let me it was never my intention other than responding to your questions to take my full time but you know this is maybe as an old man as i get older and years litigation i believe people should every day in court and our courts over the years frown on some of losing their right to be heard before a jury of their peers and there are two competing points of view in this case the plate of apparently was a star until he falls down he gets hurt in two thousand and ten they say he was disruptive and insubordinate and that's why they terminated him and when i look at the case i mean is there is there not a genuine issue of material fact regarding at least his terminations there are a number of issues that we raise and for example i mean the plaintiff obviously he's dramatically injured at least he's out for a long says it's because you're not before you fall asleep on the job and other things occurred like that so tell me what evidence there is that the that their firing was a pretext for for disability just going to one of the things they do east i mean  man's working graveyard apparently from his doctor the man needs to get some sleep and some get some rest so heals a little bit quicker she wants to go on this one shift this way you can call this week shift because you have to walk up and down you have inclines you have to check doors there's so much work to do with the swing shift that we can't accommodate you because the people working on that shift are going to have to do your job that's the chain or so what do they do they hire a guy with  i'm not sure you've got a claim and here they're not putting them under swing shift was the disability discrimination but even if you did tell me focus on determination well i mean they truly have a say for being disruptive and they say they didn't follow there any but that's that's hard for me to see disability discrimination this is this is my my thought about that to litigate the case and i could be wrong i mean when you when you when you present this case depending on what if i get a chance to there's no conflict going to church when you get off on sunday he said only ever said to me was what if you start believing in god who still discussion about that if i take it i want to thank you for your question but it was a proper question for me to try to answer if we take it in a vacuum how should pretextual why the firing why focus on disability yes yes ok is under civility because i think you've got other problems with the religious discrimination going so focus on to the swimming pool where there are there's a hassock and he puts his foot up there and they say he fell asleep during work hours usually about you said i could sleep during my lunch hour if i take it as i said in a vacuum i'm in trouble because if you peel away the know we just look at the terminations for the reasons they gave and we don't bring in the collateral issues that they did to this man that seemed to show or tend to show some bunch of baloney about the reason they gave for termination we say was protection and we say it was discriminatory and that's why he got fired if i have to do it in a vacuum of done and i would in this case because i'm left with a sliver of evidence before the trial effect and the pending on how the case if you believe that that there is a genuine material issue of fact to something anything and i get a chance to go back to a trial court and if i want to get limited out about certain things i'm in serious trouble i'm going to beg of the civil case but if i take it in the vacuum that you suggest that i answer today i got problems i think i have to look at the totality of the evidence and the reasonable inferences to be drawn from that evidence to see whether or not this was protecti and whether or reason for this moment and you can you can you address the statute of limitations which well ford didn't address but it seems to me at least some of the claims are time are i think they are you know i  this is not it's kind of an apology i picked the file up tuesday haven't seen this file in years and i'm looking at the moving papers and i see we're not contesting summary judgment on five six and twelve and some of the claims apparently  because of all of the years i've been honored to be in court so just when i see someone who has a claim and a good faith they file a claim and they're denied their day i just think we need to at least reach out if we have a legal basis really good judge so i'm left with what i'm left with but i only know one way to try this case if i if i get in the door i can try to convince the court that there are surrounding circumstantial evidence that isn't simply go to them saying fact in dispute or survive a summary judgment and counsel conceded and as it was clear before the trial court the plaintiff actually is not this is viewed in the facts of the case as laid out by the defendants in its motion and also repeated in the answering why is there no dispute when maybe there isn't but the plaintiff says well yeah i did sleep on the job but other people did too were not disabled and they were fired i says other i didn't report this sexual incident right but other folks who are not disabled didn't report sexual didn't report similar incidents and they weren't fired that's pretexts has to be specific and substantial to survive summary judgment you can all legit people but you need to show with respect for example disability discrimination that there is a treatment different treatment between disabled or not but if it doesn't a specifically and he says i know it's his own declaration but right you say the facts aren't disputed which which surprises me a little but if they're not he says non disabled people who first the transfer to the swing shift i'm don't i'm focusing on termination now because that his strength and the lack of transference of a swing shift isn't doesn't show pretext to talk about terminations to me it may show there may be discrimination on that failure to transform focusing on termination the reason for germination was you're doing a lousy job you fall asleep on the job here you're confrontational and you you don't report incidents and he's always done to the three he says well i'm just the same as other non disabled people here who are not fired so focus on those for me i think what the issue is going to be you can think all ways i'm treated differently but in summary judgment you're required to identify the comparatives he identifies on named on a dime if i people who he presumes or asks the court to agree with him must be non disabled and must therefore prove discrimination the court in summary judgment requires more than just an assertion who is the person who is the comparative or who was sleeping on the job who you believe was not treated the same it was not subjected to disciplinary action how many how many security officers are there this complex that in this complex at the time they had about a dozen i believe and with three shifts doesn't make a difference  circumstances is it really necessary that he names the person i believe it is because if he's going to identify who they were for example and i understand you believe it's respect to the sw swing shift but one of the people who was on the night shift with him there was one at one point in time because we're talking about a two and a half year span was mr tom dexter tom who he said was disparate lee treated because he was allowed to transfer away from the night shift and he was not mr tom is also disabled according to plaintiff's own declaration you don't get disparate treatment by pointing to another disabled person and that's why coworker on the great shift although he doesn't specify and mr jones was i believe non disabled it's not in the record but what he was pointing out was that mr jones didn't get a raise when mr jones is non disabled if he didn't get a raise and mr turner did not get a raise again the comparison is there let me be clear my mind michel kind of this is that with respect to everything terminations your colleague has a hard time getting over that you know i'm just trying to focus on terminations for the moments because there are specific reasons given for the termination they're non pretextual facial right now the question is well are they real because you're treating me one way and other people on the other and again i believe in the area of pretext when you look at the mcdonnell douglas and we've cited the cases in our answering brief in the shifting burden of the burden of records of specific people or identifying them as non disabled which we would have been able to identify say that this you know this is not a true comparison or etc the fact is is that mr turner was subjected to two and a half years of progressive discipline for a course long period of time where up until he was terminated he never alleged discrimination in any of his points and he never said anything which is why we have a time our problem as we outlined in our answering brief and in the motion for summary judgment that time bar should do you think it's something we should address in the first instance because there's a series of challenges here i didn't get a bonus you refused to transfer me you fired me not all of them are time barred right through and the for the plaintiff has conceded are the ones that were within the timeframe are the only four that were left and terminations being at the tail end but when we're looking at all of the evidence over a period of time you can see that he was subjected to progressive discipline the record replete with documentation showing that he was given notice they counseled him they brought him in and they had subsequent progressive discipline to the point where they just could not take it anymore in terminal one of the record question for  there's a point in time when mr turner basically says i can't walk the entire you know i can't walk as long as the job apparently writer's me to walk and what he's told is well work it out on your own is that it does that occur outside three hundred a time bar and it i think it was there were two periods of time i remember one discussion with his doctors with respect to his is why they went back for clarification and actually doc that was at the very beginning of his time back right right when he returned from his workers compensation injury so that one would likely be barred even if there were some claim that you failed to sufficiently yet unless he could show that that particular condition worsened over time because under the e e o c guidelines and the regulations we have a continuing duty to engage in drug process right now was my question was or was or sufficient interactive process when he when he came back and said gee this isn't working very well yes your honor i think the record will show that they did go in constant communications which is why they documented with his with his doctors and he had to treating physicians so they had to go through both of them i do believe there was discussions about the type of chair that he would put his foot on which is another reason why they were going back in terms of how does he have to elevate his foot law in the final position came back he didn't have to elevate it higher than his heart and so those kinds of discussions you will also see in the record discussions about the p you know which is where all the security guards were banned from so constant you know when you got up early on you said this would be a different case if you had actually named the comparative hers i think it would provide us more specifics for the court i don't think you would change the case ok i'm on page ten forty one and the are ok paragraph twenty eight mr turner's declaration right other employees regularly slept on property but they were not suspended or written not deal eli rom all slept on property and reader and johnson knew this i was singled out due to my filing worker's comp claim requesting reasonable accommodations for my foot injury and them wanted to get rid of me just identified four employees who were not comparably treated i understand your honor i think that was swept up in the part of the time argument which is why we did not reach it in the motion because the sleeping on the job suspension occurred i think in their early part when he's returned to work but if we're trying to figure out  motivation i think this is relevant and if we've got a long sequence of events some of them outside the time and time vary from cause of action somewhere else and he's told you can't go there he does the pink slip routine which is not currently clear to me but he cleans it up makes it really good and as soon as that happens they take it away from him and make him do a walk in the otherwise wasn't going to when he's got a lot of things and when they give him this is when shift this is graveyard shift his previous graveyard shift had been from eleven at night to seven in the morning the graveyard shift they give it when it comes back is eleven twelve to eight well it sounds the same until you read his declarations as listen if i get off work at eight it takes me a long time to get home if i get off of seven i get home usually and everybody knows that the graveyard shift from eleven to seven yes a much better chef to me he's got lots of stuff in there all of which tends to show if believed that they just didn't like the guy and they were trying to get out him and that helps him i think when he says the reason for firing was protection this is just the culmination of this long sequence of events all of which were designed to punish me for coming back when i came back to see about how do you respond and that i respond to it is that that's his interpretation the question is whether or and he had produced evidence to show that those he hasn't produced evidence every bit of the thing i just described you as it is declaration so we have to treat that as true i think it requires more than his declaration he said before he had a name t that you can surely could have responded to that declaration by saying those folks are all disabled so and your honor all i can say is we carved in as you said he has two and a half years of incidents of which we have two and a half years of documentation showing legitimate nondiscriminatory reasons for each of the incidents and which is why we did the motion for summary judgment what all i can tell you in terms of the time bar and confine the remainder of the motion to the case claims that were life me me ask you a question about what the district judge said here and i share counsel's higher opinion  the district judge said something well your declaration was self serving just that matter aren't all declarations self serving no one would ever file a self defeating decoration with that understood but normally you would have i think there's a difference between making conclusions and just seeing all of this is discriminatory versus pointing out incidents where you believe that other people were treated differently  i think if you look at the totality of his declarations except with some exceptions they are primarily basically saying that this was all discriminatory i think part of the things that we found to be problematic was for example in the accommodation process which is one of the issues here in terms of failure to accommodate he just declared it to be unfair and the defendant tried to explain to the plaintiff to his two treating physicians at his attorney why the parties were required to go through the accommodation process and there were the less he refused all we can do is put that information before the judge make the argument that's w the right to set the second for an injury and the same approach was taken if you're looking at the totality of evidence if a cause if an employer were bound and determined to discipline someone and to get rid of him that they would take shorter than two and a half years the reality is is that he purposely actually and that's one of the things they pointed out in the terminations letter is that he went on this campaign of being disruptive and insubordinate to his manager and his supervisor and his behavior not withstanding what mister counsel says and mr turner claims in his declaration he was not a model employee prior to the injury and had in fact and that's part of the record in the motion for summary judgment he had been disruptive with his coworkers prior to the incident and continued and actually worsened so if you're going to take a long view and to give the ability to look in terms of the credibility issues the kid the it is just as probable and there's more credibility i believe in terms of the documentation the declaration and the sequence and that and let me run over i mean it may well be that mr turner's completely not credible but that's not our that's not our job here our job is to see whether or not he's put forth evidence which if believed would satisfy the standard and there's lots of things in this record at reading it called i would tend to agree with you he's going to if he goes back and gets a trial he's going to have a very difficult burden to hear the argument i mean it's just what i keep seeing is join you issues of material fact that should be decided i use the word circumstantial evidence if we get back about things that are trying hard but the word you use your honor was motivation and that's really the same thing what motivated them then that's stupid he's not going to come back after a leg injury or a fire in the first month he's got years in this job he gets his bonus if he gets a spanking he does everything they contacted his doctor took me a year to talk to dr birch about this condition i just think somebody should listen to the case we get an opportunity to or will argue the case for i thank you for your early thank thank both sides for your arguments