righty that brings us to bats and versus the salvation army granted in full to the salvation army in this case and we believe that the district court erred in granting summary judgment to the defendant here i think miss bateson had several claims eighty eight discrimination in retaliation interference in retaliation in march two thousand and thirteen plaintiff ebony batson supervisor major everett wilson made the comment that everyone has to work in this department we can't have sick people that comment came within a couple of weeks of hit major wilson deciding to eliminate respects its position more importantly that comment came within a few weeks of a feb twenty not suggesting for a minute that that is direct evidence of discrimination however we think that it does show the intent here with all of his bets and claims miss bateson was an eleven year employer employee of the salvation army and had good performance supervisor asked to have a meeting to discuss the accommodations that she needed for her multiple sclerosis and the accommodations really were pretty minor in the grand scheme of things her job was a heavy travel job she travelled every week what she needed as an accommodation and what she an accommodation until she officially requested requested it was that she was allowed to alter her travel plans on one way or the other to accommodate her doctor's appointments and also the fatigue she suffered as a result of her multiple sclerosis  her doctor also in the official accommodation requests on february twenty sixth just said that she may need to work from home from time to time and that's something that the salvation army allowed in january of you just for show and i just want to make sure it's clear was miss bateson given any accommodation after she submitted the formal request no your honor ok so that was prejean you said that she was that was previous to that point she was accommodated until she officially requested the accommodation she officially requested the accommodation because after major wilson took over she felt like she was being treated differently because she had to alter her travel schedules was essentially what it boils down to and she asked them to talk to them repeatedly and the meetings were cancelled for one reason or another once she was sick once major wilson left early and decided oh we'll meet in april instead so she went to her doctor and she got these forms from human resources by the way when she went in to say i'm not sure what's going on i'm not sure why i'm having these issues with half a mil i am not sure why i'm having these issues with my supervisors not being willing to talk to me about my accommodations and so she officially applied that's the right thing to do i would say under the law and under any circumstances  just to make sure i understand was there an occasion after she was refused the accommodations and as a general i guess as a general matter where she actually tried to get the accommodations and they weren't given to her there wasn't your honor but i think this is a really unique situation here on march twenty second miss bateson was told your combinations are denied on march twenty ninth she went on f m l a leave and didn't return until may twenty seventh on june fourth she was told her position was eliminated and she was no longer had her job with the salvation army so there really wasn't any time for them to you she didn't work for a long period of time and was denied her ability to travel or flexibility with her travel but that's because she wasn't at work she was on a family leaf can you help me with the law in this area if a person is told we're not going to give you any accommodation does the law say anything one way or the other about whether you have to then try to get an commendation even though you've been told as a blanket matter you're not going to get it at that i found your honor i mean she was explicitly told i believe that's direct evidence that her combination was denied at that point mcdonnell douglas doesn't apply they have to say why they didn't give it to her in this case i suspect that the reason they would say they didn't give it to her is because they decided to eliminate her position in march and that end with respect to the family parents claim no showing of intent is required no showing of intent it it's the a b a failure to accommodate claims of family interference claims are interesting in that they really don't require the type of proof of intent that other discrimination claims require you know it's in this circuit that if you prove that you were that the company failed to accommodate you the only answer then is was it an undue burden and they have not suggested that here  with the interference claim it is did it have anything to do with the f m l a leave salvation army's argument is that it did not because her position was eliminated for a valid cause you know it whether it was or wasn't i think w much more important here is that mistake of us was told to transfer miss baton into the position misstate us then said to the salvation army to the territorial finance commission no i can't do that we have this affirmative action plan which by the way was not produced in discovery but let's assume for the sake of argument that they have won the territorial finance commission and remember this is sort of a paramilitary organization these are majors and she's a civilian employee after she said no we have to post the position they said no we're standing by our initial directive to you transfer miss patton into this position and it's important to note that miss davis knew the f mily was approved on march eleventh the interment definitely that the accommodations were denied on march twenty sixth so she knew all of this when she refused to transfer miss bateson into the position i think there's an even more important issue here which is let's say they had to post it they did post it miss bateson was the only person who applied why didn't miss davis transfer her into that position at that point she was the only internal candidate and then after miss bateson was interviewed by miss major bowl they left the position open rather than put miss bateson in the position she was the only candidate than they denied it to her they posted the position for external candidates frankly honors i just don't understand how summary judgment was granted in this case my client was discriminated against she was you know she suffered definitely interference in retaliation with respect to the exhaustion of administrative remedies issue i think we need to address that issue what the court with the district not exhaust her administrative remedies because she didn't check to retaliate on the form we're not suggesting and i think that the briefs are clear on this point necessarily and there's case law in the circuit by the way that goes both ways on this issue but we're suggesting that miss bats and intake questionnaire was a charge of discrimination what we are saying is the investigator had that intake questionnaire that had the retaliation box checked that said june fourth that said june twenty eighth two t and thirteen as dates of terminations when she was doing the investigation so your argument is that we can look to the questionnaire as clarifying as clarifying it essentially a clarification and on the face of the charge what miss bateson said and by the way miss bat didn't draft it the investigator did said i requested an accommodation in feb twenty third teen my position my last position with the salvation army was audit manager the accommodation was denied i wasn't told why the accommodation was denied i believe i have been discriminated against based on my disability under the a da so i don't know how you say under the facts of this case that her disability claim was not exhausted so then the question is the retaliation claim the box wasn't checked under the law asking for income and accommodation is protected activity the date on the charge said june fourth two thousand and thirteen as the last date of adverse action that was her term and that was when she was told your position is gone on june fourth she and gauged in protective conduct she was denied the accommodation and she was let go we believe that on its face under gregory vs the department of human resources a case from this circuit that's enough to bring the retaliation claim in in that case the plaintiff in that case checked the sex box on her claim to not check their television bots the charges filed after she was terminated and the court said that's enough you retaliation claim is incompetent in your charge so we believe that's binding here on this case and that the district court should be reversed on that issue with respect to the pretext issues relating to the retaliating claims  where an employee fails to follow policy and there's two policies at issue here right let's assume for the sake of argument that i see thank you thank you counsel may please the court good morning evan ponce on behalf of the salvation army if i may let me start where my counsel opposing counsel was sort of finishing on the administrative remedies issue just to briefly say this is not a box check case there is a litany in her briefs of box checking case if the only argument here was well they didn't check the box i do agree with her but it's so much more than that she recounted the charge itself it says i wasn't accommodated they failed to accommodate me that's disability discrimination period the only reference to anything beyond that is the june fourth date or in a different box which was an argument made until the appeal for this court so there's a problem with that to begin with but even if this court will honor that argument inconsiderate there is nothing about the charge that gives any significance to the june fourth date and she wasn't terminated on june fourth despite her contentions throughout the record is very clear miss bateson came back for methe m l a leave on may twenty eighth she was reinstated to her job she worked on june fourth she was told her job was being eliminated there was a posting for a job she had done before which she could apply for or she could find another job if she didn't find another job in a period of time at that point she would be terminated she applied for the job she didn't receive it she didn't apply for any other positions or find another job she was terminated or all that happened in june in july she filled out intake questionnaire after filling out the intake questionnaire she filled out a charge  and she signed it under penalty of perjury she didn't say this charge is missing all these things she didn't file an amended charge she'd make any effort to point to any other  failure to accommodate exactly what the district court found it's exactly what the law finds all the cases where they're dealing with a checkbox or related issues or cases where there was something in the substance of the charge that's the gregory case you've got to look at the narrative it says look at the narrative there's nothing there except failure to accommodate on that point judge you asked about the failure to accommodate there is no law that says saying you're not going to accommodate but never taking any action violates the law that's what we have here miss bateson manage her schedule she telecommuted she came early she came  audit she scheduler appointment she did all these things she decided she was worried about those continuing but they never stopped they never changed there was never in instance in the record and to the contrary when she was asked in a deposition did you get all the time off you want yes were you able to schedule your things the way you wanted to yes were you able to telecommute yes the only change was for staff meetings on friday mornings major wilson wants us all here otherwise you can still work from home until commute and just to be clear was that all that still true after the formal requests for accommodation absolutely nothing ever changed she was already on f m l a leave at the time of the accommodation was intermittent but she was working and none of that changed she came back to work after f m l a leave none of that changed the only thing the change was in the interim there had been an approval to eliminate the position and on the position of the nation the record is crystal clear this was a job created for a specific purpose because the prior major was over the audit department was ill he needed more help that measure regrettably had passed away he had been replaced by someone who said i've now got three administrative heads in my small department me mr durham miss bateson there were two before me until mr until major broom was sick i'm here i'm not sick we only need two i don't need that position anymore if we get to that failure selector for the senior auditor position short can you discuss the interview questions at those two seem a bit them even though there were no record of disability no a familiar leave no anything out she was very particular the job required at least seventy five percent of the time travel and these were audits in the field and the practice it was sort of like being a consultant you left monday morning if not sunday night you were there all week you came back thursday night or friday morning and it was very important to her to make sure that her auditor were able to do the job to be present for the audi especially a senior audit manager which the record noted has missed both major bolt said was one of the lead people so she was simply laying out the fact she was doing what lawyers like myself counsel our clients to do layout the essential functions  job and asked the employee can you do it there was no discussion of miss bateson disability it never came up well and in the e mail that ms bult sent she says i need to be coached on the questions i can ask so she clearly was aware that there was an issue with respect to the illness and there is a dispute about what she was aware of versus whether it was simply this is the first time i'm doing this i want to make sure i'm doing it right but let's assume your honor that that's a reasonable inference that she was aware because  even they worked in the same department there's nothing wrong with saying tell me what i can ask and what i can ask i think that's smart for a manager who's going in to interview so i don't make a mistake let me be conscious of it so she didn't say you were on f m l a leave aren't you she didn't say i know you have this illness or that is illness don't you she said this is how we as a department manage our doctors appointments we try to schedule them for monday morning and then leave for an audit we try to schedule them for friday afternoon and come back early or if you need something else you've got to get permission from your management to handle it in a different way can you comply with that process that that's not an objectionable question under the eighty hey but aside from the questions th e mails go farther than that to indicate that she doesn't want to hire miss bateson even before the interview which would tend to show that her statement that miss bateson wasn't hired because she was combative is pretext you don't have to correct what i think is an error the record was missed but testified major test but she expected to hire miss bateson before the interview all right but i think the e mails undercut that when she says we've backed ourselves into a corner oh that's a that's a email from from the major wilson e mail you're saying major wilson unfortunately sent an e mail which says she did a performance review problems with me if we don't hire you're going to get a legal claim ok what she says that she hoped to meet with i guess that's wilson she's talking to right and find out if we could point appoint a different person in that position so there's at least some suggestion that before the interview ms bult doesn't want to hire ms batson at most there is a dispute a fact over that but there's no connection to her concerns about hiring ms batts in the reporting out and the connections that the plaintiffs are trying to make sure illness they work together they were coworkers for many years it could have been about that we don't know that was not explored and developed on the record on the record are clear undisputed reasons why major both decided not to hire miss bateson for that position and plaintiff quarrels with them she disagrees with them but as the law requires she does not take them on head on and rebut them they  the interview was terrible the issues with her performance that were brought up were unequivocal be true yes she didn't receive a negative performance review but she had problems with these audit she missed deadlines she did not do it exemplary job in this role and major bolt decided based on those things a poor interview with a very bad attitude and some performance problems i'm not going to hire this person for that job yes thank you he has some conflicting testimony about her behavior in the interview he says she never raised her voice right in the end he understood how she might be concerned with the fact that she was told she was going to get the perception the decision maker major bolts reasonable perception was i was asking this person can she comply with these procedures can she follow these rules and her response was i know federal law i can file follow federal law that's a very odd combative response in a job interview to a simple question of this is how we handle these scheduling matters can you comply with that let me i didn't have the specifics when i asked you but there are so let me ask you about this specific portion of one of ms bolt emails she says i would like to know if there are any questions i can ask i assume that if this candidate is applying then the candidate can first do the job professionally and that's the more and second is well enough to travel at least seventy five percent of the time right which is a requirement for any person who's in the position and that's true that's an essential function of the job all she's doing your honor is laying out the essential function the job she's saying is this person qualified for the job had this batson say in her interview major bolt here is how i can meet those requirements by this accommodation or that accommodation that would have been the salvation army's obligation to consider those request combination none of that was discussed none of that came up miss benson didn't say yes or no to the questions she combatively said i know my rights under federal law and that to a hiring decision maker said this is a leadership role within my team this is a team concept of audit's they're under pressure to on site at a different location go through the books and figure out if there's been fraud or malfeasance or misuse of donor funds this is again this is the salvation army these are donor funds this is a charity i'm a church and they like people who can work together and do this job well and efficiently and major bought me the decision that based on her performance and based on these reactions in the interview she was not the best candidate not a good candidate for the job now again your honor you may disagree with that counsel may disagree with that certainly miss bateson disagrees with that but that's not the issue for the court the issue for the court is a legitimate nondiscriminatory reason which the court found it was and did the plaintiff offer pretext evidence from which those reasons are unworthy of belief cannot pass the smell  and there is no evidence all plane of says is i don't think i was combative i didn't raise my voice she wasn't accused to raise your voice we don't have a situation where major bob said well you yelled at me and miss betsey said no i didn't i wasn't combative major bolts as i felt her answers were combative and mr burrus she said her tone of voice was combative even if she did answer the questions or tone of voice was combative so you got the decision maker major bolt saying i felt it was combative i felt the answers were insufficient i felt her answer her her problems in the job were sufficient enough for me not to hire that's her discretion her choice if plaintiff can rebut that with evidence that shows there was some issue here there was some reason here that was beyond that that's not the truth that's a cover for something well it's not worthy of a lane of says the concerns about her medical condition were being covered by this combative idea  but there's some of those concerns were expressed prior to the interview contrary to this bold statement that she was prepared to hire the candidate until the interview i think those emails are simply a question of i'm aware of something how do i handle this properly i'm expecting her so i assume if she's here she can meet the essential functions of the job that's what would be expected of any employee with or without accommodation now that's an out and actually said in her briefs that she could do the job without accommodation or with accommodation there's some confusion about that in the arguments the court said very clearly her testimony was in this is the undisputed testimony in the record she said she could do her job she had no problems doing her job there was no accommodation declined there was no accommodation not given to her there's nothing she can point to that says i couldn't do my job because of this in some ways your honor if you accept the argument that plane is counsel appellate counsels making that simply saying we're not going to comedy you is enough she didn't do anything a reliance on that statement she didn't change her behavior she'd do anything at all then if an employer says i'm going to take some negative action against you in the future but it never occurs then that's an actionable clik the mere statement would be an actual claim by their argument that's not the law there must be some actual adverse action a failure in actual failure to accommodate a terminations a failure to promote a failure to transfer something has to happen to miss bateson and nothing did here but if you have a situation where the employer and i don't know if that's the case here a hypothetical where an employee asked for an accommodation is told that she can't have it and then doesn't take any accommodation well if the employee can say he's done what she was told it i don't take an accommodation what happened to the job did she continue to do the job or did you say well i couldn't do the job now if she can't do the job now without the accommodations sure she's fail to be accommodated she says i need this i need you to build the ramp so i can get in the office no well i tried to get the office i couldn't get in there or i quit because i knew i couldn't get in there i didn't come to work because i couldn't there has to be an absolute inability to do the job there has to be some actual activity where the job isn't done or the employee says i can't do it miss bat's it's own testimony i did my job i always did my job now according to this major didn't do it all that great and our interview was not good and those are all legitimate nondiscriminatory reasons the failure to transfer there's this argument about ms davis and this argument about policies what it comes down to is this she testified that she genuinely believed there was affirmative action policy that she must follow has her role in human resources this is what she must do she must post the job she must go through the interview process that's what she believed there's no evidence to the country whatsoever thank  address that last issue first ms davis did not say that miss bateson had to go through the interview process she only said that under the affirmative action policy as she understood it that the position needed to be posted for internal candidates and that they needed to hire the most qualified internal candidate well miss bateson was the only person who applied she done the job for eleven years with good performance reviews why she wasn't transferred into that position when no one else applied unfathomable here unfathomable it can only have to do with the fact that she needed the accommodation which mistakes had already told her was going to be denied and it's because she was using a from l a leave with respect to the opposing counsel really seeks a hypertechnical argument with respect to the exhaustion requirement it's not what the law requires and if you look at the district court's opinion the district court did address the issue about what is in the charge can it be expanded enough for the e e o c to have investigated what happened here on june fourth miss bateson was told we've eliminated your position you no longer have it you can apply for new positions that's on the face of the charge and she said she was failed they failed to accommodate her and she believed it was because of her disability want to talk about major bowl i think it's really important to note she didn't want to hire miss bateson she in one of her most about them from the beginning she knew miss bateson was taking it from a label even there's evidence in the record that she did and she sends us e mail saying is she well enough to travel seventy five percent of the time if that's not proof of her animus here i don't know what is and i think that's proof pretext in this case miss both didn't want miss bateson because she knew miss bateson needed accommodations and would need leave under the after my way here summary judgment should have been denied and this case should have gone to a jury trial further or resolution of these factual issues thank your honour's thank you council will