ok both counsel mr hanley and mr caudle can you hear me and see each other yes i can as well actually thank you very much judge we're ready to go for the next case ok thank decides this up and to the issue is a matter st impression and that's whether or not or how do we apply the burden shifts in the obligations to a title we eighty a barrier is a question is not an answer previously is begging borrowing and employment sifting urban context and i think it makes a lot of sense if it's done properly and here's what the definition the statutory definition of readily achievable is almost word for word i then circle to the statutory definition of one to hardship as found in the employment context i mean it's it's obviously expressly borrow from there and we have a long history with that kind of burden shifting and so i can see why the judges have all wrote that and tried to make it work in a barrier and i think there's a merit to that but i think it has to be done properly and let me explain the big difference the critical distinction between a barrier case and a reasonable  accommodation in an employment setting is that in the employment setting when a person of the disability goes to their ploy or they ask for reasonable accommodation they have this obligation to say i have a disability certain things are affecting me in my workplace i need you to do something for me i need a special accommodation to enable me to do my job and then that springs then the duty then comes the life where the employer must then engage in interactive good faith and help them work towards a solution that's not why should we go a different path or create a circuit split or our sister circuit courts here and then following to the framework that i think you are alternately advocating friendly achievable all on the bend when you have a historically significant building you know they can't make sense because of the nature of the information at hand there but isn't it true that most of the district courts in the th circuit have concluded that moleski only applies to historical buildings we're not dealing with a historical type of entity here are right you don't have to say anything about readily you know i don't believe so i think the stuff you said you don't and now if you if you were to have a because what else would you plead yeah that's the difficulty because the factors are the expense and the the resources of the of the financial institution the overall resources of the facilities involved the number of persons employed at the possibility the overall fall overall size of the business a business of the covered entit y the impact on the composition of the workforce none of these things will point to how in the beginning they would have to be dipping appropriate to have at least some burden on the part of the planet before the fed is required to spend all the money to make these analyses and hire the experts alike i don't think so and here's why they already have that obligation they already have the obligation to remove barriers at their facilities it's been on the books for thirty years they mean printing your you make some really good points about the kinds of factors that have to be weighed alternately and that that information is beyond the availability of plaintiffs going back to judge hellerstein point seems to me if we apply colorado across in a way so that  i just wonder if this is a function of degree about and throwing out the baby with i completely agree i position is that the planet does have these national burdens they have to establish constitutional in their stores and by talking about their disability and what they've encountered and how it highlighted this and this is what the main circuit actually cited in quoted and agreed with they said if a point the past come up with plans and cost estimates and diagrams and all these things it's going to be an incredible impediment to appoint a bit of a challenge these things and so we're just saying they shouldn't have to get involved in the readily achievable factors which are all heavily business oriented is their is their world what a plate of sugar have to do is identify their disability identify their encounter with a no condition explain what the condition is in order to fare notice under rule eight and then also identify whether they have standing to get those barriers removed in other words are likely to return or they have a continuing to terence or something that's the problem facing case how about how shifts completely well i don't think that that should be the case for two reasons st of all the number one factor is really a cost benefit factor and the crowd are the factors if you look at it if you look at the stats for definition it all has not talking about the of the burden of persuasion and iraq but something else that has the added to warrant the case being in court otherwise it becomes if it's used in not they present architectural barriers and then they make a decision we can or can't remove them so they've already done the analysis and they're complying with the law they bought and said yeah we understand we don't have a ramp but they're here's our reasons why they want to make that decision and s saying hey you don't have a ramp this is discriminatory the business should be in a position already to say here's our reasons why it's already on their plate so to speak in so far we're forcing a plaintive to go in and try to get drawings or  hire experts not even to be able to bring a case about having expert i thought from the beginning it just seems to me that it's fair to put this on the on the business who already have the obligation if you have knowledge you didn't do that here that's cost seems like there was a lot here that was missing and i guess i just want to make sure i mean what you're advocating and i understand in terms of the needs you know we're at motion for summary judgment and  it seems like if there is you know an application of colorado costs in just assume for make room open that they're not there is i guess i want to know how how you how you think you have present opening the entire way if the door pocket is wide enough the door itself just can't open those last few inches we think because of a metal pin that blocks of from opening so we have power expert i mean our investigator said it can open all the way it doesn't open up because of a metal operations that looks like somebody went in took a picture with the camera and then said you know this is this is an up and i guess that's for us to determine whether that is that you have raised a materialistic fact about that right i don't think they've met their burden they didn't produce any information about their finances didn't produce any information they said that widening it may require structural change which may add additional weight which may result in a safety violation they didn't there is no information and this was probably a supplemental declaration in summary judgment and and so the thing is that we know that this is there that this is there per just like and again the gen demonstrated there's no genuine issue of material about house of marshall the evidence of the burden of production persuasion in that setting so i can understand our motion with them on the course as your motion your cross motion wasn't sufficient but their motion to be granted they have the burden is a response that my primary thrust like it were to consider is that that colorado cross is borrowing an employment burden shifting context and while it makes sense for a plate of have additional burden to say this is what i want done it is not mix in the reason why is because businesses who are in employment setting they are operating for integrity they're not i would any standards no duty to rise until someone says hey i need you to change your model operation to accommodate me that's not to a barrier case they are the the problem in the and even if you look at the cases that address default judgments when one a defendant doesn't make any response from the point of goes into court he's essentially on the allegations in the there is some component in order to get a default judgment that incorporates the readily achievable aspect under the d n a and so again that  then go i think your honor again when i when i opened we noticed we noted that there were different gradations in in the in what courts have said about the initial  information about the cost benefit relationship and that is the want to string perhaps a more accommodating burden of production is that sound by the nd circuit w plaintiff would have to provide some plausible claim for the barrier removal and and have officially cost effective way to to do that and at that point the plans and the engineering that come up with some kind of a palliative we'll certainly turn the discovery thing you know and that's about as a pleasing stage that's really what you're talking about  road how much is a plaintiff have to do and surely it's something because there are a lot of idiosyncratic disabilities out there different needs and whatnot and i recognize that there are some building standards but and the ferry the perfect example of where there isn't one right so this kind of comes forward and says you have a problem and he couldn't use the restroom facility and his allegation is i only needed to take a pin out right and it's under pressure that doesn't satisfy his burden but when we get to the next  course then you have this that's a totally different question you have because done he's done very little here but but in the in the play devil's advocate the reason i think he's doing very little and he's only alleging what he thinks is this didn't just have to be showing here at the pleadings yes the pleading stage was really inadequate i don't think you get to the the burning shifting analysis until you get to an evidentiary aspect of the case so that putting the creating says it's a readily achievable accommodation that can be made and then it's incumbent upon the r t c conduct discovery and proceed either to summary judgment or trial ok so then you were saying when you get to the burden shifting then you need to have the proponent of the claim of a need for an accommodation to say  is what i need in order for me to be able to have the use and enjoyment in this particular case of the catalina expressed very including the bathroom which is preventing me from having my particular us enjoyment of the facility and here is what i suggest in this case they may say ok i'll remove i suggest removing the pen it's a relatively easy fix to do we don't see any problems the pen is removed now the declaration of the expert in this case doesn't even say that it doesn't say anything other then the door would open more if you removed the  plan and design and that would include an expert saying ok if you remove the pin the door will open more and it will not cause any other any other problems or need to do x and then then the burden would shift to the defendant in this case scaling express to say well not so because you do run into all these other safety factors or other reasons why  this cannot be a reasonable accommodation and is not readily achievable and put in evidence showing its burden of persuasion that that in fact the proposed plan is not readily achievable and so there you have a situation that the plaintiff says here's the problem here's my suggested fix it with a comedy me and then and that would satisfy the  burden of production and otherwise you would get into a situation where priss the point of just says there's a problem here fix it and see killing expressen comes back and says ok well we'll try to fix the door by moving the handle now it's not really a readily achievable methodology because it runs into all sorts of safety issues given the fact that the boat moves you know that there's a lot of passengers there's different types of injuries associated with it but this is what we're suggesting be done and then when it does that this is oh no you don't need to move the handle indeed to move the pen and then we get back to exactly where we are now which is the the plaintiff has made a suggested accommodation for which the defense then has to respond and show why under its burden of persuasion that would not work what was it that you have to  that door you run into safety issues which is what our expert said and then if you start making you know why there are more global changes to the door itself then you run more that have to be some structural changes and where you have structural changes in a boat all kinds of dynamics welcome that that would be just too complicated to deal with and you don't want to endanger the boat and that's where case and you want correct and also and we should report and we should refer absolutely and in your own or the other point about the pen is that the pay and there's no time to the excessive bathroom door in fact there's evidence undisputed evidence that shows that the pin is not associated with the accessible door but something else that was not then a cane and tie to the accessible door by the investigator rather if you look at the pictures excessive mode or the paint to the bathroom in that location is red and it's clear that the door with the by handicapped individuals those wheelchairs would have fit through that particular door to clean up in this case did not do not request the use of the the other  methodology in and also indicated that if the individual employees of kelly's express we're going to try to help him get onto the toilet that that would have been an acceptable  accommodation because of his his weight and prior experience was going to make him more yes thank you just quickly counsel i think i genuinely appreciate that you recognize that there's this and cross and the th circuit i'm sorry the th circuit may be kind of in between i'd have to kind of do a deep dive into the eight circuit district court cases to see how they actually apply and what i think the effective manner all the case all the department of justice everything does there's no ceiling and it all depends on the financial resources of the business in other words a moment only do so much if we're talking about microsoft the vis that microsoft facilities or their store they can do a heck standards you don't have to worry about what anyone else says if someone has a super wild bill just sorry they're out of luck that this is the objective standard finally last point you can just affirm even if you did get a right because remember they say they have these other wheelchairs the factual records