in question he was at work when he had an episode of hypertension where it caused among other things him to lose his vision he mediately notified his immediate supervisor miss christine kramer by writing a note that stated as you know my blood didn't even refused a doctor's report to his supervisor no he did not your honor he was given permission to go and seek medical attention by miss kramer on his way to seek his medical attention and other supervisor mr don hansen confronted him and asked for a doctor's note and response mr goes testified that he said i don't know if i can make it safely to the hospital to get cheap enough so he did not refuse to get a note he was explaining to mr henson that he needed to go to the hospital of his high blood pressure and his loss of fish and mr henson is badgering him for a doctor's note and his response says i don't know if i can make it safely to the hospital to get to the node so he never refused to produce a note he was explaining to mr henson that he's trying to get treatment and he doesn't know he can make it safely it was the only time that he was requested by the note that was the only time that he was requested to provide a note as he was trying to seek medical treatment for his hypertension he had already been given permission by ms kramer to go and seek medical attention and then mr henson came and demanded an oath but he never i've been asked to produce any sort of no prior to that interaction well he'd only been on the job for about a month as i understand it and these absences had occurred before without a doctor's note and the story  that you've just related is partial doesn't tell the whole story of what happened after he initially refused to promise to bring a note  that for the three previous times he was absent he received permission prior to the absences from mr o'hara he called ahead of time and consistent with the a m s the employer's requirements that demands but as far as food and water what the screaming match was about that's highly disputed and the district court erred and not viewing the facts in the light most favorable to mr cocos because the  the birth of the story that mr henson gave is directly contradicted by the version that mr coe this case there's a material issue of disputed facts regarding that encounter and whether it was in fact insubordination especially in light of mr gogo says anxiety because he was losing pleasure and he was trying to get to the hospital he said in an anxious state there's also an element of his language communication english just as third language and so all of that plays into the totality of what happened in this one interaction w henson and testified that they were both moving so we do dispute the version of the encounter that mr hanssen gave well he didn't he didn't dispute that he himself raised his voice yelled swore and refused to supply a note he had  to deny that and did not so we can assume that those things occurred and what mr goh cited was once mr henson was raising his voice right that is what i suggested as there is a factual dispute get started it but once once it got started  he participated vigorously in refusing to supply a note swearing yelling and otherwise contributed to the escalation of the situation we dispute that he refused to produce and know it well he didn't dispute that in  his response to the statement of facts he could have but he did not so we take that as an admission and i believe and in our statement of facts he said that he said he could not say he didn't know he could stately go there he wasn't saying client's response to the defendant statement of facts he had the opportunity to deny that he refused to supply the note that he was yelling swearing etc and he never denied any of those things he just said supports that he was ever warned about being absent or given any oral or written warnings well there were a couple of different reasons given including one that was given at your client's request right he has hypertension is losing his vision he's already been given permission to go and seek medical attention and he's been prevented by mr hanson mr hanson testified that he never asked why he was going none of the agents of a m s ever followed up to ask why he needs to go to the hospital or to see if he did in fact have a disability that may have been needed and accommodation well that's what the doctors know would have a gun is that interactive process without the doctor's notes you can't have an interactive process and he was terminated before he even had the chance to bring in i don't write that this gets back to my earlier line of questioning if he refused to supplied the doctor's note as part of this confrontation and you know we don't even get to the question about interactive process and i understand but in the light most favorable to mr go those a reasonable jury could find that in this anxious state in this heightened state that he was trying to explain to mr henson first i need to go to the doctor because i'm losing my passion i have high blood pressure i'm in there for my life this was not a time for mr henson to initiate the same counterparts and in a screaming match with someone who's an anxious a there's a language barrier here and mr gold goes to speeds that he refused to proffer a no he just said he good morning me a piece of court the name is brian doherty representing him as mechanical systems inc issue in this case is pretty straightforward and that is whether if everything else had been the same but that mr go go's did not suffer from his alleged disability would h been terminated and based on mr goebbels his own testimony in his deposition that is the case in his deposition he has he said quote you cannot fire h two a day later on to mr hans quote i'm not giving you my badge because the badge doesn't belong to you it belongs to b p page two eighty nine it was referencing the b p security badge that you floyd needed to enter and exit the premises again you cannot fire me page two ninety even cite those statements by mr go go's he then told mr hanssen quote stop screaming i recorded everything with my cell phone well this is problematic policies written policies that were given to mr go go's it was prohibited to bring cell phones into the work site because it was a safety issue as you saw one incident to it is all one insert your honor that occurred was maybe about  minute confrontation between mr go go sinister hansen than as mr henson oist attempting to extract himself from the confrontation as he turned his back and walked away mr go go's grabbed him by the shoulder attempted to spin him back around to talk to mr hanson that fact in and of itself was not disputed at the summary judgment stage that fact alone is enough for terminations now when you look at m response that he indicated at this point in time you are terminated now when you measure that against him s employment policies clearly state forms of misconduct one of which is insubordination we have admissions in the record from m go's that he was in supported comes right from his deposition another instance of misconduct that would warrant discipline including termination is manhandling another employee in this case you have the admission by mr go go's that he grabbed the general foreman at the work site attempted to spin him around in the way of where is said mission that is contained believe it is paragraph of mr grove was his response to the statement of facts when he put his hands on mr henson and that fact was denied but there was no citation in the record nothing in the deposition nothing by way of contract affidavit to deny that fact based on local rule fifty six point one that fact would stand as admitted now even aside from misconduct there is no way that mr goebbels could have been terminated absences is established law that just because an employee misses work on prior occasions does not mean that that employee is suffering from a disability employee's missed work all the times for ailments for other personal reasons it's not a reasonable in henson at this point was aware prior absences in mind at the bottom of this because it was unprecedented pointing to mr henson that employees would be leaving work periodical e and he not why now that why is that important in the context of this case a mechanical contractor employing welders and pipe fitters at the b p refinery it's common knowledge that fire in oil do not mix safety was of paramount importance at the job site that was so important than a daily the welders and pipe fitters met in an enclosed structure before the work day started where they discussed safety with the foreman the general form an informant also discussed c d f the one at the work site  welders are paired with one another at the work site as one while there is doing the work the other welder is watching the safety of the work site so if mr henson had some type of medical condition that would impair his ability to do his job or observe the safety of another well the at the work site mr henson needed to know why not only that the mr henson was also concerned with try to to be at the job site which is why he wanted to get to the bottom mr and mr goebbels his absences but hasn't complained  news is correct and even after mr goes was terminated by mr henson mr goes then went to the b p clinic because mr hanson saw that he needed medical attention and rated tween what b p saw and also what mr henson observed now the personal change forms that were mentioned mr henson explain why he found played mr gold with his conduct these are union brothers they stick together the brotherhood comes first then the employer second he didn't want to ruin mr goble his chances of future employment and you if you put down insubordination could possibly come back to haunt mr gold its chances for a future plan so he put down other absences tardiness for which he did not fully understand the reasons why so that is easily explainable testimony was not impeached anywhere on the second form that was supplied to mr goes ahead reduction force he solicited that form h court granted summary judgment was that mr henson did not have any knowledge at all that mr goggles had a disability or needed accommodation in the construing the facts in the light most favorable to mr goble as the non movement a reasonable jury