rebuttal time i'm sorry three minutes or three minutes ok you're going to get that or both of you just me ok thank you morbid obesity standing alone is an impairment under the americans with disabilities act without the additional element of proof that a separate physiological disorder causes the morbid obesity and as you know several circuits have said the opposite that's correct sir why should we create a circuit  you don't i don't believe that the district court completed a pretext analysis because we didn't pass the threshold of st proving that the client or that the plaintiff was disabled so we didn't get to reach the pretext analysis down at the district court which would be a legitimate reason to grant summary judgment and it's very often where plaintiffs lose summary judgment in cases like this but the court determined that  no dispute that he falsified business records right he admitted to that we would term and a different way your honor but yes that's correct and there's no dispute that at least on its face that was the reason he was client was terminated is because he prematurely signed off on preventative maintenance that he hadn't actually completed it which at a superficial level seems like a legitimate reason which is why it's the wyatts medtronic reason for discharging mr vol the st place however when you take a look at what the rest of the entire staff of facilities maintenance crew are doing they're doing the exact same thing with the knowledge of the supervisor that very same supervisor that terminated bel of the one of the individuals one of mr health care is similarly situated peers testified that it happened approximately two to three times a year and that the supervisor would assist him the supervisor would sign off on the preventative maintenance tasks that as having been completed and then say hey go complete these before they become passed to complete those because i've already signed off on them so because this isn't a scenario where you have the peers and gaging and identical misconduct without the knowledge of the supervisor you have the supervisor complicit in assisting the maintenance the maintenance crew and gauging in the exact same conduct that mr vaults here a engaged in however it was not a terminal of a terminable offense when his similarly situated peers engaged in that misconduct and in fact they weren't even disciplined however mr altera even though he worked for medtronic for ten years with favorable job reviews raises promotions and no previous disciplinary action was immediately terminated for and that all occurred during this timeframe when towards right proceeding the end of his of his destroyer saying that he was shell all the rest of the time and then he became you know i thought he was big all along i'm not going to be offensive to him but i'm just saying i thought he was grossly obese morbidly obese during his entire employment period is that wrong he was that's correct ok so you have this from the supervisor who's known that all along this is not a surprise and at least as i understand it your client indicated that this supervisor on several other occasions had at his request not assigned him to do certain things because he thought it was difficult because of his weight going up ladders and so on is that wrong that's correct actually that mail he notices mr altera walking slower he notices that he's using the cart instead of walking across the campus and people he attributes it to mr vault here is wait and so then decides to take away the accommodations that he had previously falsified the records admittedly so not a problem and it would be a problem if the analysis stopped at the employer's obligation to identify a legitimate nondiscriminatory reason however we've identified it reasons  the record that are they're not best or they're not based on conclusion or or guesses we have actual peers and employees that are doing the exact same thing with knowledge of the accommodation request and said look you know i i can't do this i need you to assign me to something else then we've got one kind of a deal i'm concerned about if you will an implied accommodation is there any ca  i don't believe that that's been alleged the lack of accommodation or the revocation of that accommodation and then assigning these these job tasks that my client could not perform without severe pain it was meant to establish discriminatory circuits have gotten your guideline wrong that's correct your honor although so are wrong with another's ok go ahead i thought the st circuit got it right except we don't have the guidelines  obesity clearly fits into the regulation very neatly i one thousand it just says a physiological disorder a condition that affects the body system well clearly obesity does that  and our guidance says don't do what an impairment is not it's not a it's not a condition like weight for example that's within the normal range and not the result of a physiological impairment that is not a disorder that is not an impairment so that leaves us with what is an impairment and what may be an impairment because all we know from the guidance is what isn't and the guy what isn't me what is an impairment or what may be an impairment is weight or height that's outside the normal range conditions of a person has a v m i for example of twenty six dollars it's a jury question would the jury find that's an impairment probably not because that's the but the higher it goes the more jury is going to find that you have and impairment that you're you know at work for example may well have an impairment and of course so it's literally decided on a case by case basis yes and you know what that is not a because a lot of things are in the sliding scale for example someone has high blood pressure and it may be a little high but it may be very high and that people manage with that that's not a problem that it's not remembering that it's not a disability just because it's an impairment it's there to be a disability it's a two part thing you've got to have an impairment and substantial imitation of a major life activity  and you're only at step one if you find that there's an impairment now the b n f that suggests that that's really unfair to employers because this is a statute that provides reasonable accommodation but it doesn't apply it doesn't provide reasonable accommodation solely on the basis of impairment even to regarded as a condition if that's the coverage basis there's no reasonable accommodation requirement so if you're as the jury could have found  cook if you're an employer who who got reaction says no i'm not going to hire you because of your weight because i think you're obese then that would be could be regarded as a disability but there'd be no with reasonable accommodation requirement you have to be able to do it the minute the essential functions yeah so it's really not unfair it's the better reading of the way we wrote the where we were so w and it's documented why it's happening which of course in many cases there's no known cause for things then maybe circulation efforts they keep their weight down but they still have an underlying impairment i mean underlying physiological disorders with the possibility i am aware of the where the courts have gone wrong is what when they say if and from kind of there is no b n f says being the stuff says that's just too bad because congress drew that line so it's not irrational but no congress didn't draw that line that line is not in the statute it's not in the regulation it's in a misinterpretation of our guidance a better interpretation would be no distinction between people who have dorf islam regardless of whether   i think that right now i think your time's up ok thank you thank you you are here for your argument now you can thank you what i'd like to do is address the issue of whether mr about here was terminated because of you know legal reason and the evidence a pretext mr neil will address more of the morbid obesity while it's an interesting issue what the record showed with respect to the pretext issue and i thought she said that the district court never got to the issue a pretext there was a limited qualification of the record and that was enough full release to work he had no restrictions whatsoever on december th he presented doctor's note that said he had no restrictions he could walk he could he could climb ladders he could climb stairs and for the next five months his relative his work relatively unremarkable in may his supervisor mr duke noticed that he was having he was he was moving slower than usual and he wasn't taking stairs and mr duke rightly was concerned that he wasn't completing his work and so he looked into that out the back at that time the m s b that evidence shows that he asked mister how are you doing he says well i'm having trouble and he said i'm having trouble in one specific area and that's climbing very tall ladders and standing on very tall ladders for long periods of time ten foot tall mr duke said ok you don't have to do that job and every time he had a pm that assigned that kind of work he accommodate him mr volunteer admitted that the four or five times that that came up he went to mr d that work was reassigned interjecting in all that mr dallas here had a one week vacation that was coming up he was assigned twelve preventive maintenance orders to do before that that was that vacation when mr duke went into the system to check on those to see if they needed to be resigned to other people because he might be gone he realized that all of them in a been signed off within a matter of hours and based on the amount of work the thirty to forty hours worth of work that mr valid here would have had to do to do those it would be impossible for him to do those and sign off on all of them before he left mr duke investigated with the help of a human resources they looked at it and they determined that based on the condition of the the work sites the spiderweb the dirt the old oil on these preventive maintenance orders that he couldn't possibly have done these and he didn't do these so they talked to him when he came back from his vacation on june rd mr bell tiara admitted that he had never completed any of the work climb ladders which would of been directly contrary to his job description his job description which is in the record a status is that he's required to be able to climb stairs and s for medical devices that are implanted in individuals heart valves pacemakers things of that nature and this preventive maintenance is subject to f d a approval and audit oh so mr i understand  along his work description from the beginning was involved climbing ladders and all the kind of things we're talking about this was not a new thing for something with regard to do all  along all over the supervisor accommodated him from time to time when he would ask that it was clearly not required that he do so from your perspective right he then goes on vacation he  mr they knew each other for years he knew what kind of work pace he worked at all of the gentlemen who were field facility maintenance technicians were large men they worked in the record mr majors who was quoted it was two hundred and eighty five pounds so he knew what kind of work pace that mr about here worked at and so he could gauge that and there never been a comment according to mr valtteri never a comment a disparaging comment about his weight or about anything about his obesity or anything like that during the entire time that he worked mr duke so there were no negative comments every time mr duke was asked to accommodate him having to work on tall ladder as mr duke accommodated at the evidence and i think it's important to look at the record of the and this may be my confusion after the district court either before or after the district court cited that the real reason for the terminations was to falsely cation of records of the of the determination and i'm not sure where we are with that that that if we disagree with the district court determination on the more of that obesity you're saying we should do what you can review the record in ohio as you do in summary judgment oceans there's evidence supporting the legitimate nondiscriminatory reason that's under about it from your perspective we can perform a mcdonnell douglas analysis ourselves in a firm yes right well but the but that your adversary says no that's not true because the district court never reached it when we never had a chance to argue it and it's just not in the case  impairment issue which is the parties have said you may or may not decide that you need to reach if you do reach that issue we are asking that the court adopt the same rule that's been adopted by four other circuits and overwhelming number of district co which enjoined by the th circuit just a couple of days ago it doesn't seem to be supported by the language it's is absolutely supported by the language the it we're talking about the language of the guidance or ask them about yes the issue about how to read that guidance is one problem is that the as he comes in as an advocate and argues this is what we meant in our guidance and a number of courts have said otherwise but the agency has never gone back and revise the guidance and the phrase that they point to where the the word war is used and they say scuse me they say that it should be they say that it should it means that the way that is outside the normal range is enough without being a physiological disorder well from a grammatical perspective that's not right because we're talking about something that's describing the negative and the dissenting opinion in the montana supreme court case which did adopt that view explains that and walks through it but what the other courts have done and two other scored seven tonight have rejected that and said no when you read it as a whole the better reason reading is you have to have both outside the normal range and an underlying physiological disorder and one reason for that is if you go beyond that one sentence that we're talking about and look at the rest of the language it refers to other conditions such as pregnancy that are not the result of a physiological disorder or not impairments and it doesn't include personality traits that are not the result of physiological disorders and so what the agency was doing is taking situations where someone might argue that something that looks like an impairment or maybe argued to be an impairment and explain why they are not and so they talked about characteristics physical characteristics height weight muscle tone and said no those are not unless outside the normal range counsel what do we do as you know the scene now takes the position that it's  guidance means a particular thing you know there's something called our deference for they consider their own regulation why shouldn't we defer to the agencies construction of its own guidance in this  other circuits have already reached this conclusion of rejected the if he's reading as am a case which is different from what the agency has done has a policy making body and in that st issue is the main reason to reject because so you  reject our deference if there's a reason to question whether the statement of the amatus brief is the considered view of the agency and what i mentioned earlier that the a c over all these years with all these cases has never come in and done anything to the guidance or to the regulation it could have done it in the time it completely revamped the regulations after the two thousand and eight amendments and it still didn't do anything on this point so you've got the the policy making group over here that's not taking steps to line up the language in the guidance and the regulation with the arguments that it's lawyers in the litigation division are out there making in these cases you know i know he said that in the one of the cases that was a public agency involved so they weren't involved but were they involved in the other yes court decisions yes they were a party of the six circuit case they appealed as an advocacy in the morris case the th circuit case and in the th circuit case the newest one although they did not said morbid obesity is an impairment it has defined morbid obesity strikingly differently in those cases and so what we have now is they're arguing for a b m i standard of forty in the earlier cases it was the one hundred percent over the norm standard which relates to that was the standard st stated in the c compliance manual which was actually the issue in that montana case the fight case which came to this court because it was there on a certified question and judge schroeder was on the panel that that reviewed that decision and looked at the compliance manual standard that one hundred percent over the norm standard as the what puts parameters around the normal range concept now back to the hour difference point that inconsistency some cases they argue one hundred percent over the norm some cases they argue b m i forty those are very very different standards someone with b m i forty is door from your perspective since you don't have a lot of time you're saying our differences not do the agency in any event for the reason that you indicated it is not to the agency as to the amatus brief but if they file maybe do the agency currently as to the guidance itself which is another problem they're doing a double dip here it's and with this brief to guidance to regulation well i'm trying to understand what this means though so if if  physiological disorder are caused by physiological disorder what kind of physiological order disorder would that be because we don't really know why people are have have some people tend to be thinking right so the core problem with the argument about obesity is that obesity means excess weight white is a characteristic just like higher i color hair color my hand in the argument is that when you get excess weight at a certain point it starts to be labeled as something but that doesn't change its fundamental characteristic as a characteristic and only when there is an underlying physiological and those are fairly rare  there are some disorders that cause obesity there may be some medications that are taken for other conditions that cause obesity those are those are pretty rare situations and so mention you mention pregnancy  humans go i don't know where those exactly fits but how would pregnancy a normal pregnancy qualify as an impairment if it weren't tied to a physiological  something really unusual that made it so there was the imminent loss of losing the baby or something like that it would not and for really the same reason pregnancy is a normal functioning of the body just like characteristics are normal aspects of the body and so unless you had you can have someone who has who is pregnant of course who develops other conditions in those other conditions maybe may be treated as impairments and what they are and you know that that's the basic ok as to the basic argument i was making before about the guidance and how your time is over let me ask my colleague if either has any additional questions for you i think that's what we think you both for your argument you actually ran out of time but we're going to give you range they're both characteristics i will wholeheartedly agree with that an excessive range excessive weight could potentially be fatal it can kill you at an excessive ranger eye color it's never going to kill you i agree with your point about that but l k back to what was said i understand that the job description of your client always included the very things that you know complains about he was doing that for ten years ok when he would ask for something it was given to him or other people or had weight issues he wasn't abused because of the weight or something like that he doesn't ask for an accommodation ozone accommodation claim then he comes back and for the st time when he found there they found that he had falsified the records he had then says he's been discriminated against how he's supposed to view that it isn't that a bit i don't know it kind of gaming the thing  yes and if that were the only point in the analysis that could where the employer had an obligation to either accommodate or be aware of mr voltaire's you know physical limitations that would be different and i do i do know that there's case law that says you can't raise the disability issue immediately after they found out that you can get in misconduct or they hire to you and however they were aware of mr voltaire's morbid obesity whether or not they knew it was a disability whether or not they knew that the what what you're saying they did wrong was his job description so let's just say hypothetically he had a disability that he had to use a computer it was a locker but th circuit judge and all of a sudden the locker can't use a computer is that a violation of the american with disabilities act because they can't do the computer so at that point you have to engage in the interactive process and have that open dialogue about ok what are your limitations i accommodate them without imposing undue burden on myself your client did not do that until after he was accused of falsifying the record because the accommodations had already been awarded to him in an informal manner so there was no problem until when did the supervisor recognizes that he's having issues and said well i know that i had previously taken these requirements away from him i'm going to give them back and see if you can actually do it because he's three hundred and sixty pounds and i don't think that he'll actually get to the top of the ladder and then