and with respect counsel of what i see in the record is that your client was terminated because he was perpetually tardy always always always always always i don't see where the  hospital was even aware of an allegation of a disability on his part so would you please tell me what is the best evidence in the record number one that sunrise was aware of his alleged didn't say that that had been caused by any disability as a matter of fact the one time i'm just looking at february th two thousand and sixteen he was late  again and he said who is boss that it was cause his tardiness was caused by the birth of his th child and my mother living with me and my family for the st time i have definitely spread myself too thin now he was clearly late repeatedly repeatedly was warned about this he never said i'm late because i have a disability is that incorrect ya know what's happened is that prior to this february th two thousand and takes has the effect of sleep disorder so the problem is he has this tendency of coming to walk late because i have a disability i take this medication it causes me to oversleep i need an accommodation did he say that or anything like that but my understanding is that he did but what it was th look at the record and i don't find that your client indicated to summarize that he had a disability and i don't find anything it says because of this disability i take the medication and i look into what i thought i did i appreciate that i really do i'm just saying that in order to get to that level you've got to show the basics of the claim in the st thing you've got to show is that the disability i find no nexus no connection that he communicated to the employer and in that case under the law unless i'm missing something he has no claim one of my missing twenty four dollars times which violated the policy but that was outside the if i'm getting no i'm saying if he even for taking the twelve months before he was fired was he was he tardy twenty four times do you disagree with that yeah i think i would disagree with that you a problem when did they get an inflexible time that they took no action and they they they worked with him but eventually they changed the policy company wide and your client did not  comply so the only question is is there a legal basis from which you can obtain an excuse and that legal basis would be it he showed them he had a disability that caused the tardiness i don't see anywhere in the record that says that shows that that happened or what am i missing disputing that point that they didn't know about his disability if there were but the burden is on your client with respect he's the one to have to show them that he has a disability you can't assume that they know he has a disability  no i don't have it and that's the email and i quoted from earlier that he gave his reasons one of which mentioned a disability or under said no all right thank you counsel and we will hear from the opposing side thank  you good morning your honor sir bruce young who is presumably on behalf of sunrise hospital medical center to start off i think just smith hit on it directly the issue that is kind of the main problem that this report i believe understood correctly was that there's no showing of causation there was no evidence from the record that mr dylan ever provided any information to sunrise hospital to indicate that the reason why he was being tardy was because of some issue with his medication and i believe the alameda case from the circuit is instructive in that regard in that the individual that case had sleep apnea and the whole issue was there's a difference in the facts because his was an undiagnosed in this particular instance in our case the district court said although thin they found that there was sufficient evidence that sunrise would have had knowledge that he had a disability as your honour's and pointed out the it was from a two thousand point did find that that is correct they found that there was sufficient evidence that there was knowledge of the disability yes but what there isn't is any any knowledge or information or documentation provided to sunrise to indicate that the causation for him being tardy was this medication that he was taking at no time was any information provided to indicate that he could not wake up in time to get to work because of some medication he was taking or some dosage of the medication he was taking because there was something in his in his declaration in opposition summary judgment where he said that his his medication was being changed the actually phrased in that in that way but if we wanted to stretch it the court didn't read it that way well didn't you read it that way isn't in your brief you have a response to a failure to come in a claim well that was that was on the basis of the court indicating is it wasn't really played that way but that the argument if the court found that there was then that would therefore engender the responsibility so as such it was tried we tried to argue in that way in to address  both particular possibilities but the fact of the matter is that let me ok specifically says that if the employer doesn't have specific information such as a doctor's note something of that nature that indicates that the actual causation of the individual not being able to get to work is is from the medication that has to be a doctor's note why can't it be the employee telling the employer i need you to one that was what was in the alamy a case as far as having sufficient evidence that the employer was aware in this particular instance we do have as as you pointed out that there was one self serving statement serving there's a statement in his declaration where he indicates that that he told them but there's also if we go back and one of the reasons that we did include the october  thirteen disciplinary action that he received for tardies was that was during this period of time that mr dillon has said that he had this flexible schedule and in fact he had two different schedules he had one where he came in at seven  and one where he was supposed to come in at nine and that particular disciplinary action shows that the majority of his abs the majority of his tardies for that peter time were for missing the nine o'clock time for him to come into work so if it was nine o'clock if it was seven o'clock it was seven hundred and thirty it did not matter he was tardy no matter what his start time so under the circumstances there's no there's no evidence that was provided to the my client or to the court on summary judgment that the reason he was tardy was because of this medication he was during my no matter what kicked in a fire i'm apt to be requested reasonable accommodation but it wasn't necessarily reasonable comment and that's the point i was trying to make your honor in in that it didn't matter what time he started and also based on the case if you ask after the disciplinary action is being put in into place then it's a it's a rather it's a prospective instead of a it's a retrospective instead a prospective request that is not recognised under the way in that in this particular  that's that's very simple your honor the policy itself as just as noted judgment i know it was that it's a rolling twelve month period of time for purposes of the disciplinary action  twelve months was in march of two thousand and fifteen and the last was in february of two thousand and sixteen so it clearly falls within the twelve months for those twenty four tardies that were being considered for purposes of terminations and those twenty four were only the twenty four that he was written up for the record as the district court noted was that there were many more tardies that he that mr dillon had that weren't actually put into disciplinary writing time where he'd have a bunch in a row and that's when they would notice and give him the display reaction and remind him again that another thing that's very interesting is a none of those disciplinary actions each time he signed the disciplinary action report there's a space for employee comments at no time in the employee comments did he ever support any explanation or indicate that i'm missing or i'm being tardy because of a disability or because of my medication counsel what are we supposed to do with that allegation  just raised today that he talks about his disability informally orally and so that there is no record what do we do with that what the court can only go based on the record this before it on summary judgment i think that's what's troubling me too because i'm just wondering if the rule from today is but i think the rule is everything has been writing you have to have a doctor's no you have to you know e mail specifically the cause ation you're spin but if it were and we were to it dot your position that everything has to be in writing and we have to have doctor's notes then you're going to turn the workplace  which is also why i tend to believe that the employer knew he was on medicine medication a new step was going on and i'm not saying necessarily because i have to go back and think about it and discuss it with my colleagues but that the missing thing the missing link and that's what we have to decide today is the motivation factor because ation factor if you will that's what we're looking at but if i understand what you're saying is that mr de luna knew perfectly well how to communicate in writing when he wanted to them in the family for the st time he said i've read myself two things said nothing about any just body or any medication or anything else as you point out in each of the i don't want to call them disciplinary forms whatever in each instance you cited he had an opportunity to comment was a place for him to comment about any reasons you put nothing there so if you know under triton energy if there is a basically a  scintilla of evidence that he comes up with saying that you know he disability and their body knew it that does not offset the reality of what he put in writing what he didn't sign and what he didn't sign in the other his medication and depression and depression anxiety that the employer already knew about and again that's what he's saying right yes you're right that's the argument that is the argument  what's in the record is is extremely thin in that regard and that is why i believe that the district court said yes there's enough evidence that there was a disability  but the problem the problem with this is again he has a responsibility it is part of the accommodation process to let the employer know what it is he needs and why and he has numerous this is a hospital they deal with nurses who have bad backs and disabilities my wife's a nurse heinz both of these things work and the process many people are out on f m l a or other disability related at the hospital at any given time and the the ability to go to them and say look this is what's happening it's very simple but all we have here is he said oh well i told them this at some point at some time they you know we talked about this but we don't have we don't have any real specific information to indicate when that occurred and how that occurred and what we do have is a lot of written documentation where he had the opportunity to inform or to when but none of them included he was taking medication and again the enemy a case when it talks about the causation aspect there's no evidence no record before the court that on summary judgment that the reason he was missing work was because of medication other than that one paragraph the declaration that your honor pointed out and it's our position that was insufficient to to to set forth enough information that he was the cause for his tardiness was the medication he was taking for his disability as the on the meal case noted it said look he could have set another alarm he could've there's numerous other things that the individual could do to make sure that they wake up on time if they have medication that causes them to be groggy or sleepy they can take the medication earlier they can there's numerous things that can be done there was no information provided by a doctor indicating that he he needed to report to work at a particular time because he was taking medication that if you took medication at a particular time then this start time would be ok that would be the kind of thing you would expect to report to an employer if you had difficulty reporting to work at a specific time saying well my it my doctor says if i take my medication at this time i should be able to you know be awake sufficiently to report to work at x time there's there's none of that there's also nothing from his doctor indicating that he can't work three days in a row that if you only work two days in a row then he'll be able to get up in time to make it to work but if he works three days in a row he can't get up in time to make it to work nothing like that was ever presented there's nothing there's nothing the record the says he ever told anybody at sunrise that that's what was necessary so the the fact is there's in our opinion there's a failure on his part to provide sufficient information to justify  any type of further accommodation if accommodation was provided because obviously my client says no that it wasn't ever discussed and but the fact of the matter is even if it had been all  record reflects that doesn't matter what time he starts he's still going to be tardy and there was nothing to provided to the employer to allow them to understand that if it's particular start time were to be imposed or implemented then he would in fact be able to make it based on his disability in the medication he was taking now right counsel thank you very much or every or time in the case of dylan a bursa center is hospital and medical center is submitted