are five main points that i'd like to make in this argument the first is that there are numerous factual points demonstrating triable issues the material facts that should have precluded summary judgment that there's a fundamental process flaw in the procedure that was used below third the lower court's denial without explanation of the rule fifty sixty affidavit submitted by counsel was the fourth the cleveland versus policy management point on which the government relies and fifth the contention that there can be no proper request for a reasonable accommodation after a notice of germination  provided i would like to just take one moment and dispose of the fourth item quickly because it's a one sentence point this is not the cleveland v policy management situation the plaintiff was trying to get off her benefits and onto employment where she would be a taxpayer there's no question here that she was improperly trying to get benefits and then make a discrimination claims she's trying to get off benefits the first point on the factual points it's a general  rule in summary judgment that if there are differences among managers as to the reasons for termination as to the quality of the plaintiffs were a summary judgment is an appropriate plaintiff had one immediate supervisor who saw her day in and day out and so all of the work that she did on that supervisor testified that she was totally satisfied with the plainest work and would have to only have to miss one i have a question witness what was that j a fourteen fifty three which you toss out of my conversations with the two supervisors a second there is a general doctrine with respect to summary judgment in employment cases that if the decision maker stace different reasons inconsistent reasons at different times that that is a tribal issue for a jury the jury has got enough to decide whether the individual is telling the truth one time the other time or both times and here miss warner and filling them out had anything to do with terminations that's chaney a twelve eighty five she denied the use of the telephone calls that were being made being way for a desk she said that had nothing to do with the terminations decision that's j thirteen zero three at the unemployment compensation hearing she said that socializing not focusing the entire time at work that was one of the reasons for termination that is j a the in misconduct at work and yet the terminations decision itself relied upon these things so she's all over the map in terms of what a reason is  information from which a jury could decide not to credit her and we know from the supreme court's decision in reeves against sanderson plumbing products that where there is that kind of information it has to be considered an adjustment as a matter of law or summary judgment decision but not to be given weight you can only give weight to evidence that the jury is required to believe so it was a mistake to rely on that the third basic summary judgment principle is if the defendant cannot even agree on who the decision makers were that's a question for summary judgment in this is something just came to my attention this morning your honor on looking at the j a three thirty four where she says that she was directed to fire miss work she had a meeting with her this works on july eighteenth two thousand and three ms works was told that if i had to make a decision today i wouldn't recommend to terminate you but she's not making a decision that they are still a couple of months left to go your probationary period and you can work this out she tells ms works then she talks to her supervisor to say terminate her now those supervisors that she spoke to the managers over to see what there was to support it because if you look at the two briefs fairly it's hard to believe they describe the same person there's a reasonable person taking advantage to look at things brief a reasonable person trying to take advantage of a government program designed to take people off of benefits and make them productive taxpaying citizens that's the program that she was under and she did of that she made some mistakes she did things properly she learned she had basic skills if you look at the senate and if you look at the termination letter this is the employee from hades she didn't do anything right she made every possible mistake and no employer could possibly be has to put up with somebody like this so i started this because the lines went to because they had me working some days i was working five correct i was working on the fourth floor during i v training that process every hour they start i t t i have to go down there on lock the room set the room up get the time  sign in chief make sure the students sign in and make sure they're able to log on that's j four ninety nine carrying over j a five hundred point she admitted was that her duties took her away from a desk and yet that is used by the government to meetings i have to tell the truth but the time that she admitted dozing off was during a fire training session and she'd been in the navy for many years she going through advanced fire training in the navy ship certifications  stuff they spent two hours going through basics she testified that all of the management trainee is in a lot of the others who were there in those sessions were those and by the time the guy got to the end of this two hour presentation that's not just the impression that the government had multiple requests coming in from different sources so that the same item was being requested to multiple times they were duplicate in triplicates of the worksheet and that there had never been a proper set of instructions given to miss work and she had absolutely no question that mr works would have been able to do it properly if she'd been given the instruction that was the basic math part of they're also formulas that were involved in the budget and here i have j eighty five  one fifty three one fifty four that that deal with that the formulas in the budget were not noticed to be wrong even by mr johnson bay they had to go to the budget apartment to get it done and the management assistant who assisted in getting that finalized also did not have the knowledge and had to go to the budget department so what we have are a set of standards that were singular be harsh directed to oh you're out of the summary judgment with the summary judgment motion in the administrative process no discovery was taken because ms works was not represented by counsel she was directed by represented by someone who simply didn't seek discovery at the time the counsel came in later in the administrative process the administrative judge refused to reopen the discovery period so there was no opportunity for discovery there the motion for summary judgment and rule twelve motion filed in the district which you indicated that you needed discovery was not filed until five months after the motion was filed so there's a bad month time period when the the court is not given the opportunity to even accord you just elected not to see discovery time your honor i'm told that there was an agreement between the parties not to do discovery before the decision on the summary judgment i don't know anything more about that that's just what i've been informed of any where the record appellant in this case made a very commendable attempt to reenter the workforce after being out of it for about ten years and equally commendable is the fact that the agency was willing to give her a chance to do so and in fact the record shows that the agency gave her opportunity after opportunity to prove that she could be essential functions of her job but the ample record in front of this court shows quite clearly that in fact she just couldn't simply do the job she couldn't perform the essential function affirm the grant of summary judgment in favor of the agency and no your honor as i'd like to pick up at the point that we just left off on just so there's no on clarity in the record i think i understand the procedural history to be as follows and this was his response of just actors question  at the administrative phase in the phase i believe miss work was represented by a union attorney is a gentleman by the name of milo martin minder standing is that mr martin chose not to pursue the discovery that he could have pursued in the administrative process sometime towards the end of the process a gentleman by the name mr gilbert took on the representation of miss works and at that point the administrative law judge said too much water has gone under the bridge we're about to do this evidence you're hearing i'm not going to reopen this case for discovery so to the extent we're now here in a fifty sixty argument i think my retort would be the lance left on her rights during the administrative process and even not withstanding the fact that which almost all of the key players gave testimony we all say not all of the key players is that right the only one individual that i believe that i heard did not give testimony that was a key player was william johnson b and he was miss warner's number two and a supervisor in that that shop and he had left the agency at that point right but he also was the one who did her march evaluation and who as signed her two of the assignments that are now deemed inadequate october two thousand and two in the june two thousand and three as assignment so why shouldn't we liberally constrain fifty sixty to permit discovery now in order to safeguard that process before a grant of summary judgment for a variety of reasons your honor first and foremost i'll say with respect to mr johnson be he actually did give testimony at a maryland state unemployment benefits here that transcript is in the record so certainly there are some testimony from him alternatively i'll say your honor fifty sixty only requires a judge in his or her discretion to grant discovery where it is essential to the case and if you look at the fifty sixty affidavit here the showing of the burden is on the f l lant to show this to show what hoped for evidence they would get and how that evidence would make a difference and how they couldn't get that evidence through other means and we get this specifically from the case of ruddy versus sebelius which i know is a case that judge traxler was recently on and a case that the appellant is relying on the fifty sixty affidavits and both of those cases are actually quite similar so on those grounds your honor i think this court again of reviewing for abuse of discretion can say that the district judge here was well within his discretion to deny fifty sixty really the other thing we pointed out and our priest your honor is you know it is questionable whether they will preserve the issue below if you look at joint appendix page eight hundred thirty five the fifty sixty request was sandwiched in the middle of the legal standard section and certainly i think this court could find that it wasn't preserved  the the real issue here is whether this is an abuse of discretion and i think if one looks at just the enormous administrative record that we have i think it's a very clear that it just her court can exercise its discretion to say you have all the evidence you have that never said anything about what his reason was for lying that motion well your honor i will say i he certainly did not in his first opinion and in his second opinion he certainly had the issues of the fifty sixty request before him and he still denied it so did he go into at length what his reasoning was if he didn't and there certainly isn't anything in the record there but what we did cite for you your honour's is is two cases under very similar procedural footings where it just records opinion is essentially silent on an issue that would otherwise get abuse of discretion standard in this court and in both of those cases the belly a cough case in the melbourne case  his court still applied that abuse of discretion standard and the court did it because the decision by operation is a exercise of discretion in other words the district court certainly could have granted the relief that they wanted the issue was front and center in front of him and he decided not to grant that relief so we respectfully submit on that issue on the fifty sixty issue this courtship affirmed the district court's denial of that relief well we leave that subject mention was made by the appellant that there was some agreement between the attorneys not to pursue discovery are you familiar with what he's talking about i'm not at all your honor and maybe i should tell the other part of the story just so we're completely clear so so we talked about what happened in the administrative phase and again it's there might be some agreement that i'm not aware of but it's my understanding that the union attorney from his works simply did not pursue the discovery that he otherwise could have and then when mr gilbert came on through the mail jay said said no you know you were too far along and too close to our hearing to do that once the case got in the district court what we did is we filed an initial motion dismiss but also in the alternative for summary judgment and of the local rules of this court a scheduling order doesn't go out and discovery can't take place until that initial motion is ruled on so so certainly there was no discussion amongst you know myself about discovery or not by operation the local rules they couldn't take discovery while our motion was pending honor that i'd like to move on now into the the second issue that's been raised on appeal and that's with regard to the disability discrimination case and just a couple quick things i want to correct judge stacker you asked a question about who was miss  works supervisor i think my my colleague misspoke on the answer that he should have given you was marjorie warner she in fact was the rating supervisor the person that reviewed this person or the person that she refugee referenced misnomer carter was certainly somebody below his warner and gave assignments to ms works but that the supervisor here for purposes of who made the decision it's marjorie wa workers as well as mr johnson the as well as her own personal observations and not all of those coworkers were dipetta used in the administrative proceeding just because actually i think none of them were deposed in the sense of a regular deposition everybody except for johnson b to my knowledge was subject to direct examination and cross examination at the evidentiary hearing in front of the ale j and again minor standing those depositions could have gone forward if the union attorney had had requested them so getting your honour's to to the heart of this discrimination claim this is an employee that it  is clear had performance problems as we set forth in our briefs this is someone that many people had problems with her work performance and we also cited all of the admissions that the pla sorry september october and november those projects that she had she failed on in december of two thousand and two she mentions to her doctors that her supervisors aren't happy with her performance in march of two thousand and three she's told again that she's struggling and needs to improve and then in june of two thousand and three and she's told again that she's proven that she's having troubles and then finally we have this july twenty fifth two thousand and three banker's box in which really is the straw that breaks the camel's works and i respectfully and quite vehemently disagree that there's any issue with those i think if you look at the citations they're taken for begum from what ms works said i think what we heard from my colleague mr seymour however was an attempt to explain away you know the question the chief judge traxler i think asked was about whether you know she had fallen asleep in meetings and as if to say that was something that was incorrect in our brief not so it actually admitted that she fell asleep but then tried to explain it away and i think that's a consistent pattern that we see in the appellant's brief here they sort of admit to the fact that she had these failings but they want to try to minimize them in a way that helps their case and that simply is not the way this works this is an employer has the ability to demand that its employees are awake at meetings employer has the ability to demand that there is regular attendance an employer has the ability to demand that performance is up to snuff and that's what this case is about this plaintiff was given opportunity after opportunity and she just never quite rose to that level and maybe that's through no fault of their own but again there's no evidence of discrimination here and that's what this case balance but we've cited in our briefs that this case i think is most analogous to the shin case and that's a three sixty nine federal appendix for eighty as well as the root of bomb case that's an on box decision one twenty three third one seven four both of those were instances where the employer the employee simply couldn't perform the essential functions but even if we go to that next step even if we say that there's some issue of fact with respect to performance issues and  don't think there is but even if we do this it appellant still can't meet that next hurdle that causation hurdle to show that she was discriminated against solely because of her disability in fact everything i think shows the opposite you see an agency that was giving copious amounts of leave to this individual an agency that was giving her advance sick leave when she had that seizure in the office suite they brought in a nurse to sort of educate all the other workers to say she has another seizure again this is what you should do there simply is no evidence of animists there's no evidence of you know a unkind remark or any kind of untoward behavior  i think the record shows quite clearly she was terminated for these performance reasons and again those are well documented so moving on your honor's to this retaliation claim again we also submit the district court properly granted summary judgment on it and if you look at even if you take for a moment the idea that their quest for leave that she made somehow constitutes a protected activity again she can't quite jump that causation problem there's no evidence to suggest that because of the leave she got she subsequently wasn't retained and the reason we say that is because the record is leave that she was granted quite freely and she certainly was not terminated immediate aftermath of that but when it came time to review her at the end of her probationary period they looked at the performance and showed just quite simply she just couldn't quite do it giving it to her supervisors if it would show the work that she had done and then when she was caught the record indicates that she broke down into tears and started to talk about personal problems with respect to her of the action and her husband that incident by itself is one that employee can be in and frankly should be fired for and that instance immediately priests a just or terminations so based on that based on but the cases that we cited the to bill gates and the heirs case we respectfully believe that the district court properly granted summary judgment on both the discrimination and the retaliation claims i have a little bit of and her inability to get discovery and when the lawsuit is brought in federal court what's the relevance of those two i would you describe the role so it's relevant in i think one very important respect if you look at the standard for fifty sixty it has to be something that's essential to your opposition and something that you couldn't otherwise have gotten through other means that's my understanding of it and that's what i think the rotty case shows so i think the failure to go after this stuff in the administrative phase would mean she fails on that second prong the idea that you can show that you could have gotten it independently through some other means and you know that they certainly had the chance to get it there and passed on that opportunity  and to a certain extent had enormous amounts of opportunities on everybody else that actually really mattered i mean really what we're talking about here is she got a thousand pages of testimony direct cross recross redirect the whole nine yards with respect  to ninety percent of the people that matter here the one that they're quibbling about now is this william johnson b who actually wasn't even the firing official i think marjorie warner as i indicated was that the primary mover and shaker and the worry here your honor is if if this fifty sixty request confronted if they can come up with one sort of lower level subordinate coworker employee that they didn't get at the administrative things and that will get them discovery and just record i think that would set a very dangerous precedent for people not doing full discovery at the administrative phase and essentially sandbagging in holding something back at just recording case things go ill for you  i'm not saying that anything like that is happening here i'm just saying that taking this to its logical extreme it could be a very dangerous precedent and really what we have to rely on is the district judge and the district judge has this evidence in front of him and he should be able to exercise his discretion to say that one person that they didn't get that was actually a very key person i want to lots of discovery on that but but here he exercises discretion to say there's an ample record here it's been well developed and cover wasn't warranted here i think that's the that's the relevance your honor thank you in just the brief time i have left i do want to mention very quickly this cleveland argument that we raised  and that's the latest case that i know of this circuit talking about cleveland and it sets a very clear standard the idea that if you are receiving one hundred percent social curity disability you have to make in a verminous you have to say to the so security ministration not only am i an able to do my current job i'm unable to do any job in the national economy which is a very broad statement of incapacitation on the same token in order to bring this rehabilitation act case you have to show the polar opposite you have to show in fact that you're able to work and you know maybe you're able to work with or without accommodation but so those are two diametrically opposed ideas on the question just your what about the fact that this was a probationary program specifically for those receiving disability benefits to see if they could you know become productive in the ticket to work program was not going to be sufficient to meet the requirement to make the explanation that the other answer i would give is if you look at the cleveland case itself there has to be s proffer and here they had their chance to join appendix page eight hundred forty nine to make that proffer and this ticket to work program is actually not an argument that i think they even raised in their briefs i see my time is up but it does that answer your that the administrative hearing is the equivalent of a digital hearing and a district judge should have unfettered discretion with respect to whether any discovery should be allowed or whether it simply is going to be reviewed the administrative record well in one nine hundred seventy six that in a letter to the court but that's this then we've been there we've done that second the judges rule fifty sixty ruling came up only on the motion for reconsideration he did not mention it at all in the order granting summary judgment and he said in the motion for reconsideration in this is jane a two to seven four that he did not have to explain because it was implicit in the grant of summary judgment so that the rule fifty sixty motion was tonight so we don't know whether they just did judge i think adopted or i think is the erroneous argument of the government that it has to be contained in some set on a separate piece of paper or a test or some other document or something like that it was fairly presented to the district court in the district court for reasons that no one can possibly imagine deny the thing now as to the need for documents we know the government again is playing a little bit of a shell game here in terms thirteen thirty to thirty three she had a problem with her daughter she had to take i'm off from work for that and then she fractured her ankle and was absent from work because of that and in the process of reaching a decision we have an irregularity she froze normally carter that the the need for documents and having an effective cross examination cannot really doubt it this late in the day there are going to be e mails are going to be memoranda there are going to be no none of those were available to mistreat of hearing because the non attorney representing miss works during the discovery period did not seek discovery and we don't have them now but you cannot really effectively cross examine someone without documents of the person with that time was presented as being the decision maker by the government because he thinks that he knows better from the evidence he's making weighing decisions all throughout this decision he says that things are undisputed when there's clear record evidence that does dispute them in effect the just a court was setting itself up as a super h r department a human relations department making determinations that the government did not make just like the argument that we heard counsel make a moment ago to the cleveland versus policy management point essentially the government is arguing that because someone saying they were totally disabled in one thousand nine hundred two and ten years later participation in this program it's open season the government can do but there was nothing in the nothing that i'm aware of that explains why the lay representative that she had did not pursue discovery in the ministry of hearing but it doesn't matter because chancellor hild that this is not to be review and the administrative