it we asked this court to reverse the grant of summary judgment and send it back to the court below and then was employed by c n n h is implemented began male prior to the events that led to his termination he had a relatively uneventful time there it wasn't somebody who gave them too many problems but there was an incident that was complained that led to the eventual terminations of and which was when his way to work he had broken down his cock broken i mean when his guy broke down below freezing temperatures he tried to get somebody to come out there and pick him up one of anybody he called feverish and he finally was able to get a hold of juan hourly employee who upon hearing the distress in his voice decided to come out and became up when the employee got there and it's car wouldn't start so the employee suggested maybe we should get you some gas and he said ok fine they got the gas and the car started so an out and was able to return to walk when he got back to walk it was talked to about the situation by least one supervisor it wasn't clear that there was any problem at this point he simply explained that he broke down and he did what was in his best judgment to do to trying to get back to walk so is post w unintended so i thought talking to him about this situation he wasn't aware that there was any problem he just continued working eventually mr and in became sick he became requested leave when he took his leave while he was gone for reasons that were stated by c n n h did decided to terminate and while he was away and then filed his complaint due to the all lawful terminations and that's where we have ourselves now you know on us with thirty issue about when they made that decision yes yonder there was an issue they claimed that they made a decision around november the nineteenth and would do the week was that you know november the nineteenth would however do we need you to check out been sick he left around the nineteenth also and guess what i'm trying to figure out it's as i understand and that was about the same time they announced the termination is that wrong that's not exactly correct on and it is not what is the timing there announce the terminations see him by writing him the letter that was dated december one but when you look at the record your honor there's no mention either by email or anything that we can see that was generated at the time of the state to show that germination was even contemplated before december one first time we see termination is that december one of that would you think then the termination was based on his taking basic h had specifically they felt like he didn't take the right level of responsibility when it can to a previous incident i believe in two thousand and fifteen with the radio and then the incident that's now been complained of it with a car breaking down so that combined with his request for leave is what and it of making them participated in the program general practice at that building was that supervisors were allowed to have their subordinate employees come in with them so long as the supervisor slides his badge on entry so if a supervisor was quote unquote taking responsibility for that hourly employee and this was a policy that did not res anybody having any adverse action taken against them there's somebody monitor that i meet and sometimes like when we come in here they let judges in without having to use occurred because it's nuclear is that what was going on or is it really employees from my understanding where they are employees parked their cars was quite some distance from where chavez and entered into a shabbas went to help and out so rather than require and rather than and require chavez to walk all the way around the building to the other entrance he thought it best for them to go ahead and enter into gather expression only considering that the practice at that building allowed it nobody had ever been warned all punished ford before so and  supervisor didn't see anything wrong with it so counselled the you say that there were two main reasons that mr annan was fired one that you believe based upon the timing of the letter was because he asked for leave but you also say that they fired him because they want satisfied i think those are your words with what the record with the way he addressed these issues when they were brought to his attention in that november i believe seventeenth meeting right if and there's certainly nothing in permissible about their firing him for the for that reason right if they wanted to fire him because they believed that he wasn't meeting he wasn't running up to the various areas that they thought he committed that's not a violation of title seven or it the eighty eight and if that is one of the motives then as long as it's one of the reasons for his it reason for them to fire him if they are put off by the way he responded that doesn't have anything to do with the legitimate acts they're legitimate expectation of an employer with respect to the employee's duties which is what we're looking at but you know we're it's not it's not our role to decide whether or not the firing was a prudent decision or  a reasonable decision right are what we're looking at is whether or not he was fired for some impermissible purpose and it seems to me that if the with what you're saying is one of the reasons why the employers fired him was because they weren't satisfied that he was taking responsibility for his role as a supervisory role that we might disagree with that given the circumstances involved here he was stranded in and out without a car it was very cold out it might not be a wise decision but that itself would necessarily trigger a title seven or an eighty eight claim right understood your honor respectfully if we look at their dissatisfaction with his response in light of him also taking that f and the a leave what it tells us is that this is somebody who was fired for taking leave but he wasn't given any kind of leeway because they felt that the way he was acting wasn't good enough for them they felt that he should have at ted a little bit more contrite or even do something to go out along with how they were feeling about him at that time for them to give him any consideration but because he wasn't showing them that kind of emotional response then they discriminate against him for not only his disability but also because he chooses to exercise leave that's not allowed  if it was simply a case of him not taking responsibility and we fired you that's fine but that's not what happened here you know and they don't like his response so this age you know what  to keep this guy on the job and he after everything else has call to take leave while going to get rid of him and that's not permissible on that what is what makes his terminations on law for the fact that he had the right to exercise that and leave based on his disability and as soon as his lee was approved then they fired him he's not compelled to do so they are allowed for surgery ply brief which are circuit  responsibility still look at the evidence he's putting forward and decide whether or not it is missable evidence that was where the problem lies yon when there's no analysis done the district court does not meet its obligation to  and then in addition to these if it's not being looked at which we believe was definitely inappropriate we also take issue with the idea that mr and then he was trying to discredit the claims that came about in that december first letter what he was trying to do was offer evidence in a rebuttal to some of those claims these represent issues of fact they're material to not only the notice that sieved but also the reasons for the terminations he offered that evidence in rebuttal and that should also have been considered by the fact finder it wasn't appropriate to award summary judgment on that issue i see my time is up now my name is heather wilson and i represent the apple a c n n h industrial america the district court properly granted summary judgment in favor of c n n each because the admissible evidence shows that no reasonable jury could find for mean and on is still alive he is i i apologize here he is certainly still alive terminated his employment because he showed poor judgment he failed to take responsibility for his actions and he created a risk to an hourly employee safety furthermore the district court properly held that in and waived the issue of admissibility hundred certain exhibits by not filing a apply brief with respect to just a few facts if i could mike my opposing counsel to talk about a little bit about his employment was c n a which there was one particular  piece that he didn't address the civically and that was a warning that mr eaton had received in april two thousand and fourteen about six months prior to the decision to terminate his employment  in that time period mr green and got into a verbal altercation with a third shift supervisor mystery man who was working the second shift and so this was a supervisor that was working the next shift after ina over turning off the radio his behavior was witnessed by three other employees including two of his second shift our only employees and mr lewis his supervisor at that time  dressed this issue and he received a written warning for that and he signed that written mourning and a part of that written warning said as follows you you as a leader on your team should lead by example and allowing an argument to occur in front of your employees is unacceptable behavior you are expected to work as a team we can all agree to disagree but at no point should you get into a verbal altercation with your post worker if at any time you need to address an issue you should work with your manager to ensure it's dealt with appropriately versus taking it into your own hands you are in a leadership position and behavior like this is not acceptable so mr enon had been virtually warning counsel by his direct supervisor but it was witnessed by i individuals that did report to mr heenan when it was brought to mr lewis's attention so then you fast forward to the november timeframe and  november i believe it was seventeen mr enon called mr lew us and reached him and he told mr lewis that his car had broken down on the way to work and he would be running late and at that time mr ingham testified that he was about five minutes away from the c n n each facility in lebanon indiana and at approximately two fifty three that same day mr king advised mr lewis that he was at work so m ingham was supposed to report to work at two pm that's when his ship started it was a two to ten thirty pm shift so on tuesday the next day nov eighteenth mrs darlington who is the director for the human resource manager excuse me for c n a each received a report that mr mina had called an hour early second shift employee mr chavez and ask him to leave work to bring in some gas but to stay on the clock and be supervising in his absence so ms garland decided she needed to investigate that report and so she did confirm because she has access to when people clock you know then clock out she confirmed that chavez had clocked in that day on the seventeenth at one forty four pm so just about approximately sixteen minutes before his shift was supposed to start and then  but he did it he swiped out of the employee entrance too but he didn't clock back in and he didn't badge back into the building so ms darlin after talking with both gentleman that happened on the nineteenth of november so the day after the eighteenth that this was brought to her attention she talks with both of them and then she and mr lincoln and mr lewis who were also in these interviews stayed after and decided based on the fact that  called his hourly employee out to help him on a personal issue leaving the floor without any sort of manager to make sure that it was running correctly and that he had also allowed him to what we call piggybacked into the facility using only and he had not gone back and corrected mr chavez's time he's an hourly employee so he gets paid for the time that he works and it showed that he was approximately away from the facility for about forty five minutes and it was mr keenan's responsibility as his manager to make sure that that  that his time was was correct so for all of those reasons they also looked at the written warning that he had received six months before showing similar kinds of lack of leadership and judgment the decision was made that day to terminate mr employment and the idea was that they were going to go into the correct your honor and the and the decision was made that day and they also decided they would let him know the following day the problem was that mr bean and did not report back to work after the nineteenth and so they were able to have that meeting so mr  or ms darling and then on the twentieth so the day after the decision was made to terminate him they received notice that mr green and has called prevention and requested leave and so they didn't reach out to him at that point and it was only after they received notice as to when he was going to be approved for short term disability which was december one they reached out to him they felt like they needed to communicate the terminations and that's from the start and it's in the letter of december first and in the letter which is in the record she specifically says that the decision was made on no november nineteenth and outlines the various reasons why he was terminated for that for those reasons so the record is good it's clear that when the decision was made by this group that did the investigation into mr mintz conduct now mr in would like to maybe question that but there is no admissible evidence before this court that suggests that that is not what occurred and we have go ahead and have short term disability i think his short term disability was approved through december fourteenth and so they allowed him to have all of those benefits which they didn't have to do so yes they  did receive all the benefits that he was entitled to under the short term disability plan through seeing with regard to one of the exhibits that i understand your position is that mr union waived any to stephen lincoln and i'm trying to understand what exactly that document is it's see below it looks like his return date will be next monday and the e mail is dated december one what did ms garland mean when he said his return date will be next monday that she mean his return to work that is and would that be sufficient to create inference that  he had been fired as of december first so i'm trying to stand what exactly ms darlene meant by that statement yeah i don't think i mean i don't think that this exhibit your honor should be used to show an in had not been made i think that she was just if i'm right and i'm looking at it right now i believe that this is an email looks like regarding the short term disability coverage and i think she was just pointing out to mr lincoln and mr lew was about the short term disability decision so i don't think that there's anything to suggest that the me you know that that the decision had been made so the return date is reference thing is the return date though it doesn't aided by the short term disability administrator exactly your honor for the things i've already mentioned that happened in april and then also the november incident he also cannot point to anyone who was similarly situated to him that was treated more favorably  and then finally and i think probably most importantly he can't show that c n n has legitimate nondiscriminatory reason was somehow a pretext you know he will disagree certainly as to our reasons but that's a very high threshold as the sport knows he has to show basically it is it was a lie and that c an h did not honestly believe the reasons for the terminations with respect to the a discrimination claim just to pick up on something judge we mentioned that that burden is a but for standard based on the so what a case and so mr in and has to show that his disability his alleged disability was the but for reason for his terminations and you've heard today that there certainly it there was an admission that there were other reasons for that terminations so i think that was fatal to his claim there's also an argument that the district court agreed with that he was not even disabled mr and own testimony he stated that he became disabled when he had his surgery while the surgery did not occur until after  decision was made to terminate his employment so he was not disabled at the time of his term a nation and we've cited in our brief and his testimony to suggest that he wasn't disable it and when he had his surgery given that he was limited for such a short period of time for example couldn't play soccer or have sex for one month or and it affected his bowel movements for one month so we don't believe that mr union is even proven that he is disabled under the statute with respect to the failure to accommodate clane mr green was given every leave that he would he asked for he never asked for any other type of accommodation i think mr and argument is somehow we should have forgiven as an accommodation for his acts that occurred on november seventeenth and that's not what an eighty a failure to accommodate plane is about and then finally the f m l a claim there's two pieces of that the interference and the retaliation the interference we gave him every f m l a leave that he requested and he can't show again for the reasons i've already stated that his f m l a he was retaliated against for taking his ethanol like we didn't even know that he requested that until the day after the decision was made to terminate him finally there's three claims that mr in and sort of h his brief the section one thousand eighty five eighty six and negligent supervision he doesn't cite any statute or testimony to support those and so we think they're just record you shift from the district court and branch of summary judgment on