good morning me please the court my name is john regan i represent mr molina the appellant plaintiff in this matter and i was also the attorney in the in the court below a couple of  r twenty nine c f r sixteen thirty point two which i think is been changed in the years since some of the wording has been changed but not the substance of what i quoted so i apologize for any inconvenience that let's  to one other preliminary thing last week this court panel of this court consisting of jacobs judge jacobs hall and droney came down with the case called fox versus cosco wholesale this pertains to the last issue i raised in my brief where it appears that they assume more than hold but still nevertheless assume that a disparate treatment claim or perhaps other i'll get directly to the merits than one of the things that strikes me about this case is that it seems to me that without the city digging its heels in we could have resolved all this with about a ten minute meeting and yet here we are with six years of litigation and now we're up on appeal i don't believe there are any serious issues of fact regarding whether or not the well the plaintiff is disabled or at least at the very least there are serious issues of fact about whether he's disabled there were two letters in use this isn't some adjustment correct correct there were two letters you don't believe they're in the souza's issues of fact well there are no serious issues of fact  really should have gone in our favor i mean we have two letters from we have a man that works at it what everyone agreed is very heavy manual labor and i do think one of the difficulties here is if we as a group we don't have that much experience with heavy manual labor but the fact is that heavy manual well i don't i myself have had a little but heavy manual labor is can be very debilitating over time and what the record indicates is that you have what do you have to say to dr peter trees letter of may the tenth two thousand and seventeen in which he stated his opinion that mr molina was not disabled well what he stated in that letter your honor was that before saying that that he stood by his previous two letters but that in his opinion mr molina was not disabled but disabled is a term of art within the a da and i have no way of knowing whether dr pear tree was familiar with that term of art when he made that when he wrote that letter what i do know is that i've been attempting to contact dr pear tree so that we could get a deposition from him but we have a record here just yesterday and your efforts to contact him don't have much to do with this record could we stick to the record well i think i think that what the record indicates and the what the letter says is that dr pear tree said that in his opinion that mr molina was not disabled but he also stood by his restrictions but he'll continue to have quote issues close quote with his shoulders and essentially asks for a new job for him and in the march two thousand and eleven let r he recommends that the man be transferred to a different department and says he will likely have some ongoing restrictions with lose and talks about weight issues now the only place he talks about disability is in the letter where he said he doesn't have any your honor i did what he what he wrote was two recommendations that his patient be given a new job that the patient apparently wanted to get which gives you a big problem because as i see it basically if those letters raise an issue of fact is there anything they  whether he could do the essential functions of his job with or without a reasonable accommodation what your honor first of all get the disability claim in d latter two thousand and seventeen it's not it doesn't there are all kinds of disability the doctor there's no evidence in the record that indicates the doctor has any expertise on whether you know i'm the difference between disabled under the workers compensation law doctor's letters say either in those specific words or in other words that this person is disabled or what what qualifies as disabled he says he recommends my recommendation is to be given a lighter  that your honor there's no dispute that this is a man who had bilateral rotator cuff surgeries to both shoulders where he injured himself in two thousand and eight he on his left shoulder he was out for more relying on the doctor's letter this is a textbook case of disability it's right out of the regulations right out right out of the toilet relations say and words are in substance that a person who has a bilateral rotator cuff surgery is disabled as a matter of law for life well if what the regulations say is that if that well first of all you have the amendments in two thousand and eight to the eighty eight were specifically directed at the in the toyota case had specifically a woman who injured herself on the job and couldn't do lift things over her head anymore and if you look at the deposition transcripts here one of the main claims of the plaintiff is that he can't do the recycling routes without excessive pain because he has had to rotator cuff surgeries he can't lift the boxes over his head which was not required for the traffic route so if you look at particularly the depositions of mr belknap your understand and maybe he could have been president of the city council to one that would have been less strenuous your honor i don't have it do you say answer my question it was part of the job to work the recycling route and it was part of the recycling route you were telling me that he had to lift heavy boxes over his head is that when it was not necessarily part of the job to work a recycling route they had different kinds of routes he function does a spare and they could have assigned him since they have twenty spares on any given day they could assigned him in such a way as to not have to do a recycling route or at least not the heaviest recycling not to not to mention identify a specific job that was  have allowed him to with a reasonable accommodation and perform the essential function of that job well your honor that's to answer that question please did he do that i don't think that's a fair question statute i don't get the you know i don't pass a law it's a congress that passes a law they're the ones that say that you have an interactive process that is supposed to the very purpose of it is to identify specific accommodations and identify specific disabilities so you know so that one of the problems with mcbride here is that is that is reflected in the questions i'm getting from the court which is if we don't have an interactive process we can identify a a serious point is the standard which the lower court used to to review this case i think this court and some of the other circuits are drifting towards an analysis of a mixed motive when we're  in this case we're looking at a case where there was not one submission of evidence which shows a discriminatory intent on the city of rochester the discipline issue started from the beginning and that was noted in judge on the lower court has been a very poor disciplinary record that's correct your honor and talk a little bit about that well as the lower court indicated the disciplinary issues started almost immediately upon his  picking up trash and picking up recycling since this time since the times we're talking about the recycling has taken on a bigger role in the city of rochester but at that time it was mostly picking up trash and also some recycling  honor the disciplinary record is clear it was all the way from the beginning to the end some serious charges some not so cheery serious charges and you can look at the record and you can also tell that there really is no  connection between any type of adverse employment action which we have here in the terminations and the disciplinary action and that's because the disciplinary action started at the beginning and continued to the end  so the commissioner sends a letter a final letter saying we're terminating you and then in that letter it's three or four pages he provides a lengthy list of disciplinary misconduct misconduct and failures correct myself there was no connection between the adverse employment action to a disability with that yes and that's my mistake your honor it was a fairly surpris misspoke the second point i wanted to make is in terms of the accommodation and the discussion that we just had regarding mcbride in this case the city was never one of the principals of reasonable accommodation is that the city has to be shown have that there is certainly in the record you can find a specific instance where there might have been some kind of innuendo that the plaintiff needed an accommodation or a couple of questions posed about whether or  employee or your client sort of assumed that he had some form of disability is a fair say regardless of the letter and so on from the doctor that they the course of conduct makes it appear that is soon he had some form of disability if if there were a reasonable accommodation they would try to accommodate him particularly if we're talking about trash collection and you've got double rotator cuff or whatever it is the surgery it's a very good point and i think the judge struggled with that too there's a there's a good chunk of time that we're talking about here we're talking about four to five years and during that time that the plaintiff did receive reasonable accommodations on various occasions he was put on a light duty assignment like duty assignment is it's basically you're taken off of the trash room and you're put into one of two positions and these are bargained for positions that are available city administration or the directors in this in this in the refuse division considered him gifts abled i think they had a history of him having problems but i can't say that they they recognized him necessarily  disabled it's the it's the plaintiff's burden right that's correct and certainly the burden as was it was not prove here we received no request for accommodation we received very scant medical information in the medical information we did receive did not say he was disabled it said he was able to do you the job with outreach director direction and i think if you're looking at that that's that's what the city had to go by but the course conduct of the city is inconsistent slightly based on what you just said with this representation these able to do the job well there were certain points your honor and that's that's the point that's the point that i find a little  what the lower court found was that there were two major things lacking one was that there was no submission by the plaintiffs or no rebuttal by the playing to the in any way discriminated against them or any of the adverse employment are sure that that gets past this issue of whether or not he's disabled you're right i would say clearly he was he had issues because he took workers comp and he was gone from the city of rochester for periods of a year two different times so there's no there's no doubting that at certain points he was not able to work but in terms of considering him disabled to time of his terminations or disabled at all no i don't think that the city considered disabled were reserve the rest of my time unless there's any other questions or thank you very much  you think on this question of whether he was capable of doing the job there is no issue but that he did the job steadily from two thousand and twelve until two thousand and thirteen until he was terminated wasn't terminated for not doing the job also the court scene may not have noticed that the district court found that the plaintiff was disabled for a period of time he just the bifurcated the trial judg bifurcated the period before january of two thousand and twelve and after two thousand and twelve and said that it appeared that there was at least an issue of fact that he was disabled before two thousand and twelve but not afterwards but even if that is true i don't understand how we don't have a failure to accommodate because the letter putting them on notice and also the district court pointed this out that the letter at least put them on notice that there was a need for an interactive process the letter of two thousand and eleven you're confusing me if we accept as i thought you were proposing for the sake of discussion that he was disabled in an early period and then not  the terminations comes at the end of the later period during which he was not disabled and therefore how it is there in eighty eight cases you are i did not mean to suggest that that i was simply addressing the point that there is that there seemed to be some doubt about whether he was disabled in that we had no evidence of his disability when in fact the district court found that for a period of time he was disabled now whether that disability continued into two thousand and thirteen is that you'd still have the failure to accommodate for the period for which he was disabled and if the district court pointed out there wasn't even a procedure at the city for making report or request for an accommodation so that the cases defined different aspects of of an eighty eight claim one of which is a failure to accommodate another which is of which is disparity of treatment another which is retaliation and but certainly the failure to accommodate when you have the district court finding that they didn't even have a procedure to make a request for an a comment and then complaining that there was no request made by you no i don't see how for the period from at least two