she can introduce herself when she gets all right with members of the court our arguments for pretty cut and dried on this and they really come down to just basic what we construe as legal errors with respect to discrimination does disability discrimination claim simply put the lower court applied the incorrect standard for what constitutes a limitation on a major life activity and that life activity in this case was plaintiff's job smith's job the court explicitly said that if the question is is that enough to simply say it's affecting my job i think what the judge also was asking for once more a little clearer articulation of the basis for causation the linkage between the medical diagnosis and the inability to do the work and he gave he gave you the opportunity or gave the client the opportunity to him and the complaint and he didn't get much in return so i guess the question is how much more are you prepared to offer there are actually the first rendition of the complaint which was filed by the prior council was strictly barebones and the court definitely had every reason and didn't fact state two things he said i want to see a complaint that shows what her actual disabilities are because none of them are stated in the original complaint and second in need to say what the major life activities are that are affected right and i came on board at that point drafted up in the tire one page paragraph that spelled out five or six diagnosed medical conditions that respond to the first deficiency and then i further laid out for five life excuse me major life activities most significantly work my bill i see is that your complaint even as amended didn't tie the two together however in other words the judge expected and did not get any allegation of how the plaintiffs disability affected the major life activity and so without that found that there was an implausible claim dismissed it well and this gets back also though to the basis for the court's order that after that first amended complaint was submitted it was not at all  contested based on these claims the plausibility factor that judge murphy just reached referred to in fact the defendant submitted to the a motion to amend the complaint without argument they accepted it and then when they did apply a subsequent or file a subsequent motion dismissed had nothing to do with the sufficiency of the pleadings under twamley it was based on completely different argument which was that there was a letter attached the original complaint constituting the reasons for the dismissal and because it was attached it should be construed as an admission that the statements the reasons given for the dismissal her for germination rather were true accounts i guess it appeared to me that we're concerned judge also was the employer did make accommodations by allowing your client to work from home and only work you know so many  hours or portions of the work week and what i don't see in the complaint is any explanation of why the medical diagnoses prevented her from even working at home there is nothing that says i can't sit at my computer console for more than fifteen minutes without having to take a break the kind of thing that we typically see in social security cases when we're trying to determine disability and there's nothing there to share actually sa be i'm sorry or that she could work from home but the choose deny that accommodation later so the problem the problem wasn't asked of the doctor issued a note that said you're cleared to return to work is the right i don't know if that was alleged in the complain that affected her neurological system so on one of the limitations was that she couldn't move her head or her neck and in fact judge also acknowledged that when he said ok i get it she's got pain and she can't move her neck and and she can't move her head but that just makes it more difficult to do her job it doesn't show that she is unable to do her job or prevented from doing her job and difficulty is exactly the standard that applies here and that's what the court  essential element that was missing but how much how hard is that to simply say that as a result of you know this pain i can't sit i can't concentrate i can't type on a keyboard there's nothing like that it's not difficult your honor at all and again if if the arguments against the complaint had to address that rather than address any aspect of the pleading because again we satisfied what was  which we did we spelled them out we listed five or six of them and asked to particularize the major life activities that were affected and again those are what i'm looking at five and you are six which is the district court order in which he recites the fact that her medical symptoms caused her pain or related chronic pain but then he says in mere conclusion refashion smith alleges her disability limited her major life activities including working walking head and neck mobility and physical exercise smith is obliged to allege facts explaining how her pain prevented her from performing her employment duties to establish she has a prime a disability and just saying that i have pain and limited mobility are not enough for me to make a plausible inference that she's unable to do our job and has a qualified disability which is an essential element to all of her claims so where did the district court go wrong well that we missed i miss we had different target chasen's of what the court said in our five because i focused and apparently he focused on thought construed as a requirement that the pain and the limited head neck neck mobility had had to have prevented her from doing her job and had to have made her an able to do her job so i see this orders is that which was trying to allege i mean was she basically saying look as a result of all this i just can't do the work in any way shape or no she was just alleging what the what the law and what the cause of action fired that it made it more difficult at mit limited her ability to do it judge also it was saying that's not enough that will lead to show that it prevented her from doing her job and she was unable to do her job and the case the judge also cited said quite the opposite said you don't need to show  is is enough making it difficult is synonymous with a limitation that is exactly what the statute says that's not my interpretation of is it your position that if an employer accommodate an injured employee by permitting them to do light duty or to work from home that that is nonetheless a complete disability for which the employer is liable for damages under know you are but that wasn't again  pleading issue before it was before the court and i'm asking i'm just trying to take your argument to its logical extreme and see how far you're going to run with it ok now and i think that accommodation is a separate issue she could have and she still lives that she could have worked with accommodations the l to work from home but she wasn't permitted to work from home when she came back was for some period of her some period of time when she came back and she said i want to continue to be able work from home she contends her employer said no we can't allow you to do that with your absence parchment on behalf of defendant constellation brands your honor in her first complaint the plaintiff alleged merely that she had a disability judge also dismissed that complain and he had ma mr to plead her best case the first element of a claim for disability discrimination is that the individual has a disability and the definition of that is th a major life activity no your honor the amended complaint did allege that she had medical conditions what it did not allege with any factual basis is that she was limited in a medical conditions in that major life it timothy is your opponent correct when he says that your motion to dismiss did not address the pleading issue but simply went to the merits that's not  us in the beginning of the motion we did talk about the fact that plaintiff had not adequately pled this cause of action this that when the judge the judge looked at the term limited referred to the r t a good case which says that it's not enough to plead that you have a medical condition it's not enough that you plead that you have pain which the alleges she has pain but that's a subjective term and it's quite variable that she didn't allege any facts to support how that pain limited her in those major life activities that she listed including working i'm not sure you got to judge hawkins question but you should but but your  just so that all right judge also cited already a go for the proposition that for pain to rise to the level of disability there must be some quote corresponding limitation on activity and you in your briefing in here today are using nad to argue that there has to be a connection between the pain and the major life activity in your poem says it's not true at all he seems to indicate that the case as well as leather very doesn't impose such a pleading requirement in terms of of a connection well your honor neither of those cases were pleading  cases but i think it's clear under it that a plane if he has to plead specific facts to support an allegation so in this case she she pl business they are an alcoholic beverage supplier your honor so rich requires lots of loading of heavy stuff is that this the plaintiff's position was as a senior financial accountant an accommodation injury she did your honor was the accommodation she requested a leave of absence beginning in december of two thousand and fourteen she began her job in october two thousand and fourteen she requested a leave of absence in december which was granted it's the only accommodation she know and that leave was extended multiple times until march when her doctor released her to return to work on a part time basis and request to mco job accommodation at that that was the accommodation was to work on a part time basis and that request was granted she appeared one day and did not return to work for the company waited ten days or two weeks and then terminated her employment  moving on to wrongful discharge claim so plaintiff has played a claim for wrongful discharge in violation of public policy some of that is based on her disability discrimination claim which will rise or fall with her disability discrimination statutory claim the other portion of it is based on california labor code section two thirty two point five which states that in employer may not about financial operations about working conditions it was about the fact that she believed that the job was not what was represented to her when she was hired and judge also up ruled that those conversations were mere grousing in the workplace but they didn't rise to the level of a disclosure this sounds like the kind of exchange we would have if you had prevailed on a motion for s judgment what does this have to do with the pleading inadequacy so the judge to determined that the pleading the allegations alleged didn't rise to the level of exactly right really wrong well i think if it allegations don't support a claim that it is right for the pleadings i would also contend that the allegations to the extent that these were co relations act and that says there is a california case that address this issue straight on which is loop versus collar type labels where plaintiff brought a labor code section to thirty two point five claim and the court found  was preempted under section seven  finally your honor we do not believe that it was an abuse of discretion for judge also to deny plaintiff another opportunity to amend the complaint a judge has particularly broad just briefly to revisit the actual motion to dismiss on which the order was issued counsel said that they did address the pleading issue and that's technically correct but not on the twamley basis they actually argued that we too much and when we allege it affected a major life activity and that your conditions were disabling we also added the statutory language that they were also potentially disabling and there were also potential major life activities affected in addition to this it isn't the problem of the district court had here and i think i'm i'm sympathetic to it the supreme court has told us in ball twamley and follow on cases that it's not enough to simply track the language of the statute or the elements of the cause of action and then conclude the defendant is liable you've got to flesh it out with something more than simply  the legal requirement no question your honor and that's what our amended can amended paragraph eight did seven or eight i'm not sure which one it was now but again we added else a page of allegations with specificity the specificity of the conditions themselves none of which existed before and the major life activities affected none of which existed before when the motion is made the argument is made well they also added in addition to major life activities potentially the language potentially and potentially is in the statute so they weren't contesting what was actually allege they were contesting that potentially isn't isn't enough when in fact the statute says it is so they're alleging we are there are going to allege too much there but it wasn't a the argument it wasn't an argument that we don't know what the pleadings about we can't formulate a response to it and yes i am still puzzled by her inability and i don't think it would have taken  but her inability to explain the correlation between the disability and her inability to work as a senior financial analyst which sounds to me like a pretty sedentary job that we're under then let me just get to the last point which is the amendment issue because again as i guess counsel new counsel coming in i have to go with the motion i'm dealt with and again that motion did not argue twamley arguments it did the first time they were satisfied the motion to men was made not not contested as all ok that was their opportunity to say hey these amendments don't they don't they don't work they don't they're not sufficient this amendment doesn't cure the problem and said they submitted on it and then they made a completely different argument about extrinsic evidence something attached to the document that's what we responded to now obviously judged also can basis decision whatever he thinks is appropriate appropriate but from our standpoint we didn't have the believe subject is that it's a yeah but we were we were led to believe the twamley there was no no longer a trolley issue because it wasn't raised by the defendants they expect i think i think we understand your position to let you run have of course one question if you can answer with the yes or no please tell me once judge you also issued his opinion did you move for reconsideration i did not move for consideration answers no no