and so that alone is grounds for reversal evidence and took inferences in favor of abbott rather than mr collins again it can't be the case that there was a battery drainage issue or a safety issue when these devices were continuously in use at the facilit and human resources representative in this case who did not know at the time that there were these electric looking devices in the room in the buildings said that had she known not she would have concluded that  she could have been reasonably accommodated or possibly could have been reasonably accommodated and i believe that a jury would also be able to make that conclusion and so therefore since that is an inference that can reasonably be made it must be at all nd if you choose to entertain calling new theory of the case that he was entitled to an accommodation during the relevant time period because he had a prior record could still affirm because contrary to what counsel has told you under the minnesota human rights act only individuals who are actually disabled are entitled to reasonable  accommodations rd regardless of where you allow on the issues of disability or record of disability you can still affirm the trial court's decision because collins was not all of five during the relevant time period mission and its retirees and to use that and mission to show how collins had essentially shot himself in the foot and could no longer recover on his claims didn't didn't he also though testify that he fact for two primary reasons the st is that there is medical evidence in the record from his doctor so we've got medical records and fitness for duty certifications that show after his injury there was a long list of things he was prevented from doing he couldn't stand to prove more than a certain amount of time that restriction was lifted in november th so it was dr determined that that was done reason why his testimony doesn't create a genuine issue of material fact is because the testimony itself isn't that he couldn't perform those functions he merely testified that he had eighteen effect when he left or stood for more than thirty to forty minutes immediately thereafter he went on to clarify that he had one remaining restriction on his bodily movements and one restriction only and that was in no manual pallet jack usage so even if you credit that deposition testimony it doesn't create a genuine issue of material fact that testimony was also given after he left employment and says nothing about what his restrictions w under minnesota supreme court case bar a major life activity is he materially limited only when it is greatly impeded so based on his deposition testimony once again that the fact is not a great impediment to bali movement and there is no record now suddenly make a record of plaintiffs able to obtain an accommodation whether is still good law and we must apply it accordingly even if you accept her new theory of the case it doesn't entitle mr collins to any type of a pallets and electric lift is completely different it is it has like a manual pallet jack pretty much the only similarity to problems the problems go up and they go down and either side of the two prongs there are white bars for cover balance it's incredibly tall it's got a motor on the back it's electric battery powered it goes incredibly fast or has the ability to go incredibly fast and it's primary purpose is not to those things from point a to point b pallet jack was an essential function and the undisputed evidence supports that and determining in the central function this court is allowed to consider the employer's judgment the written job descriptions the amount of time spent performing the function consequences if the employee doesn't have to require to perform the function and work experiences of past and current employees in the same position based on all of those factors which we laid out in our briefing with citations to the record all support the fact that use of a manual pallet jack was an essential function the material handler position is an extremely physical position regardless of whether or not somebody a disability there are people who would not be able to do that job i mean for instance however the job description makes clear that it's extremely efficient physical it's a functional role that includes material handling and that requires that materials be able to be moved and provided to required areas in a timely manner it specifically states this margin isn't the essential function really just the ability to move the product doesn't really matter how it moved so i'll oppose it counsels make that argument it's actually a distinction without a difference in this case regardless of whether you look at it as the essential function being able to or palettes from point a to point b if the question becomes how he was going to be able to do that arguably a manual pallet check itself was an accommodation that was given to all the employees because nobody can lift up a rack of pallets and move them without some type of equipment pellets from point a to point b in the areas where there was a lot of foot traffic and where it would have been unsafe and dangerous to allow a piece of electrical equipment that is driving more mess and was incredibly fast to potentially put other couldn't even question point with his body there was no restriction on that it was simply our use of a manual pallet jack has presented no record evidence showing that a manual pallet jack wasn't an essential function he says that he's provided evidence right if you go and look at the actual testimony that he cited to hold it says the opposite of what he says and the district that is what the district court found she scoured the record and looked at every deposition piece of deposition testimony and even acknowledge that he was grossly mischaracterizing at for instance when he says there is no location or set of circumstances in which a manual pallet jack is required if you go to the testimony lector pallet jacks available at abbott's facility not electric cliffs we're talking about electric lifts they're two different pieces of equipment altogether asked her assume that an electric pallet jack was available wouldn't that have been a reasonable accommodation and after several minutes of quite back and forth on it mr rossi believe what was most ross said it could have ben but it was based on an incomplete hypothetical and it was about an entirely different piece of equipment so it's complete red herring to accommodation under the a t m and act but declined to apply that to mr collins claiming that he had not yet raised it again i also would say that we have clear disagreements regarding what the factual record says and so i think at this point all