let's the pack your honour's this is a case about a medical doctor dr murray who is both a doctor and a soldier who put his own mental and physical safety at risk for our country he is the exactly the person who should be protected for whom the a d a s and usera were enacted to protect and yet somehow they didn't protect him he comes back from his active duty and he is terminated from his employment for reasons that are related both to his service and to the resultin is not but that's the point your honor that's the if we're talking of we're talking about the sarah claim the issue is what was the motivating factor worth there  persons who made the decision to terminate dr marie motivated by anti military bias judge logan says no that they weren't but he was weighing the evidence and if you read the order on the summary judgment it's replete with conclusory statements observations judgment calls on the sufficiency of the evidence now you can the sufficiency of the evidence but in there but then i didn't see any e mails like that after he returned in november well they didn't not specifically but you got a few got a three month period so you got it you've got this period of well over a year two years where hospital well they were but he wasn't there there's a suggestion and i don't know how well this was fleshed out in the record but there's a suggestion that he had volunteered for military service it's not that he just did he wasn't there or if he had just decided to take up to take off they would have had to hold a job for the frustration was he's off being a soldier and we have to sweet have to save a position so there's frustration so that's that's number one thank does it affect your position that a prior employee a nurse who also would've been in the operating room under circumstances but in any case was fired for similar actions for also displaying what  can be described as anger or otherwise inappropriate behavior at the hospital well for one thing that that leads directly to the claim because the the anger management in this is also the well it does but if we're talking about you sarah if on this you would like to abandon that but if we're talking about you sara when you say it's his military record it was a motivating factor i think the hospital the defense believes it's proven it would have taken the same action regardless of that service and i'm asking what about this past well employee that was also terminated for similar circumstances the problem with your honor's that there were there was no trial the judge the judge the district judge found that they were the incident the facts the insult were hotly contested and he goes on to go through it analyzing the facts in a way that clearly shows a weighing of evidence so that's what the court said that this would have happened in any event but those are inferences and the problem is this is a summary judgment case and the facts are to be construed in the light most favorable to the nonmoving party which when you read the the order it's very clear that is not what the district court did and inferences have to be drawn in favor of the nonmoving party all reasonable inference after  with the most important your honor is dr crohn statement we can't have someone working here who has anger management problems and that is a direct comment on his p t s d symptoms which are consequence of the military service and there is evidence in the record to so show that she knew that the defendant's tonight defense no no no she didn't she didn't learn about the p t s d from his f m l a paperwork performance of service application for service or applications so how do i how do i read this as as applying to what he he is the perception i guess of p t s someone if someone goes off to serve in the military back with a condition that is a direct result of his military service there is a there is a nexus a logical nexus between the pete p t s d and the military service tavern bar nightclub record high they've been doing that for years they go military service and a bomb goes off and they are injured in a way so they can no longer use their hands to play piano and then they get fired from that shop and this is that you sarah i think it is your i don't think i don't think that person can be necessarily expected to perform the same duties if if if the piano player is physically unable to play piano it would be ridiculous to say you can't you must the piano but he could be given a job teaching he could be given a job conducting he could be given other duties because you sarah protects against terminations it wouldn't be cause for terminations and certainly issue on the standard of proof for status based claims under the americans with disability act is and should be motivating factor  now the argument is that because of the sar case and the gross case that that has been overruled implicitly and the both the th circuit causation that that's that's the head versus glacier case in nisar the court decides that because of the difference in the in the text retaliation claims are treated differently than status base claims and retaliation wasn't covered by what is it two thousand each two am and neither is disability rights so that nasser says congress intended two thousand  dashed to ams motivating factor standard to apply only the actions based on race color religion sex and actual origin therefore nasser concluded it doesn't apply to retaliation claims but it also doesn't include disability because of disability and that because is the word that is concentrated on in the sar the court says because means logical but for and there is a significant amount of discussion in the in the in the majority opinion and of course judge ginsburg and dissent points out well you're creating this this distinction where status face safeco insurance company it's because of means based on and based on indicates a for causal relationship so so it was it seemed to me that the difference between on the basis of and based on that's missing and again that gets to the use of different terms here and that is soley by if because means soley on the basis of that it that it can be harmonized but because and on the basis of good morning your honour's john lomax may please the court for the mayo police dr murray pursued three statute claims under three separate statutes in this case but the underlying facts were simple in the operating room as dr murray himself testified at deposition he grabbed dr chen pulled pushed him into an i v pool hall and yell and screamed at him till he left the operating dr murray also testified that he knew mayo clinic arizona had a zero tolerance policy and that others had been or a c r nay had been terminated for violation of that policy i point to those because there is no joint genuine issue of material fact about those and they satisfy the two elements that may have needed to prove to establish that had cause to terminate dr murray under the four th was appropriate on count two turning to count one the parties brief the license factors of circumstantial evidence and i want to respond to a question that the court raised about o comment that opposing counsel raised about whether the judge logan in this case was weighing the evidence before in reaching its conclusion what i see in the court's  is an earnest effort by federal district court judges to sift through the record and indemnify whether there was a genuine issue of material fact one example might highlight that in the court's order he said the doctor bright he found his account of the court said the doctor brights account had been the most compelling but what the district court understood by reviewing the record was dr murray in his controverted statement of facts had admitted those facts venue to pursue a p t s d claim but it's not under you sarah i also highlight a court something and a decision made by the district court that was not a appealed in this case in early briefing in the case on a motion to that count the court granted it early on in the case citing the holmes decision and that put decision was not appeal so i think it's not only are there no cases going the other way it's an insufficient basis to could i ask this is jumping around a bit but i have a concern about the district court's failure to give an instruction on subordinate bias on the cats high issue can you address establish the facts or the law that he needed to get the standard and it wasn't necessary if in the final jury instructions jury instruction number seven which is available i think it i don't have  argued that she acted outside the scope of her agency that instruction was certainly sufficient for them to advance their theory and if you look at the closing argument made by opposing counsel in this case all the theories that he advances about dr crohn's purported alleged discriminatory motive the fact that she was involved in every stage he made those arguments and you had the instruction that allowed it so the hear the instruction in the was sufficient there's also a legal issue a p combine the f in a way and a t a i into one instruction dr murray did when he requested that instruction the f m a way interference claim here is not an intentional discrimination claim so the no basis and there's no authority from any court that it is a proper basis that the loo l r u versus amway and the batchelder cases from this court have said that interference claims or non discrimination point to any laws justifying the application moreover as i pointed out jury instruction number seven was sufficient for what was needed to present his case to the jury but before you go online at think you're arguing it wasn't necessary for the f jury instructions not proper as today da your honor he didn't cite any law in the district court justifying the application while there is obviously that's an intentional discrimination claim our position is that jury instruction number seven was sufficient for what he needed to advance his claims and a review of the closing argument compared to his reply brief in the appellate court shows that he made all the arguments see he wanted to may act closing in the jury simply did not accept his invitation this falls under the heading of jumping around his book can you talk with me a bit about the evidence here e decisions it's not clear whether or not the judges mate for three fifteen and he had a mere suspicion so it doesn't even hit the relevance standard under the federal rules of evidence because there was no pro that evidence that would link that back to  the events in the operating room in two thousand and fourteen it also fails all four stand off the all four steps under the lloyd test for for a for be evidence for subsequent bad acts it was remote in time and it was and there was no personal knowledge even from dr treatment that dr chen or anyone else could testify about as to whether dr chen had been using improperly anesthetics before november of two thousand and fifteen moreover there was no similarity to events that's the dr chen question i think your question also went to the the other evidence cherry issue watch was the thirteen at that time there was no issue as it related to the f m l a leaf or any issue that mayo was on notice that dr murray might have some disability those issues did not arise until after the operating of room incident in february two thousand and fourteen so it's hard to argue probative value of those e mails because they simply just didn't relate and they don't in fact refer to  i want to turn to the standard as noted in our briefing it's our belief that the supreme court decisions in gross and nasser effectively over head decision counsel noted that the th circuit has twice considered head and referenced heads holding in subsequent decisions even after nasser i want to be clear issue at this point is it unfair to characterize our earlier ruling in head as being one that was largely just in capsulated in one paragraph that said two things were following this sister circuits and art prior to precedent meaning there were there was no detailed analysis of the sort that could be useful in billy d finding whether or not there is but in one paragraph it simply says when describing its ruling for using the motivating factor as standard we agree with our sister circuit said a motivating factor standard is most consistent and then there are some citations to hernandez and sneak and then the next sentence of importance enough to read now is we therefore hold that eighty out eighty outlaws adverse employment decisions motivated even in part and  it's an analysis for sure but maybe a lighter one than necessary to make a firm decision it or not it's clearly irreconcilable with gross and  any doubt that it's clearly irreconcilable but i think when you look at the head decision and i'm familiar with the footnote it has a laundry list of circuits many of whom i've since reversed their position on this very issue in light of gross and had the court really what it was doing was doing two things one the head court was deciding whether the soli standard on the rehabilitation actually govern the  rejected that standard and the head court was also considering whether we should draw on the title seven standard of motivating factor and then they looked to the sister circuits and concluded that they could of course the problem with that under gross nasser's are importing seven o three two m the motivating factor language of title seven and both grass gross and nasser says you cannot grow says you can't do  disability request for an accommodation a motivating factor standard citing head versus glacier northwest and then it says abrogated on other grounds by university of texas office medical center versus nasser so that that at least is an indication that some judges of this court believe that the head has survived the supreme court decisions and nasser and gross and again michael murray versus mayo clinic