all right thank garland well funk start packaging one five dash five five five four seven three one five dash five six zero zero zero and you have fifteen minutes each side that i've been happy to talk about the other case but i would have known anything about what was going basically two main reasons the trial court grants a summary judgment must be overturned the first reason is that the lower court took all the evidence in the light most favorable to fargo on all the issues the existence of mr will finds disability his c f r a leaves the adverse employment actions and the causal connections between the two that's the first reason the second reason is the district court ignored and disregarded the evidence of both discriminatory and retaliatory animus when in fact there was both clearly frustrated antagonistic and fed up with employees like mr wilfong who are using f m l alias and what they did was they took an otherwise ordinary violation that might have been an ambiguous violation about whether or not it was a lock out tag violation or if it was a safety violation or just a violation of procedures and with that ambiguity they went to the harshest extreme to terminate him and why did they go to th  cardboard piece on some rollers and it taken a nap and my question to use this were those rollers that i've read to the the record next to a conveyor belt the rollers were at the end of a conveyor belt system and it is a sort of the same thing that when we go through t s a at the airport you're some rollers and there's a conveyor belt right a very good analogy yes your honor all right so he's lying on a cardboard box next to a conveyor belt which could be activated in the time because he hasn't turned it off is that a pretextual reason that's actually not every that actually not true it was turned off and it couldn't have been turned back on and everybody said that they didn't know the lock out tag out person most knowledgeable the maintenance supervisor everybody said they didn't know what was a lock out tag you out so that's it that in and of itself is not a protect reason that's their alleged reason they're in with their proposed budget in three zone and then the burden shifts to the plaintiff to say is there any other reasons and we thought and we have presented substantial evidence that is either direct evidence or at least where in the record can to find evidence that the conveyor belt was turned off the list well this fear will form but by somebody else will know mr well mr wilfong worked on that machine and he is the one and he testified in his deposition which is in the record that he turned off the switch he also testified that he put the a sheet of cardboard down which covers the optical why and so this is an open facility it's even bigger than this courtroom here and anybody who was while i'm looking for that citation do you mind if i could i can i want to kind of multitask you do you mind if i address the question that the courts have presented if you want to give me a citation on your rebuttal as i would love that if i could your honor i will find that us that record cite as to that it wasn't clear whether this was a lockout violation or not yeah i noted that that's it three e r for twenty six and then again four twenty nine to four thirty ok if i understand correctly they but we think that that's a disputed issue of fact i think the policy manual itself number one not only does it not technically fallen it doesn't fall in at all because the manual talks about training for  servicing cleaning and repairs and maintenance and what their person most knowledgeable about lock out tag out and their maintenance supervisor who does those trainings what they both testified to and i asked them well what should he have lucked out tag out and mr torres said there's nothing there to lock out tag out and mr harrington the person was knowledgeable from idaho who flew in for his deposition said i asked him after knowing everything that you know now we spent this whole deposition it was the very last question in my depo what should he have walked out tagged out on the liquid and he basically what he told when he called mr harrington at that time in july of two thousand and thirteen was i think we've got a lockout tag out violation and mr harrington that's all he could recall from the conversation he said yeah that's fine i agree but mr geary didn't give him any of the details or any of  the circumstances he did nothing to kind of investigate to really determine what it was and i think all these questions kind of show that that there's a dispute a fact about whether or not this was a this really was the reason that they did it or since mr distinguish roe versus auto or system washington which concluded that a request for an accommodation without ford is not a protected activity to support a claim for retaliation in violation isn't protected activity then the legislature changed the law and then more said it was a change it's not retroactive and so our facts are under the rope analysis so then the question becomes did mr rim mr wilfong do more than simply request an accommodation and here he not only did he oppose the discipline that they gave him for having gauged as well on february fifth he complained that the paperwork was wrong went to both mr tourism is lima when they gave him the discipline for having used a fifth day or having accumulated five points for using his c f r a leaves and at the very least if they were going to give him that fourth day then the fifth day was they could have done as an accommodation now only did he complain to torah's he complain lima he complained to the h r director scott to dispute the warnings and nobody ever got back to him in fact there's an e mail where they talk about in the record about making sure to follow up with him he also complained weakly to his supervisor mr torres and the satoris says he complain to me all the time and i would go to ms lima and tell her about that and his leave of course is in the h r department so here mr will follow wasn't just saying hey i wanna a caught hey i want an extra day they actually discipline for five d r ten forty four and ten thirty five and so i think those facts are and raise an issue about whether or not he did more or if he simply requested an accommodation so i don't think we have to decide that as a matter of law he didn't do more i think the question is could a reasonable jury find that he did do more and i think a reasonable jury there is substantial evidence that that raises that tribal issue of fact on that he however tally ation so i think i would hope that answer what the court's question was that we got last week so got about four and a half minutes left but i wanted to and i did want to reserve a couple of minutes for a  bottle i did want to make one point the these are all disputed facts and the court has routinely talked about in cases like niagara vs sears and then there were a number of cases that were cited and i go versus here is the talks about it shouldn't take much for a plaintiff to overcome summary judgment and here i don't think it can reasonably be questioned whether or not there's a dispute a material fact about whether or not mr wilson had a disability and i think the defendants make much ado about his testimony where he says that it didn't prevent him th standard under fee has not prevent it's did it limit and clearly walking with a limp and having to take a whole day off of work a week is something that limits you in major life activities such as walking and working and so i think i've got about three and a half minutes left i'd like to reserve the time for a bottle while i'm sitting at counsel table your honor i will make sure to find that site in the record where it says that mr wolf turned off the turn to flip the switch ok thank you thank you surprisingly enough which is these are all disputed facts they're not all disputed facts it is under spewed that mr wilfong lay down on a conveyor without asking for permission without asking for any alternatives he went ahead and he did conceded it wasn't technically a lockout heck out that it wasn't covered by the annual you're correct it was not it's not it's not covered by the minimalistic the manual does not say that you have a lock don't tag it out before you lay down on a machine activity or conduct i couldn't disagree more with that because the testimony of mr wilfong was he agreed that they were trained to lock out in tag out all equipment to protect against accidental or inadvertent operation when such operation could cause injury to personnel that's at five ten sixteen ten seventeen he also testified that he knew that when he came into contact with part of the machine that could harm him if the machine was inadvertently operator turned on as to the particular machine that he was why not correct exactly so he admitted that he knew he had to do something more on his machine than he get correctly or is that the record that that is at five e r ten sixteen in ten se the policy regarding the machine itself mr wilfong actually testified there are three places on the machine that you could lock it out and i think where the misunderstanding is coming in is that mr aarons in the deposition of mr harrington repeatedly asked him where do you lock out the rollers in the rollers are part of the machine is connected to the machine it's not a separate piece of the machine it's connected to the machine there's no lockout on the rollers because the rollers aren't energized what happens is the machine as a conveyor belt moves bo along to go onto the rollers then the rollers begin moving so there's three spots mr wolf on testified that he could a locked out the machine so you can't turn it on so that the conveyor belt would move boxes and items onto the rollers where he was laying you it he said i think there were three for the whole thing when he was asked could you walk it out that's at page it's five hour ten twenty one and he had made it five ten twenty five that because he didn't lock it out the machine could have been turned on with the flick of a switch because what happens you put the lock in there you can't move the switch up that's the purpose of the lockout because he didn't do that the machine could have been activated as he lay there but you're an expert didn't even know that right our own expert was asked repeatedly whether you could lock out the rollers and you can't lock out the rollers the machine is what should have been locked out and that is why but if you if you call the most knowledgeable person and they can't say what they know that you should have done how is are some sort of tribal issue or ambiguity about that again i think you're kind of carefully parsing things that were sent exactly where it is and then you back up a little because what you just said isn't exactly what reading back but i think i think if he could that that there could be movement so if there was a bit ability to lock out the machine somewhere else i mean he clearly disputed that there was anything that he had to walk out where he was actually lying and that seemed fairly clear in the briefing he with mr harrington testified to was it a was an obvious lock out tag out and then he was asked by mr aarons is it covered by the expressed terms of the policy and he testified it was not it was covered by the training and i think that snippet i read to you from mr wolfe long as deposition shows that he understood from his training if you were going to get onto a machine and lay on it you need to lock it up you will take your interpretation of it i didn't see any clear my notes indicate he said he said he did not have that training that there was a dispute as to the training there was it means he was a jury argument right here we're talking about summary judgment and we're talking about you've got to give inferences to the side that some are judgments against so that's a jury argument you can make and that's what you're making right here but doesn't that take it right to the fact that there's a tribal issue i don't believe so because i think the ninth circuit and courts i mean you're he still a question of interpretation of the policy and how you apply the policy in courts within california arteaga decision have repeatedly said that neither juries nor plaintiffs have the right to take away that right from employers to interpret their policies as they see fit right but you don't immediately suspend him right after it takes a while and you have to ascertain whether in your view you think that there is this violation so it wasn't perfectly obvious to the employer at that moment and so then suddenly two weeks later and now here it's perfectly obvious that there's no other way that you can look at it i'm not saying you don't have the best litigation position but this is a summary judgment right and i think as to that point what occurred was the three supervisors found him in from a supervisory position it's not their position to determine what sort of violation is there to provide the facts the plant manager and to h r and that decisions up to the plant manager nature next exactly what they did they provided three separate statements that went to a chair of the plant manager who conferred with david harrington and they decide if you lay on a conveyor at work and you don't lock it out until i get out that's your legitimate discriminatory reason rather  wilfong presents evidence that it's not covered by the manual and they are there is some smoking e mail saying we hate this if a policy people are abusing it we need to fight it  termination decision i believe what he said was not referencing mr wolfe longs case specifically but in general what the testimony was was that he said they have a disproportionate number of f m l a leaves at the facility where mr wolfe long worked about the recertification to write in that so we can't just take your word that right there that your your employee says that he was told to get resort vacation a certain point he puts it down the line as far as that so i mean right there he say and he said in response i don't remember what she said i was pretty mad about why she didn't tell me before hand what was going on that's at five ten forty five she request him to get a recertification she's as i recall the the recertification word was not used but what she testified or depositions that she asked him for additional medical documentation that's up for e r seven sixteen in so i don't think his lack the recollection of a conversation can create a material issue of fact when she and i'm vigorously testified i asked him for that additional medical documentation on february fifth you know addition though mr wolfe on testified in his deposition that at some point she did ask for additional medical documentation he was also asked the no on february fifth if you needed to provide additional medical documentation and he said i asked her why didn't she tell me in the first instance i didn't have five days and go for so many months he was asked you know at that point you were aware the medical documentation said four days per month yes so you were on notice what was going on correct yeah so he both i believe implicitly and explicitly knew on february fifth that he had to provide additional medical documentation if you want to go beyond four absences per month and he admitted that he didn't do that he admitted that he didn't seek any additional certification until his initial certification expired in evidence just as you can but your view is that's undisputed my view as that's undisputed is undisputed in the context that if you can't remember what she said during that conversation and she testified that i told him on february fifth you had to do this i don't think said both implicitly and explicitly that he needed to provide that that additional leave he failed to do so and there was no requirement for miss lima to put that in writing i know opposing counsel argues it has to be in writing if you look at the c f r a there is no that lima testified she could not remember whether she had informed wilfong that he would have to provide recertification from his doctor if he wanted to take up to leave other than four days is that is that when he received the verbal and written warnings that he needed to provide additional medical documentation if he was going to take over five i'm sorry over four absences per month in that in terms of the rope and more decisions i don't believe that simply saying something is unfair constitutes protected activity under fia you actually have to oppose discriminatory conduct and there certainly was no complaint then or any other point by mr recall if you didn't have so your opposition equals great sense otherwise you can't oppose this or what's your best case on that opposition has to be a filed grievance i don't think opposition is to be file a grievance by using opposition needs to be specific opposition to discriminatory retaliatory conduct that's what protected activity is versus hey this is not fair hal and when he was suspended for points again i do not believe he filed a grievance i don't believe he challenge it i said challenge i asked his challenge equal craven she said no did he challenge that i do not believe the record is clear as to whether he made any sort of a challenge to ms lima when he was given his final twenty which is pages one zero four and one of six of his deposition that he had shut that he had turned it off not only did he testify to that but john ness the supervisor who saw him at first and then went to get other supervisors and came back testified that it was shut off the switch was shut off as well which is forty are pages eight thirty seven to eight thirty eight in the record so yes there is evidence in the record that he did turn the machines off there was also a question about whether or not he had told anybody what he was going to do in fact in the record mr wilfong testified five the e r ten twenty four that he told his supervisor mr dean that his back was bothering him so much that he planned on laying down and the record mr wilfong testified more and so there was not only that but when when it was represented that all the supervisors knew it was a lock out tag out that's also not true as well because all the supervisors testified that their training for lock out tag that says that if they see something that they out they're supposed to immediately remove that person from the floor and immediately suspend them mr wilfong after they told him to get down they all just left and he testified that he went ahead and he laid down right there on the floor and he finished working that shift and then the next two shifts and it's only after i believe mr a year e with his discriminatory and or touch or animus about people who use ethanol a decided that this was an opportunity that they could take and frankly an ambiguous and unclear policy as to whether or not this fell within that policy and turn it into the harshest extreme which is to terminate a thirty five year employee and so i think one of the things i kept hearing counsel talk about was what's implicit in this policy and our interpretation of this and our reading of these facts and every time i was hearing that as i was sitting there i kept thinking to myself you know that's your position that's not summary judgment we have to look at what's implicit and what the reasonable interpretation is in the light most favorable to mr wilfong and that's what i began with here this morning which is the district court parroted everything that position was and there are disputes of fact in regards to his disability and regards to the certification issue that you all addressed at length and in regard to that sort of occasion mr wilfong we addressed this in our reply brief as well on page seven that it's very clear that the first time he said that he heard anything about research for cation was in july at the time that he was suspended and there's also an e mail where they're following up about this research of the cation which is a march eleventh two thousand and thirteen e mail by ms lima and it says nothing in there in that e mail saying of the need that she told him he need to resort of cation just that in her reading of the doctor's notes he g