summary judgment and then he dismissed the complaint that was that taken notice by you as to whether this is something they can be done and whether or reconsideration filed by the defendant chubs joyner at the district court granted summary judgment on on the three eighty eight counts disability case end on one part of the f m l a case initially people in the district court then scheduled for trial or on the f m l a interference case when the judge scheduled for trial on the a interference case ivy hill sought reconsideration judge joyner granted reconsideration dismiss the remaining claim and that ended the entire proceedings but then  and also granted summary judgment on count one can you do that iran or when the district court granted reconsideration the court entered requested somebody's judgment and dismissed the case so yes i didn't raise it i didn't have a problem with that i thought procedurally it was correct because they raised a reconsideration that means so did you take in peel from anything other than count one when when the remaining f m l a count was dismissed we filed for reconsideration that was denied in i think may of two thousand eleven at that point in time it was a final order on reconsideration on the underlying summary judgment order and we provided all of that in our appeal documents and it's never been raised or made an issue and that's from count one and i want to know why you were really refers to matters that are other than count one because aspects of the case in all parts of the case so that's how we had filed a notice of appeal of that last order entered which dismissed the final claims now fairly said it may in that notice of appeal form if i may have only mentioned the is not the kind of case for which judicial stoppel that doctrine was intended to apply we don't have someone here mr macfarlane plaintiff that had played fast and loose with the courts there was no affront to dish of integrity there was nothing here wherein it was disingenuous arguments made prior to this case and that based on what the supreme court has written in the cleveland case and the third circuit's subsequent rulings and that is the touch tone now when we look even further than we go beyond the general idea that this is not the kind of judicial stop case we look at the specific elements that the third circuit has articulated in the first key element in it to do that to do to invoke judicial stoppel is that there has to be some sort of  factual representation in conflict with what look far one is trying to do here and there was none there was nothing submitted prior to the district court that is in conflict with what mcfarlane has alleged here and that is he said he was able to go back to work on april seventh seem equal seventeenth two thousand eight hundred percent himself to return to work they refused they have nothing after that no representation that mcfarlane made to anybody that he was unable to work after that point in time again he presented himself as able to work on april seventeenth two thousand and eight they said no you can't come back and the only other record evidence is that he continued receiving the disability benefits and now oh wait a minute doesn't go ahead ye disability payments when he has put himself in the position of saying i am not to say oh well what we know is that he continued to receive the benefits we don't know why the disability obviously he's making some sort of contrary representation what he has to do here so you see you're suggesting that you cannot have judicial a stock will buy a failure to disclose something well i don't i didn't go that far honor i didn't go that far because we didn't have to go that far in this case and that kind of thing had not yet been briefed and i don't believe it's been raised here well because there has to be some factual representation that are able to return to work it must notify us that's in the policy yes and we don't know what macfarlane said to them we don't know what his doctor said to them because the file was never subpoenaed during discovery and the trial if the employee is unable to perform an essential function of the position because of the physical or mental condition including the continuation of a serious health condition told his employer that he could return he was not under restriction he had a restriction that he could not lift twenty more than twenty pounds that restriction was not didn't the employer have the perfect right to deny him and we under the federal under the family and medical leave act if lifting more than twenty pounds was an essential function of the job then they would not have been required to restore him or reinstate him here though the record below is that lifting twenty pounds or more was a minimal negligible part of the job and that was he first of all he had an assistant to help him and it was only one task out of about thirty that he listed if there was a change in a dryer motor or a change in an air conditioner motor that was the only time in all of his duties as a maintenance supervisor that would require more than twenty pounds and he had an assistant anyway so that's why that's right he was able to do the essential functions of his job did not ask for an accommodation is that right the district court had denied the summary judgment initially on the interference claim in part and also because they found the district court found that there was an issue of no there is an issue of fact there on both those points and then on reconsideration the district court dismissed it on the grounds of judicial stock in our point on that is aside from the fact that there is nothing in the record showing an inconsistency after april seventeenth two thousand and eight as well is that even if there had been an inconsistency let's say there right let's say there was some sort of inconsistency or let's say that the district court was is if you could mcfarlane reconcile and sure illogically he did in the record he get of course he said look anything that i may have submitted because there's no record evidence of it but anything that we said and sent in was because of what i was told by my employer my employer says i couldn't return to work so the disability benefits continue and he didn't do anything further mean that if if we look at the third circuit decision  or it's not about in the third circuit decision in montrose and if we look at some of those other cases powells from the seventh circuit the mulhern case that we cited several of these courts and judges have found that if you collect disability benefits because your employer tells you you're disabled you're bullard while you return to work it doesn't doesn't that there's a legitimate reconciliation but you're not playing fast and loose with the rules which what this case about i mean essentially you know it would be ivy hill she should be a stop from raising this argument since breaux the one that said he was unable to work in the first place so that was the second point here is that even if in fact there was something that reconciled and again we say there's nothing in the record that need be reconciled but if even in fact there was something to reconcile obviously he could reconcile it just by common sense and we had it in the record based on the opinions of this court in montrose and mr saying there has to be specific factual representations that are in conflict just general statements or inferences are not enough you know i was the these you know how the the doctrine is looked at on on their own when reconciling statements but but finally are you saying that he made no represent there was no representation what was the connection between his representation to insurance company and his being  i apologize i didn't quite hear that the end of that question was the connection i mean it could help you out of the connection is april seventeenth two thousand and eight he presents himself as ready to return at right at that time he tell that payment doesn't he make a representation that i'm disabled i'm i'm going to take your money but i'm not to say well nothing it takes the money yes he takes the money for how many years did you take the money just another something here he's saying oh we know would be something indirect had there been record evidence had they gotten the disability carrier file and let's say your honor mcfarlane it's admitted something may fifth two thousand and eight you know your honors let's  said i can't get out of bed i can't stand for more than ten minutes not what happened what happened is he took the money as disabled and but he's not and then he told the employer i'm not to say actually in reverse he told his employer that he was able to return they said no you're not so he kept collecting disability benefits although there's nothing that shows that there's anything new provided to the disability or carrier was that in order to invoke initial stop all there has to be some review of the right sanction here and as your other points out there something that ought to be looked at as far as a disguise collecting benefits or so seeming disability benefits after he was able to return to work and so the remedy here rather if there was going to be judicial stop one vote the remedy here would seem most appropriate to be he doesn't get back pay for that period of time sanction oh well well well no not ignore it but but but don't throw the case out just because he had a secured collect disability benefits after he was told to turn to work not his fault and that's what th to a few of mr weinstein's comments to stay directly on point with what is at issue in this case first he mentioned that judicial is stoppel is not applicable in this case the order of the eastern district court dated september two thousand and ten covers that in great length on page three and they do mention that despite the defendant raised to fail to raise the doctrine to stop before the first raised in the first time in its motion for summary judgment plaintiff did not object to defend his of court mentioned that there are several reasons why despite the fact that as a defendant we raise the doctrine of judicial stoppel for the first time in our this case the next point that i wanted to address was the point with regard to mr mcfarland returning to work on april seventh or eighth and indicating that he was able to fulfill the essential functions of his job yes but mr macfarlane did show up actually work on april sixth he did not show up back at the facility at that proposed expiration of the leave but he showed up back at the facility on the sixteenth and when he showed up back at the facility to return to work he came with a doctor's note that stated that he could return to work on may first in a part time capacity with restrictions after we mentioned to him that he would not be able to return to his job he then miraculously came up with a nother doctor's note the very next day that stated that he could return to his job and he could return immediately but there were still restrictions but he could come back full time the restriction still existed in the doctor's note on i'm sorry are you saying i mean he came back the next they with a different doc they were both from thomas jefferson university they were both on the same letterhead they both had the same individual signatures on both them i mean the same doctor one dated for sixteen one dated for seventeen and what appears to be the exact same handwriting from thomas jefferson university physicians it's interesting so when he returned to work with those notes even with the restrictions he was told that he would not be returned to his position because he was not able to fulfill the essential functions of his job his job was maintenance director at the time and maintenance director at the facility it's not an overly staffed facility and maintenance director at the facility was a hands on position and he was responsible for doing things that are in the record such as rehanging doors rehanging headboards moving televisions moving equipment their responsibilities of the main instructor position that he had fulfilled prior to his condition that he was unable to fulfill after his condition and so he really could not fulfill the essential functions of his job also in his job description it did state that he would need to be able to push pull or lift over twenty five pounds to a height of greater than five feet which mr macfarlane at the time was not able to do why didn't the district court can you give us these facts grant summary judgment without having reached the judicial stop and should what precluded or did the district judge find there to be an issue of fact as to whether he was capable of the courage and i don't recall that the the district court defined that there was a an issue  to whether he could i don't know that we reached that point we stopped at that the date the eighth and and then they addressed a traditional stop at that point all right i don't i don't necessarily be also i want to address the point of whether there was a statement made by appellant with regard to his inability to perform his job there was an application that was submitted to the disability carrier unum at the onset of his disability which was factual and stated that he could not do his job there was paperwork that came back from unum to the appellant that stated that he would have to notify them immediately if there was ever a change in his ability to do his job in any stated that the reason he thought that he believed that he was able to continue his disability insurance was because the facility told him that all the facility told him was that he was unable to fulfill the essential functions of his job and the facility was not responsible for making the determination at unum as to whether or not he should be receiving realty insurance benefits that decision was made by you and him and it was made based on statements from his physician also humid  physician that not a doctor's note wouldn't be sufficient you couldn't submit a doctor's note to unum to say that you're capable of doing your job or you're not capable of doing it required medical records so unum required medical records from the doctor medical record documentation in order to make the decision so it was the physician we don't have the medical records why why is this record adequate to make a determination of judicial stop without knowing what representations were placed in medicare well the condition he suffered from would be temporary for an estimated six months and that's the documentation that unum relied upon but it was incumbent upon the physician to advise you know that the benefits were no longer warranted if mr mcfarlane was able to work on a monthly basis mr macfarlane received a phone call from you and him and this is from his admission number forty four received a monthly call from unum asking him if there had been any change to his condition and telling him to instruct physicians to forward the information to you and i'm the union benefits were extended we did during discovery request information communications from the physician to unum and we were not provided with that information but in the district court the district court found that it was the burden of proof of the appellant to provide some way to explain away these inconsistent statements that would have been a way to do that but nothing was provided i also wanted to address the issue of the cases that opposing counsel brought forth with regard to cases of disability and discrimination existing side by side which is true there are cases that represent that this can happen based on the criteria with which individuals are eligible for certain disability benefits but in this particular case the documentation that was provided to us ended the benefits and allowed him to continue to be eligible for disability benefit will be allowed that to continue and continue to collect on a monthly basis the or the disability benefits and therefore he continued to accept those benefits at the same time claiming to this court and claiming to this facility that he was able to come back to work there was also within opposing counsel's brief an issue of whether when he returned to his job after his restrictions were lifted if he was just say disabled at that point in time are eligible for restoration at that time his position had been filled even though back in august his restrictions were lifted following the history of the case there were several motions for reconsideration and approvals of denials of such motion and it was our understanding that that particular issue with the regarded as disable is carried forward from a prior case prior you can go back and pick up denials or ranch prior to that no sir i do not and so your conclusion would be that what that we must deal with these other issues were that we don't have to do them because they were never appealed should the records state in accordance with precedent that you don't have to consider the second count in this matter and i would prefer that you did not consider it but i have no authority with me right now to support it one way or the other way it was my understanding within this case that that this secondary issue was an appealable issue and was preserved for appeal today thank you there any other questions i have thank you very much thank you functions of the job as far as the judicial stoppel in the point out that mr decision which cites montrose as well but dismiss it on the record why do you have to go to judicial stoppel to do so and that was the very point we've made to this court about that baker decision they say baker repeatedly as as being oh this is the exact that point we wanted to make as well but again another point if i could i know for jumping around here but on the affirmative on this issue of judicial stoppel it's an affirmative defense they have to prove they have  to meet the burden of proof to have the case thrown out not us in the didn't and there were some questions about who got what medical records and who did what to get the medical records and the burden was on them to do it if they were going to meet their proofs and finally  let me just briefly if i could i've got thirty seconds to deal with that eighty eight issue in this case and i think it only really warrants thirty seconds because there's a very very slender  from the deposition of the decision maker a very slender part of that record but it's telling it is a limited it shows that a reasonable jury could find that they considered him to do any jobs that require answer yes i understand in your honour's because it was never raised in any of the appeal papers because it had never been raised anywhere i didn't come with a particular citation on it but i'd be happy to provide right yes that's fine and thank you when you send you