the next case is lincoln versus burlington northern santa fe railway company number seventeen dash three one two zero council you may proceed thank you your honor my name is david s train that came by and lead to substance caused them to become injured they were taken out of service they continued to work in their jobs after a short period they continued for about ten days off they came back and continue to go back to their jobs and work for about two and a half years after which time their lawyer sent a demand letter to the n s f making a alleging a feeler claim unicef removed them from service and when they did that  they were never allowed to come back to work again and then they started to apply for for jobs and i think i think we have the chronology and given the limited time i'd like to jump right in when they were  stated that she doubted the allegations now i'm just asking the medical evidence came in on behalf of mr lincoln and mr moss brokered in that say that they should be restricted to indoor work yes they  is the medical evidence restricting the plainest indoor work any indication that some outdoor work would be all right no it's a base and that the job that you're asking for accommodation let's take mr lincoln the carman and pike that are jobs involve some outdoor work so without the benefit of any additional medical evidence in the record to suggest that they can split time why should that be the basis for an accommodation that's the heart of the matter your honor that's what i'm asking but if the restriction strictly indoor work how do you get past that here's here's what the state of the record is thirty six testimony from the defendant that says that the shot jobs are about the up to ten percent work outside isn't that what we're talking about on those jobs that's right so how how do they qualify for those jobs if the medical report says they have to work indoors even if it's just ten percent ok so your honor if the court looks at this court's precedent under the hawkins case which is its course a hawkins for example the employer varies the burden of production to state what the essential functions of the job are and if the employer has said in this case the essential job functions of the shock jobs include working outside but they haven't given us any detail there and if you didn't give us anything more other than their own thirty six testimony there's no description about what it is exactly they need to do outside there's no description about how does a limited number of people to do this outside work there's  of these jobs which the employer has said that outdoor work is an essential function so wouldn't we don't we typically defer to the employer's job description and the employer's categori of essential job functions your honor the we do not have job scriptures we have job postings job posting and the job postings are different than job descriptions which are created prior regulations and the cock inspectors those hoc inspectors talk about what makes something an essential job component or essential job function and those things things are like the job exists to do that job these are shop jobs involve working  shop in that building and building twelve like there's a pipefitter job that means working in that building on railcars there's a there's a you know there's other jobs there shop jobs that have specific functions but what's with different about this  hawkins case for example there was a showing that there was a limited number of people that could drive a commercial truck and so by virtue of the fact that there was a limited number of people to drive that herschel truck the plaintiffs need to be able t the parties can't waste that i am not saying that they did it the question is whether the claims that the job claims after the february twelve twenty thirteen date are covered by the stipulation or not and my question is why can't the stipulation be read as not covering that period of time as not covering that period up and then we wouldn't have to talk about your issue if you looked at the stipulation appellant does a nice job briefing that but any event that was a question of contract construction with should be going to the district court in the first instance so that's why i think that we  limited on time so let me ask another question you want to hold that the exhaustion requirement is a condition precedent and not the jurisdictional requirement why isn't that something that are on by a court would have to do well first i believe that this court has already done that and that they didn't do it in a gathering that was a narrower issue than the issue we've got here dealt with a specific procedure the verification issue and not whether exhaustion as a whole so gabs not resolve the issue and we have a case after the our bucky's post supreme court decision in jobs where we said it is yours fictional so apart from the merits of your decided it was decided and it was decided after the supreme court case so even for sympathetic to your argument how can the three judge panel overturn another three judge panel but certainly supreme court case jones versus runyan they had looked at psi and they had said you know what our prior decisions are wrong and this is not jurisdictional then we'd be great but what it did was it looked and cited specifically to the intervening supreme court eight and then said yet we still think it is jurisdictional so's handle is really bound by jones runy eyes there was no issue of waiver it was all academic in this case it actually makes a difference and i again i would like to point out that incites the supreme court analyzed the exact same site is directly on point for the charge filing provision there is no way around it the court has already held that that is not jurisdictional because it is not in the jurisdictional provision because the provisions don't cross reference each other but we feel that that is it's important that we're correct and we urge you to do that and i see my time is up and i hope to say fine for a bubble let me ask you with indulgence of the panel one question on your second point which is that lincoln is required to type in twenty five to thirty five words per minute he typed twenty six words per minute and one of the reasons given thing was that he was very qualified is that good enough we're i mean literally he's got they've got a range of what you need i mean under your position at which they have to turn down everybody's a concise thirty five words for mitt and fine and give the position to mr lincoln twenty six words permanent yes and the reason for that is an employer set their own qualification standards they should know what their jobs until and if somebody meets the employer's very own qualifications and theirs they can do the job and given the policy of the a b a of keeping employee is disabled employees in the workforce that policy is so important and reassignment is listed specifically as a reasonable accommodation thank you thank you coun what the conditions were like in that building if he did during the winner there stands during the summer is that really outdoor work actually i don't agree on that with respect to whether it's outside or not isn't that a disputed issue though even on the view that only ten percent of the job is outside then why would the ten percent be an essential employer has met its burden with the with advancing the burden of production of what they what the employers judgement of this is since function is and there is no evidence that that is not an essential function for at least ten percent of the work but what about the declaration that mr hopkins mr hawkins who works in building seventeen not building twelve he says i'm aware of what goes on in that building and ninety percent of the work is performed accommodated in other words if you're spotting that the building twelve is indeed indoors and we're talking about forty eight minutes on an eight hour shift at the most if there's no break time why couldn't the employer simply as the one and the employe the mr lincoln says a number of employees who are cooked up inside that building would welcome the opportunity the outside little are so they just adjust the functions it's an entire the shop that shop itself isn't entirely a union shop the jobs that are that are in within that shop are subject to seniority bed and work within the building can't be divided up based on who can or can't work outdoors bargaining agreement says ninety percent and ten percent part of the collective bargaining agreement is what the bargaining agreement establishes a hierarchy of seniority and who who can bid on what jobs from god's fig place more there's more of the roof than what and less outdoors there are some that are more outdoor scenes are you saying he's done that an employee to accommodated and was willing to spend more than ten percent of the time outside so that mr lincoln could spend all his time inside if that's even necessary he says he can work an hour outside that that employee would have a grievance under the collective bargaining agreement i want to be sure i'm going to set the fan player who's now going to be worth more than ten percent labor if he was minimally well fire off five for those jobs how could he not be qualified for other buildings while job if he met the minimum qualifications to be considered for an interview for that position the fact that he can't work outdoors removes that qualification from all positions if you can work out the company meet the minimum for the minimum qualifications to be interviewed for the position if it and the undisputed evidence as the answer to that is no so they select that person for the boilermaker job and they elect an alternate for the boilermaker job before they know whether either of those people meet the minimum prosecutions for the job th because you don't ask the medical questions while you're in the pre employment pre offer stage words i want to be clear with respect to the only the only position for which mr lincoln was denied a position because he could work outdoors is a safety assistant position that no he's not a qualified individual these cuts he can't work outdoors so he knew because the lack of qualification precludes them from making a promise education the first place accounts i've been thinking about the exchange you had with judge philips seems to me that we've got let's say we have a job that's ten percent outdoors and up ten percent isn't all that much what about accommodating that somehow and your response as well that runs into union collective bargain issues i'm trying to essential function or is it something else i'm just trying to figure out where it fits in the analysis it's is it essential function and well it's a i don't believe it's an analysis that that i know it's not one that the district and there is no evidence that there that although there is no evidence that none of those shot jobs or that any of those shots did not truly require outdoor work in removing absence of function of being able to work outdoors on a productions that working outdoors is indeed in the employer's judgment and by written description an essential function and their best evidence is is mr hawkins affidavit which says ninety and their first request for accommodation crossed in the mail literally with a letter from the environmental health folks saying we we were out of options you can't work outdoors you don't have the balls to sions to hold a clerk job we're willing to pay you don't get some training and education to get education to get you to qualify for some other position please let us know if any condition any of these conditions change and it's understood you did that they never came back with anything saying anything that ever changed will is a news to you today that they said that they could work an hour an hour and fifteen minutes outside oh it's not like that my greeters learned that from from that from their requests for accommodation and discipline the december for requests for comment when you saw that you didn't write back and say well that's great we've got lots of jobs for you you just need to have your doctor sign the something they did so they lasted only environmental health letter which is if your condition changes if your medical condition changes let us know right so this send a letter to you now that says here's my doctor my doctor says an hour then you're going to say welcome no we're going to say we're going to go through the interactive process and then to see if that's a reasonable accommodation one job