we mentioned to first whether an employer may reject applications for a job transfer from an employee on short term disability precisely because that employee's on short term disability and  catch twenty two issue namely whether an employer may keep insisting that an employee can return to work for his harassing supervisor but is not qualified to see a person eligible for a job transfer i'd like to start today by discussing each of these questions in the context of mr two bills projected job transfer applications turning first to the catch twenty two issue that was created by i b m and indorsed by the district was steadfast that he could return to work with i b m with a new supervisor or in a new role and his medical reports supported that he could and he performed well in his interviews at the turn now to the second question of whether i v m's justification for denying his transfers was unlawful the first rejection for transfer to the five seven nine in writing on january six two thousand and twelve specifically the hiring manager chris kyle wrote to mr to go quote i underestimated the difficulty of moving forward with bringing you to the team we cannot move forward with taking you directly from being on short term disability this will receive very close scrutiny from the operations people in the station this is direct evidence the discrimination it's direct evidence of retaliation for taking disability leave  it was an awful unlawful failure to provide reasonable accommodation it just supports the conclusion that summary judgment was partly granted on counts two four five six we said sensing the outback steakhouse district court of what did that discussion by holding that the rejections for transfer were not adverse actions i want to address this point as a result of the two rejections for transfer mr  the short term disability according to the company records in the mean time the company's see is evidence that he is in fact w orking someplace else and at that point they ask him about it and he refuses to give the end the nation and i essentially ask again and legislature in terms of terminations and communications that were back and forth at that time mr too vell was more than willing to assuage their concerns that he was not worth the competitor and what's in the record and i hear your characterization of it he said you can go online and find out just as well without asking essentially russia which which factor for him to answer my question  mother and he was willing and the concern stemmed from was he working for editor and under the company policies you only have to disclose that other work if it is for a competit  information on his life and page that indicated that he had worked for you have seen previously i've him knew about that he hadn't touched his linked in page years so there's evidence to record the he did not put that in there earn artist when they have a right to get the information directly from him he was he had valid concerns that they were going to jeopardize his appointment there there was a lot information on his employer those reasons were and did he communicate them did he say i'm sorry i can't give you that information for some reason he did he indicated that he was they interfere with that all right and if we find that's not retaliate and that's a perfectly legitimate request for information then what argument you have well normally certainly course it's a legitimate request for information but in the circumstances of this case with a long history that they've gone for it because they knew he said he had he h why isn't it sufficient for somebody to convince them that he's not as is on his linked in page but he did they first of all they went out and saw where they found it and so he didn't deny what district courts dismissal of even a complaint was correct in that respect it should be affirmed as this court said about a month ago in the lang case sometimes the simplest way to decide a case is the easiest way or the best way rather and i think that's the case here in the district professionals first a nurse practitioner for the first two months in august and september of two thousand and eleven followed up by his social worker who is his mental health counselor stephanie ross who repaired mt r s for september through december record he was a strike this severely impaired his ability to manage conflict with others his ability to get along with others without behavioral extremes in civilian interact and actively participate in group activities and we really do see that the the mental health official did say that last one which was the post you said it was only possible and she was describing the idea of a fifth of possibly a different supervisor or a different set one of the other of those things and if you look at the record of different supervisor by that time we actually had a pretty clear vision of mr mr two valves idea of what a different supervisor might look like it wasn't anybody ever identified he admits that he never identified the supervisor but at that by that point in december he had a laundry list of individuals who he described variously as wrong doers and evil doers who had caused tremendous problems there in the workplace including everybody from his structure provides for mr veltman all we have to the chairman of the company sam  ano who we're still not quite sure why he's identified as a problem in this case other than the fact that he did receive one point mr two valves unsolicited complaints about the workplace by three hundred pages of documents he testified spent twenty two hours a day on these over to the three weeks and they just listed item after item after item but the reality is when you look at the record in view of the case that by that point it was that these came in a vacuum because we did have m too well you know starting from the very beginning of his time with i b m about five months into his tenure so may of two thousand and eleven here's a very very minor workplace interaction the kind of thing that under any objective standard we must standard here was benign that most his boss comes to a professional the professional two senior software developers and they and they discussed the mr feldman's ideas let's talk about the fact that our internal customer is not satisfied with the over bills now wasn't the big issue was something about you that the software deliverable being in an excel spreadsheet or not what it was quite on time or not so you had that and so they sat down to talk about it in the two bells response was really remarkable rather than engaging in a professional conversation he merely accuses the can now be of being a liar and having some sort of alter your motive behind this not knowing was talking about that conversation went nowhere if we just stop there  maybe we'd be you know ok if things improve from there but a couple weeks later mr cannot be in this a two hour again going over a software issue again of ordinary workplace interaction people working together and what happens voices or yet at that point says you know what these two are working well together so let's move mr to val from the canal view work to another set of work within this or feldman's purview and we'll switch him over with another employee reaction not disability discrimination but these other things and then again we're not making a lot of progress here in terms of the interpersonal relations between the two fella mr canady mr feldman we're just a publicist trying to manage his and it never changes from that time on in terms of his position on this issue of working with this supervisor except as i mention he expands the group and that's entirely consistent with what miss ross s in her deposition testimony as well as her in her long term disability apple appeal all the way in september of two thousand and twelve after he's been working for this new company for a few months in the long gone from i b m and she miles of the location where he worked he becomes a sterile if he talks about the work place becomes upset and obsessed and most disturbingly she says that if he just sees felt then or cannot they could trigger obsessive thoughts depression or other strong reactions and we actually have a mystery to bell's own testimony a vivid example of what those other strong reactions might look like you testified that he drove to the gas station he was just the picture died when he was commuting back and forth to work and just being at the gas station that he used to go down slowly and actually we have read  val has taken in his various e mails which is there's nothing wrong with me it's just that i can do this job it's just the supervisors harassing and so what les is basically saying is look we've done the investigation we did the investigation original of this do we did the investigation the follow on with mr mandela or mr mandela excuse me and the result of those investigations he didn't if you did interview for the job and he didn't get the job and that's because the hiring manager for that position when he was interviewing him it was pretty clear during the course of their conversations and some of the e mails back and forth t development to about was looking for higher end development work this was kind of a low level maintenance for a mature product and mr kind that gentleman who was interviewing for the vision with a relatively new manager down in austin texas managing remotely  as far as the short term disability piece of it what he says and what mr klein was imposed on us and what he testified about in what is an admittedly a clumsy email is that is that because mr to that was in somewhat of a unique his boss to say to say this is what this is the review from the manager in time was not working alone he was working in conjunction with his up line managers again he's a relatively younger manager and so he's saying that the the cup the complicating factor for him is that he can't just give to his managers to review and say this is how the guy did instead he needs to be you need to be incorporating additional elements in terms of getting feedback from his current manager and verbal and then transmitting that was bought in the feedback that you received from the manager was not one hundred percent favorable for sure on the technical side it was actually very good because no one's ever question to golf believe them to the program but on the on the on the on the side of interpersonal relations again the things that we've talked it's a it's a it's a disqualifier for him coming up short term disability and in fact they know that when he first engaged mr to bell when this if you fell first approached him about the position mr duval mentioned them specifically that i'm coming off of short term disability and yet even under those circumstances mr kind you know didn't say ok we're done here he went through the interview process with him at that point and he continued to any and he took them all the way through the process so it was never  decisions but in his e mail to mr time mr develop said i have a clean bill of health as of early december of two thousand and eleven he did not have a clean bill of health of that point but his own by the admission of his own  you can continue on appeal that the long term disability denial and well you know and we'll hold your position open and we're going to still continue to talk to you about about reasonable accommodations of the circumstance and so that's where i b m is now why the i'm having this conversation with mr to well he's already working somewhere else as of a month earlier and so i'm i'm going outside the am so inmate comes around and somehow they they find out there's this linked in page with the e m c reference on it saying you know from a certain date to present meaning to the wrongdoing and that he wasn't justified in fearing for the wrongdoing and then let's focus on the phil transfers because there was discussion of you know who made the decision it wasn't mr kyle on his own  history to velshi and get the job mr feldman his manager poison it is evidence in writing the live chat on december thirteenth the conversation was over mr kind thanks mr felder for his time candor mr mr feldman then volunteers his own question he asks himself his own question would you hire him again he says no so he adds this to the end of the conversation poisons the chances that mr to bill is going to get the transfer two days later in another live chat mr kine writes to mr feldman quote based on your feedback i don't think we will be able to move forward now there's a reference to you know we can't get a performance rating from streeterville on march thirtieth two thousand and eleven he had gotten a performance review and it was a three point five rating this is on ph seven forty nine of your pen dick's and what a three point five rating means is that is between acceptable average good and above average so that was his foreman's rating then two months later he tells mr valma he has p t s d then everything changes what happens after that or not we're regular workplace interactions it was defamation it was demotion threats of terminations just for making complaints of discrimination and mr felt was right involved with it throughout the process some of the some of the comments he made are just direct evidence of animists on june twelfth two days after he demoted mr minister to go he says he quotes his history of suing when you feel you've been wronged in the office to two weeks later after the first an investigation closed with a denial  says let's suspend all history to build access because quote my concern is he's establishing a prima facia basis for a claim of accommodation so this is a manager actually saying i'm concerned that he's  accommodation there was a reference to mr mandela and the investigations mr mandela was the head of the concerns and appeals and he was handling all the open door complaints what did he say to mr duke the first investigator as he was telling her to to deny the deny his complaint he said quote no need to place him in another role like a tantrum for a two year old they will learn to do it again if you give in to what they need so before he even begin that mr develop his accommodation but he won't do it the time is a thank you