substantially limits one or more of her life activities that's just a bare bones statement of the standard that's correct and that's what the lower court found that it was insufficient if this court agrees with the district court i would respectfully argue  this court struck our amended appendix which did include an amended complaint under these circumstances your honor i believe rule fifteen and the the  congress included when it when it amended the eighty eight intended to clue include virtually all muscular physical conditions the question as to whether or not a particular physical condition can be subject to discrimination lower courts to to analyze if kevin durant's despite not having any physical disability per se was unable to operate a particular instrument in his in his in his employment party or as a minority but rather or not they did in fact suffer discrimination any disability could be taken to reduce to absurdity to sue to such a degree as the court of suggested i am overweight for my form for my height could i be disabled it's possible that people who are that weight could be a disability under the amended statute if in fact it affects major life activity and if in fact they suffer discrimination as a result of it the issue is not whether or not an individual's physical stature or for physical characteristics per se placed them in a an aggrieved category it's whether or not the result of that was  need help doing this i need another assistant because i can't reach the top of this instrument safely so could you please have someone come in and help me do that i think that is certainly the plain meaning of an  accommodation i would respectfully suggest that secondly i would point out your honor that that what you or what you're suggesting is an interpretation of fact not an interpretation of law it's certainly quite possible that at the end of discovery after  has no doubt ably collected all of the documents in the post all of the all of the appropriate individuals it could be at that point that as a matter of law my client has not proven what you have suggested that she didn't sufficiently yes and so what was the requested accommodation that would be reasonable according to the complaint paragraph twenty eight during the training plaintiff's instructor ashley kingston your honor i'm at page nine of the appendix refused to help plaintiff with the exam despite the fact that it was apparent plaintiff was struggling with the machine due to her height limitations during paragraph thirty during this meeting plaintiff requested a reasonable accommodation of assistance in operating the floor scope because of her height limitations plaintiff paragraph thirty one plaintiff described how she was concerned for her patient safety when she operated this machine because she was unable to see or reach the controls or maneuver the equipment safely if within that context it is determined as the district court did that this was insufficiently pleaded there needed to be more information in order for the court to make the threshold determination that it was adequately pleaded again i would respectfully request especially under these circumstances given rule fifteen's demand that leave to ripley be given freely and that it is in the interest of justice an effort undertaken post decision to allow for replating either under rule fifty nine or some other way did anyone and in other words do they want to ask before your brief minute i realize that amount of time  case where this court had previously suggested that an amended complaint should have been included in the appendix which i tempted to do but as this court is well aware it was it was struck so the answer to your question is no makes clear that a physical characteristic like short stature or in that case will be city in and of itself is not a disability unless it is a product two thousand and eight amendment change that standard and i would call the court's attention to baltimore its case which is cited in our brief which discusses at length the amendments the two thousand and eight amendments and adopt both the analysis and the rationale of judge parker in holding that the the and frances is still good law and is the appropriate analysis of whether the physical characteristic alone is a disability subsequent to the filing of our brief the th circuit also reached the same conclusion so the case is not cited in our brief but richardson versus chicago transit authority adopted the same analysis and rationale that was contained in the francis opinion and the language in the francis opinion said it would be inconsistent with the statutory purposes to construe the da to reach the alleged discrimination by you know i'm not sufficiently familiar with that condition but i believe that if is a might be a product of an impairment of some sort but let's take it to this case  or forty five andrea morey worked twelve years at windsong radiology never claimed to be disabled never requested any accommodation this record contains no evidence that she has a qualifying disability you may be right one of things that puzzled me was this was a motion to dismiss and yet there were also to depletions and affidavits and attachments to the brief radiology in two thousand january of two thousand and three and that the st time there was ever a complaint of any nature regarding your height was when she began training or excuse me when she began operating the flora scope for h s g exams twelve years later it seems to me that that actually begs the question because it suggests that she was able to perform the essential functions of her job until she was transferred to another when something that had a different machine that she had difficulty the nuva ring so i guess i'm just wondering if it says too much for you to say that asking for assistance is not  reasonable accommodation or that for for using the floor a scope was an essential job function because she was able to work for twelve years at other facilities that didn't have it well you know and i would call her attention to the allegations she made in the complaint that she was provided a stepstool affixed to a platform and that she found that sufficient to operate the flora scope and that she never complained that the platform in the steps insufficient except with regard to the performance of a single exam using that machine and respectfully i do not believe that a disability can be found simply on the basis that there is a single task that i'm incapable of doing without asking other people to do it i can't talk a basketball but i don't believe i'm disabled and  in this case the her complaint acknowledges i advised windsong that in operating the flora scope i felt i needed assistance and they provided me the stepsto platform in the complaint says and i never complained respectful but the complaint also says that that was fine until she had to do the h s g examinations and then it became in impracticable she said that the problem was that i couldn't see the controls that's what that's what the complaint says respectfully the the requests that somebody else do that  essential part of her job to say how much time she spends doing the other thing you know the complaint said that what you she she was trained on this machine for two weeks and that when she was at the williamsville location  she did perform exams using the floor scope the complaint doesn't lay out much greater detail beyond that but assuming you're correct your honor and certainly the law the case law indicates that determining central job function is a fact issue its own challenge on appeal there's no a word in the briefs or in any of the arguments that to a plausible inference that the retaliation was the but for cause of the employer's adverse action measures morey's complaint says in january or february i asked not for i asked for other people to do the exams and she was ultimately terminated in in april some three or four months later depending if it was january or february and  you know our position is and the judge below held there was no direct evidence of retail yet oriental mess and that the passage of three or four months was insufficient to raise a plausible inference that the determination to let her go was has a wasn't response was the but for response for requesting i don't want to do this work for her but she she's there at the with the company for twelve years she must to the different facility she asks in january for this accommodation of assistance they say no don't worry about it just don't do these and then twenty three months later she's fired for not doing that seems there's no well certainly you know my view is the inference that the terminations was as a result of a request for an accommodation i don't think that inference should be drawn on the the terminations notice reflected other things as well but it yes you're right your honor it does reflect also refusal to perform an exam right that's that's one of the things that's mentioned but you know let me let me a an example so i'm a sixty one year old lawyer i feel my energy level isn't what it should be i don't have the greatest cardiovascular functioning that perhaps i would like or that i should and i say to my my law firm i'm an employee and i say you know i really need a reasonable accommodation this hour's standard is insufficient and  know i don't think i should be required to meet it whatever it is two thousand hours eight hundred hours and i start working less and four months later the firm says wait a minute you're not disabled you don't have a disability  and they say this isn't working and they let me go is that sufficient to give rise to a claim that i was retaliated for requesting for nick and accommodation when i'm not disabled maybe not after summary judgment and development discovery but on the pleadings i have here we have here that's the question you know what you're overtime ok thank you my question yes would the we filed a motion and that motion was pending for thirteen months the standard is abuse of discretion if it's asked for if somebody asked for leave to amend the standards abuse of discretion it would be unfair to my client and frankly it would be a reasonable to impose on district judges the requirement to say i'm going to grant leave to amend even though it for there was a tactical decision made we're going to write on this complaint and so i don't think it's an abuse of discretion and if abuse of discretion means anything even when it's asked for the cases from the circuit say  would be prejudice and he answered whether or not it would be an abuse of discretion i don't believe that there would be any prejudice and the fact that that it took thirteen months for the court to reach a decision is just simply what happened today prejudiced no one  so i recognize as i must that that on the collected to make that request in my affidavit but again i could i will simply refer to rule fifteen freely given and interests of justice evidence of retaliatory enemas well there was no evidence of it because there's no evidence in this case i think you're we're talking about the four corners of the plane but i guess one question i have for you is are you arguing  that the working the h s g machine was an essential function yes you're conceding that it is an essential function yes i have nothing further your honor unless the i and i would one final  suggest that this is a case which deserves to be the for the defendant i'm sorry for the point of to be given the opportunity to replayed this is an issue of st impression and mr  whether or not height can be regarded as a disability pursuant to the two thousand and amendments of the americans with disabilities act yes how long that's the only debts the only and it's my position that the