this is a rule twelve so all we really have is the complaint management had grown impatient with the plaintiff over plaintiff's family obligations and i think there's no dispute that he was late i mean admittedly only by a few minutes correct he was late at some point toward the end of the timeline but that doesn't establish as a matter of law that it was a legitimate reason to terminate him this is not a solid let's assume for the sake of argument that he was terminated solely because he was late on that one occasion i may be ridiculous thing for an employer to do but but this court doesn't sit in judgment of employment decisions writ large m why does that not suffice for their purposes if they can prove after discovery that the only reason he was fired was because he came late that day because maybe something happened on the day he was late and he couldn't do it ok the next the defense that's a legitimate defense but that's not where we are here where we are here was that he was a valued employee for some period of time until he told him about his daughter and then everything goes downhill and there were comments and they'll demand accommodations and the laws that he's not entitled to those accommodates rect but the requests for accommodations gives rise to an unfounded concern by management that this is going to be a problem for us he's a new worker you know he's he's he's requesting these accommodations we say no he continues to come in he does a good job but that signals to management  unfairly that this is going to be a distraction and this is going to be a problem get rid of i mean he's got a daughter who's saying your brief you cite the fact that they didn't grant an accommodation to an evidentiary basis to conclude that there was  improper discrimination how can that be if the law's clear that you're not entitled to an accommodation because you're not suing over the fact that they didn't get accommodation i mean people sue because they don't get an accommodation because then they just don't come into work because they need t combination it's evidence that they now know that his daughter is a concern for him and requesting an accommodation they now think to themselves ok we have a problem here you know he's he's requesting time off not giving him time off even to keep questioning it it's an unfounded concern that his daughter's health is going to be a distraction and there's no evidence there's nothing in the complaint that confirms as a matter of law that his daughter's health is an actual distraction because he's still doing his job paragraph fifteen says that it didn't affect his job duties so this is all speculation on their part and the reasonable accommodation denial is evidence that they have a concern that this is not this concern on his part play as par is not going to go away and so you know based on the plausibility standard and the minimal burden we have in establishing or pleading a prime aphasia case this is enough to show that they had an unreasonable concern that his daughter's health was going to be a distraction for them but it's not established as a matter of law in the complaint that his daughter's health was an actual distraction and that it made him a bad worker it wasn't until he told them his daughter was sick that things went downhill i want to talk a little bit about the legal standard because we only have one case that really addresses this and that's the grazia audio case and grazia audio gives us a three part  way of proving these cases one of which is distraction now it doesn't really matter what i think but ground is grounds the audio does have a fairly narrow way to strike thier district right right grazia does set out what looks like a pretty narrow path to victory for plaintiffs in these cases i just want to point out that other cases that address this issue and including cases upon which grazia audio relies do say that it's not an exhaust test and that includes the stans very case from two thousand and eleven and remember what the gay da says on associational discrimination it's straight it's illegal to deny equal benefits and rights because the qualified individual is associated with somebody who's disabled nothing about distraction nothing about cost nothing about fear of a contagious disease the congressional report on the a b a gives a hypothetical which is a straightforward you know somebody is fired because the wife is disabled nothing about distraction so the three dollars factor testing grazia audio i don't think it's the only way you can prove a case like this it's one way to win but on top of that i take it party argument is that the relevant standard at this stage a summary judgment could be granted for the defendant because of the playing its failure to actually present evidence sufficient to to to reasonably supported was not implausible that the pla win but the part of the reasoning grass you had was that the employer that there was a fit that the employer did not get the employee did not plead at the employer believed she would be distracted by the disability of the s and you are you are alleging that in this case we are and the reason i bring up the broader legal standard is that to the extent that we as i understand it gratis yada relied on the absence of evidence of what you are alleging here correct and in judgement for the defendant correct correct i agree the only reason i brought up the broader legal standard is that it strikes me that when you're alleging perceived distraction i think we have it in this case but it's a pretty high burden it's a very narrow way for somebody to win unless you can show cost or contagious diseases so to the extent this court is having difficulty  this case of fitting this case into the distraction standard i think the standard under the a d h should be broader and the other courts say that it's border that's my point about emphasizing the nature of the graziano opinion but i think that you're not saying that we need to go that far in order to graziano very rarely litigated area suits the issue of discrimination cases that have the opportunity to follow the precedent adopted by other circuits such as the th circuit and then hard tog but instead adopted the seven circuits ruling give you a hypothetical if if let's say you know we were privy to the defendant's state of mind and the defendant learns you know is totally satisfied with the particular employee's performance and conduct but learns then that you know they have a disabled relative at home and is worried about that that will cause a distraction misses you know what i don't want this anymore i've got to get rid of this person and basically sits in wait until the employee you know is ten minutes later commit some sort of de minimus infraction and then fires a person now assuming that we can you know derive the divine the employer state of mind that would state a claim correct correct ok so how is this case different granted we can't divine the state of mind but as i see it the complaint alleges that the employer was fully satisfied him with the plaintiff's performance until learning that he had a sick relative and feared that there'd be destruction said no you have to you can't rush home after you know your shift but the complaint i think is either silent with respect to whether that conduct continued or maybe even says that you know after being told that he couldn't rush home after the shift he stop doing so and then nothing happens until he's ten minutes late and suddenly he's fired i mean why is that different than the hypothetical respectfully kelleher's complaint is different in the fact that in several paragraphs in his complaint he admitting that he could not work the his work day in a paragraph if teen at his complaint he admits he concedes that there was a requirement of all employees not just limited to calabar that they remain at work for the entire work day including after the shift all employees not just him for emergency fact that the that's the need to go home when overtime was required is something that transpired while he had a more demanding position he didn't object to becoming a work the full day he's told you have to and then and then and then is demoted not raising a claim with respect to that and then the complaint is silent with respect to whether he is then meeting that requirement to work or not in other words you know and so number one that number two it seems to me that that's sort of bleeding into the nd stage of the mcdonnell douglas analysis and you're proffering what the explanation is for his firing and asking us to find that that's a legitimate nondiscriminatory reason but the question here is whether he is a prima facia case isn't it and we don't believe he does there was not a fear on behalf of cooke that he'd be an attentive outwork it was that he was not performing his job not a question of fact and that he needed to absent that what he required was a modified working schedule that he couldn't stay low later at the end of his shift work the full day the late day as compared to his other employee is that he was unable to be there that is over looking at that is what he admits and alleges you may be right he has the evidence would eventually develop but when assessing a complaint a complaint can allege different theories and the issue for this fish and see of the complaint is whether the complaint contains the sufficient allegations to sustain a particular theory and it frequently happens that the plaintiff who is pleading different theories will plead facts in support of one theory that are harmful to the other theory the plaintiff only needs to prevail on one of them and the plaintiff has been precluded from succeeding at least so far as lodging a filing a sufficient satisfactory complaint a by the fact that some of the allegations that support one theory are harmful with respect to the other theory if you find in the complaint sufficient allegations to support the theory a theory that says that the complaint is valid at least in so far as that theory is concerned although perhaps another one might be dismissed in every allegation calibers complaint to show some evidence or to set forth that he believed that the fear of distraction was the driving force behind  th as alleged and kelly has complaints his employer told him you need to stop rushing home from work we need all employees not just the ones with disabled assume it's a relative to remain here that's what you were hired to do and you're not doing it complaint doesn't say that now granted it doesn't clearly say that he accepted it and agreed to abide by it but again we're at the so you're suggesting that it says that he's not living up to it and i don't think the complaint is that i respectfully disagree around or two days later he called out of work because he had to drive home from the hospital that is alleged in his complaint and in paragraph twenty four he explicitly states keller was terminated because he needed to leave work as soon as his shift ended in light of his daughter's serious disability if he had not played perhaps in paragraph fifteen but that was a requirement of all employees and he did not plead that similarly situated employees with associates were not required to work late he was being treated equally as everyone else if he had not played that perhaps he'd be successful unfortunately for color he pled paragraph fifteen in such a way and paragraph twenty four that he was terminated because of his need to leave noted in this matter the establishing too much work way too much time off of work entails in the context of an at will employment is not for the court to decide and there is another why isn't there an available inference that he was fired for coming in coming in late other times as well in other words fear that he will be distracted by his daughter's condition and unable to perform his job perhaps if that was the only allegation that would be true there are several this was a requirement of all employees including himself not just those employees with non disabled children or associates there was not a fear of distraction here that work killer would be distracted he was sufficiently distracted so potential emergencies and that was before he was demoted in other words if he says i need an accommodation they say no you can't have an accommodation this is but i need one they say no you go get a different job that's not a claim  no but then he stays on the job he works east now in other words if he says clearly i can't do this job absent an accommodation and they say fine then you don't have this job anymore that is not a claim on her got the auto correct if that's and isn't that fully that he was terminated because he had here to the viewer because he told them that he needed to leave work as soon as this shift ended and elsewhere in the complaint i think it makes clear that the employer viewed that as an employment  condition of employment that he had to stick around after his shift ended and not rush home well because he told them but that doesn't mean he wasn't able to do is work by telling them i need this accommodation they think we have a problem now he's going to keep asking for accommodations this is going to be an issue let him go he hasn't even been here a year find somebody who doesn't have these problems but the complaint does not establish that he was causing problems or that his daughter's disability was causing problems on the job justifying his terminations am i right that the this record gave you an opportunity to amend the new opted not not to take it correct we think we took it as far as we could i think thank you thank you both was