rejection of the rule fifty motion of the end of trial or the jury's verdict at all mr jackson cannot do his job the best evidence of this is the medical record taken or provided january thirty first two thousand eleven after he had replied not once but twice and after the position of been passed over the first time and two weeks before it was finally hired for and febreze ever sixteen for two thousand level in that medical record it says mr jackson is quote currently unemployed as he is not able to perform his duties he otherwise has no obstructive symptoms other than the hernia which is why he went to the doctor that day and s of essentially without complaints other than not being able to work secondary to inability to pass a physical assessment now is pretty good evidence didn't his doctor release him to work partially it was a return to work as tolerated and in that medical record in which he was released which was august thirty first two thousand and ten the doctor said he was quite weak compared to his baseline and his strength will improve as the months go on so he was not able he was not a full release was the estimate requires definitely has no partial releases it is an all or nothing law in regards to reinstatement after you've taken your twelve weeks off because of a medical condition to hernia which is why he was at the doctor's office that january the hernia had begun while he's in the hospital for pain for  january seventh of two thousand and eleven he had a referral for hernia that was just five days before the city posted the job a second time i remember he has a lifting requirement which he said he cannot do it's just i cannot do the lifting requirements of the job the hernia i suppose is the reason for the hernia referral with the surgery scheduled for february i thought there was some evidence that he could do it with the with the forklift in hand lived in other people helping him that sort of thing that's not the caviar he provided depositions ordered and the depositions was put forth in a trial that is no caviar he said i cannot do the lifting you're right he did talk about a forklift in relation to the forklift however he was on  day at trial i asked him do you think it would be safe to operate a forklift under that kind of medication well i'm not sure his way told me or i don't know i don't know if we can even are he didn't even at trial say that he could operate the forklift under the medication that he testified he needed and still today well as the day the trial still took but the doctor released him to work knowing that he was on those drugs right presumably as tolerated and there's no evidence that the doctor knew what he did for a living at all mr jackson ever testified that he told the doctor that i'm going to have to operate operate a forklift that i'm going to have to wailed and i'm going to have to use a plasma cutter and i'm going to have to use a lathe that will cut through four inches of steel he never said that he told the doctor any of that in fact more to the point when he told the city about his quote release to work he never said it was a tolerated he never mentioned the hernia he never mentioned he was on medication he never mentioned the neuropathy and never mentioned any of it interesting point about the hernia the date of the surgery scheduled for was february sixteenth of two thousand and eleven the day the interviews were hailed for his over position now to the to the welding machine he operates a pretty heavy duty equipment and i know mr mr jackson argue that there's no way you can get hurt by mr operating a welding machine or a les for a plasma cutter i think that's beyond the realm of  well i'm not sure even he can articulate that he can do the job on this kind of medication that he was still taking at the time of the trial final point and i know mr jackson will say that this is biased testimony but the city has an obligation to protect its employees not just mr jackson but other employees and when you asked his boss who is granite is the want to accuse of retaliation whether he would have allowed mr jackson or any employee to operate this machinery do any city when you asked mr faucheux day whether or not mr jackson can do the job on this type of medication he said well i would have let him so the fact is mr jackson cannot perform the duties have his job and the and judge judge that was that that was the air it should have been extended it just dawson has made a ruling that he cannot perform his duties if an element of the second claim is that he can perform his duties and the second plane necessarily fails even assuming the mr one of them mr jackson has claimed that because he said at trial that when he was asked point blank could you do your job october two thousand and ten could you do your job january two thousand and eleven he said yes that's the extent of the evidence and some evidence that he was able to two days before the trial that's the evidence that he could do a job that's not enough in light of doctors records as this court has noted in randal's as i've said in the brief a plain this claim that he can do is job does not rebut medical evidence that he cannot and even if even if we setting aside medical evidence he admitted to me to the jury they didn't know if he could do his job he admitted to maybe admitted the jury i cannot do the lifting requirements without caviar now assuming however that he could do the job they have to prove a causal connection between determination or let's go back to that yes because i think they argue that qualification is not an element of retaliation claim but what's your response to that that has obviously w that we're tally action has those three elements that mr jackson asserts that they do the second one is adverse employment action but they say how can you have an adverse employment action if the person wasn't even hireable and that's the way they analyze this kind of case  that's the way i think that it should be analyzed this is a retaliation case no doubt about it mr guillemot trial admitted it's a failure to hire case and the failure to hire elements clearly have an ability to do your job it meant so it cuts against the dovetail with the a b a the a b a is a qualification elevated now the f mily doesn't have the exact same qualification element as the a b a does but it does have the element that the only way you're entitle to reinstate next is that you are able to do your job on the end of the twelve weeks now so to me what mr jackson is asserting is that well granted i wasn't entitled to reinstatement when my twelve weeks ended but i was entitle to reinstatement three months later but the fact that i couldn't do my job at the day that i w twelve weeks and it matters for reinstatement but it doesn't matter for probably the higher to me that's a logical definitely requires you to be able to do your job it protects you why you're not able to do your job the  case this court said you have to be able to just say you can do your job that's retaliation case that is a failure to hire case now even assume that he had established the  using leave to get disability that sort of thing and he others found him to be the most qualified guy i guess we just go to the reason why mr merriman didn't want to hire you got a member when he when he was quite released to work with mr jackson came back to randy davis's friend his colleague for ten years he didn't tell mr met mr davis that he had any limitations or taken the toxic out on but mr davis and another individual went to mr maimings office to try to get what mr jackson's job back well mr merriman being the rules guy that he is it is he's been charged with changing the culture change the good old boy system of the city of this department said you know we can't just hire somebody back we have to go through the procedures well that don't that was allowed to happen but it wasn't happen didn't happen the way mr merriman decided that it should have happened there that the two people that went in to ask for mr jackson's job back the first time were two of the same people interviewed so to mr merriman this smelled the smell was no rotten a little bit with the other people given a fair shot was the safety director involved in the meeting now it just didn't smell right to him but that goes that that was the story he heard so there's no evidence that mr that mr merriman lot about it there's no evidence that mr mr merriman hit anything there's no evidence that retaliation was the actual point of all this the disability claim  the word disability dealt with whether or not mr jackson was milling or what whether he was in a lingering eye is the way i took it now mr merriman denies ever saying it but even giving it its worst context it was only only a question of why mr jackson is on is taking this much leave and mr merriman thought it was because he wanted to eventually get disability it's a fairly common thing i hear from time to time i'm very close to my time but  the one thing that cause a connection before i'm really here richard versus richardson versus was a very important case for my practice says that even if you have a bad act and that case it was the athletic director for the university of arkansas using the n word in reference to black people and then there's this whole thing about whether or not he intended it for no rigorous in the basketball coach and judge wilson the circuit agreed that that is some evidence of discrimination but then  of discrimination the fact that we gave him the thirty more days of leave and we did have to after is definitely a leave after we made allegedly made that comment the fact that we allowed him to get two hundred forty more hours of time when we did have to case yes sir if i use ific lee says qualification is not required i mean it seems very counterintuitive to me but says it lists the three elements of a promise case for failure to hire a qualification is not in them it did not specifically exclu now also say reverse that doesn't make sense that you have to be qualified for the job before there's a reasonable discriminatory inference well i think there is an argument to be made for that certainly now having said that there's four circuit courts of appeal that say that it is not an element of her television calling that's the third circuit across the sixth circuit in baker the tenth circuit insulin k and one sided by the defendant was is talk about otherwise qualified persons in the discrimination portions of the statute but then when you're looking at the retaliation portions of the statute that language is excluded you know quite frankly a lot of people get hired for jobs that they are not qualified to do there's no reason that a rule should be i'm applied more strictly to people who have engaged in protected activities the and you really i think once again that is something that occurs on a regular basis in fact it occurred in this case because in this case my client was passed over and keep in mind they're claiming that they didn't know anything about him being unable to do the job until litigation proceed in this case but in this case they hired my client was the unanimous recommendation of the first hiring committee then he didn't get the job posted again three months later my caught who had been first among sixteen didn't even get an interview who did they interview they interviewed people who did not know how to operate the machines that were in that shop they hired somebody who did not know how to operate machines that were in that shop they allegedly did this on the basis of well this guy has computer skills but the fact is that computer skills were not listed on the job description as something that's necessary for that position the fact is that they had no plans whatsoever to put computers in that shop the fact is that they did not put computers in that shop the fact is is that man did not go in and perform that job and only last a few months he didn't even last as long as six months so let's go back to whether qualification is required for me with the  mean that you acted as a witness in a proceeding or told somebody hey go take it from the lightly in which case the regulations that are in to sixteen regarding reinstate rehire situation would not apply to you and the other the reason for that is that in in the case but under two sixteen if the employer does not reinstate somebody they face a really onerous part if you don't reinstate somebody on their return from medically the employer has to prove that they brought this person didn't bring this person back for reasons not related to their from the way the bard approved literally falls upon them and so there is good reason in a reinstatement point to require that for a second that qualification is required which i think is the way this case was instructed right yes or yes or it was if it is required can can your client show that he was qualified since he was yes or yes my class testimony which it went in without objection was that he did think that he could do operate the machines under the influence of the medications his testimony was the question the bottle probably says drowsiness and can operate heavy machinery or operate a motor vehicle right answer i believe it says do not operate machinery or quit until you know how your body reacts to the medicine questions so can you operate all these machinery these pieces of machinery on four oxycontin a day yeah i think i could so that testimony when i am without objection the jury's entitled to rely on if they want to do object based on a medical conclusion or something like that they could have done so they did not fact it was his own question it was not my question now the other thing is that if you look at the medical records it doesn't say that he was taking  were you know have you developed a tolerance one thing the medical records reflect is that he had gone down from ten milligrams of oxycontin in may and he had been on him since january to five milligrams when he was taking it in you know october so he had gone down in his dose the other issue is that this stuff was really not as dangerous as their contin this is one area that for instance this welding table that they talk about in the welding machine i mean you know we can cut through steel it sounds like it be really dangerous the reason it's not is that pieces of metal are put over there on that table but mark why he's not at the table standing over welding it's a program machine well it's on its own he's just pressing buttons he's not standing at the tank you know when when they have these aides for instance that that are grinding down metal he's pressing buttons he's not standing there holding something or a weight going up thousands revolutions per minute because he could not possibly do that no matter how healthy was so the thing about these machines is that he's not putting his hands in he's not i mean he is literally standing at a foot pedal six feet away from these machines when they're operating so the reality is is that they're not nearly as dangerous unless you're suicidal and willing to throw yourself on the table as has been portrayed you know if you look at my client's testimony he stood up and described how those machine or for twenty pages of testimony in front of the board about that in front of the jury and they had the opportunity to see how  machines work where things were and and understand that you know this really isn't nearly as dangerous as they've been attempting to trade meanwhile testimony from them the testimony from them about about how this machine gentleman about these things when he tried to quite get up and claim they were dangerous and he had to admit that yeah you wouldn't throw yourself over on the tape he had to admit that yeah i don't know what parts of those machines are mr merriman doesn't operate the machines he's also demonstrated a bias against my client so i think it is clear that my client could do that job report about this plasma cutter or how close would your client come to that physically the plasma cutter he would but you know my clients testified that he was doing welding that they actually brought him in and operate these machinery while he was only so he did do that while he was on leave when they were in the need and he also continued to wel after after losing his job so he's he's done these sorts of things and then he well that was interesting because he doesn't he's not using an arc welder with holding iran his hand welding mark i did on the farm now that's what he's not now at the shop that is not what he's doing at the shop it's used using large machines there set up but when he was welding on his own time after he lost his job he was just welding on the farm using healing i thought right you may not think it's a good idea the issue of in ted as well  there's let's start with time now timing is not a necessary element of proving intent in a case it is an element that you can attempt to prove in a case and the fact is that these a yes man and you know another issue is that you know my client has made out you know macdonald it was versus great the issue is did they keep the position open and continue looking in the answer is yes they did in torgersen when you're getting to a priest at a stage in your needing to offer a parent or you need to demonstrate that you're clearly more qualified forget the exact language but it's generally their reasonable jury would conclude that you are clearly more qualified something to that effect and the fact is my heart and operated every one of those machines for ten years he's was the unanimous choice of sixteen people for the first round of interviews the person heart once again did not have the ability to operate those machines had no track record with them and was hard supposedly based on something that's not description on the compensatory damages you say that akra allows for those and you should have gotten those you don't defend the acra doesn't support an f m l a claim you i think try to make it a disability claim in you say it goes but the case wasn't submitted as a disability yes sir it was yes sir it was and that's now not the jury instructions i looked at well it talked about medically and instruction number i find the lay claim right but it referenced back to instruction number ten and instruction number ten indicated talk about medical leave under the f m l a an ace in arkansas civil rights ok it is what it is but well your honor the theory of the arkansas civil rights act case was that and there's no question that leave can be a reasonable accommodation under the  believe can be a reasonable accommodation for a person with a disability and my client took that leap so you can pursue alternate theories where the same facts  that the arkansas civil rights act retaliation claim was dismissed the court specifically says eight the defendant says i understand that the arkansas civil rights act claim i'm not sure if it's still before the court responded it is instruction number ten on the elements or tally action figure higher stated your verdict must be for the plaintiff on the place retaliation claim under the family medical leave act and the arkansas civil rights act did so clearly what was contemplated here by the jury instructions by the poor on motions for jan he didn't say this court in chambers versus metro in an eighty a hard line in sort of the qualification element they clearly this far as the oxycodone hydrocodone and whether or not he was taking it versus being just prescribed it if you look at the joint appendix three sixty four and every page around that he was taking it he was getting refills actually refills more quickly than he was allowed and asked for special permission from the pharmacist and the doctor as far as him saying that he could do its job and o original brief that that was actually evidence that we didn't have a bad intent and actually evidence that cuts against retaliation i mean the jury came back with a good faith verdict the judge had it within his discretion to give it to a war liquidate