no problem with back to it you know for some of us it takes us back to the days of the district court to being able to look at demonstrative evidence ok for what it's worth i know i remember the days when bringing a blow up of something was with that was high tech yeah right you have been sure you would go wow look at that now not so much you were back in the days of black and white television that is true that's true man who suffers from a skin condition that made it impossible for him to look like all of the other officers and to comply with the appearance standards as they exist at the university when the chief of police discovered this she specific she's g admitted she ordered them because she saw him with me let me stop you right there since you've raised it at the outset of the skin condition which figures prominently litigation the district court made a determination that she would not rule this as a matter of law whether or not that condition was a disability i correct yes said that question to a jury do you have a position with respect to whether or not she was correct or incorrect in your honor i believe that under the amended a d f a this is a disability as a matter of law and the reason for that are the plain language of the statute which before we're not we're not very clear i think there was a case out of the d c circuit that said that it was not but actually specifically noted it was the kennedy versus  what the specifics of this disability are it affects normal skin growth and that's and that's in the actual language of the amended statute at the not exist at that time and if you look at the regulations that were promulgated after that it's specifically mentions skin and appearance and also i would note that the a b a spitta definitions of disability specifically say that you're not supposed to regard whether or not that this ability can be overcome by a reasonable accommodation smith just alluded to right what's the major life activity that's affected by sort of like a goddess not being able to be a clean shaven officer not being able to go out there and appear in public as this as the accommodation request said if think the question here was you can have the beard but you have to give us a doctor's note and if i understood your paper you didn't make the doctor's note the focus of your claim i think i'd understand your claim better if the claim was it's harassment for me to have to every sixty days provide a no on what is a permanent condition but yes i understood your claim that wasn't what you article of oh yes it absolutely was your our hope and that was the claim that was dismissed remember that was a claim that we were not allowed to present to the juror this you know the the martin jury of appeal is about the summary judgment order where the judge pacifically said as a matter of law it's reasonable for the for the university of pennsylvania to require them to go back to the doctors every sixty days and my and the other one of the other orders in limon a specifically barred my doctor from testifying that it's a comma condition so i don't see any reason why you would have to get a renewal of or six so that may be but this very thing on the record that i mean look at it from from there just read the record the original that said this is a seven day fishing did you decline or ask for it to be exempted from the sixty day requirement yesterday that was in exhibit forty three or forty three answer judge again this is question right you didn't ask that you be excused you stated that you and i'm willing to concede anyone who can read the record knows that i'm willing to concede you said yes it's a permanent condition but you didn't say excuse me from the sixty day no requirement which is your honor if this is the summary judgment face i think this court should be guided by taylor versus phoenixville case that the district court actually cited i talked about the informal interactive process and other claim that was dismissed by the district court in summary judgment and was not presented to the jury the jury was told that this was reasonable as a matter of law to interpret his request exhibit forty three exhibit forty six the e mail from patrice miller which specifically says that he has to be exempted from the shaving requirement if they didn't even know if your are this this may be a great argument for the jury i don't think it's a great idea but they could make this argument to the jury if they want to see the jury we engaged in this informal interactive process consistent with taylor pursue next bill and we didn't understand that he really wanted to be excused from submitting a notary sixty days they can meet that argument to the jury that's the informal interactive that's not what they did this was dismissed a summary judgment we never got to argue this jury the jury heard that the accommodation denial was reasonable as a matter of law and they heard that he was construct he was not constructively discharged matter of law  to the constructive discharge issue here because it's a major component of this educate set forth for us what what you believe are the strongest objective this is the st disciplinary hearing with the respect i can't see that it took twelve in the record if i could read to your eyes here so this after the the actual card line was dismissed on the page before this because the sergeant admitted that he told him to shave or go home so that one charge of lying about being harassed for his beer was actually not sustain it was admitted that he had experience and then you're so here so the  being on the shift at work monday to friday he could get weekend overtime assignments that he wouldn't be eligible for if you have work over the weekend there had been that of course is an adverse employment terminations but that again how does it ten shift to seven your special ship will be in touch to make sure it's the beer is consistent so your lodger's a reasonable jury could differ as to what that means i think it's very clear what that means it's a threat take up that beard come back without that beer that's i don't want to deal with this by the way look at having the other officers the two other officers both testify that they were intimidated out of keeping the beer job just just to clarify for  purposes of my memory it wasn't a matter of beard or no beard was it i mean it was a matter of the trimmed beard of a particular one no no he had we have photographs in the record showing he always maintained one quarter inch  facial hair that wasn't my what my question is the but my question was that you went to what the requirement the employment requirement was they didn't say you cannot have a beard and all right well but we believe that they may not have said it but they certainly intimidated the officers into doing that what are they doing was getting rid of the beer entirely to all the other officers both black men both had facial hair most had this medical condition the same medical condition don't stop or question the waivers for two reasons they both said it was too difficult to go back every sixty days which we weren't allowed to present a trial that was actually bargain women a war no i would say that was too burdensome to go back every sixty days and that kind of intimidat harassed them into stopping to request a waiver and the other thing is that they also said that they felt pressure from their commanding officers not to request this waiver i don't understand a couple of things on the document that  you know bootstrap in the legal context is not usually a good term but it seems like you're taking a hostile work environment facts and saying that's what amounted to the constructive discharge which is fine if that's where you thought this really the reason why this was so important to me to bring forward was that it was not to get about i didn't appeal just yet there's only about your question your honor the mandela case and the cole well case specifically look at these things as it might be you have to show more because you have hostility and then you have constructive discharge and then there's a number of factors no bright one pass your absolute forget about the cases just for a nd i can't believe i said that what what is you tried to come back to work he can fire as soon as he got back he also testified that's the case why didn't they fire him before is how reasonable is that because he thought they were going to do it in the next particular occasion that they had they had ratcheted up this pressure remember twenty six and in that sixty days an officer who had exemplary record was assigned to a special shift couldn't do anything right and they found every possible reason they threw the book at and a jury could look at all these facts and it please the court my name is leslie greenspan and i represent the hour pelley the trustees of the university of pennsylvania the district court through the honorable jean ek prouder grants a partial summary judgment and in an abundance of caution and in an effort to give mr lewis every benefit of the doubt sent the remaining claims to the jury and we all know what happened with respect to the verdict in crime yes your honor and as you know the jury found about the superintendent yelling at him taking his gun having him marched out of the of the station house or whatever  there are a lot of facts alluded to by your adversary isn't there more than enough there with regard to that construct discharge claim that that should have gone to the jury as well respectfully no your honor the district court judge made a very clear point in her summary judgment order that yes there was enough to go to a jury for hostile work environment but as this court is well aware the burden for a hostile work environment is much lower than that for constructive discharge and therefore you can see from the jury's verdict it confirms what the district court did it confirms if it did jury found no hostile work environment but the lower burden then certainly there was no constructive discharge which was the higher burden three being demoted for a reduction in pay or benefits five dollars being in voluntarily transferred to a less desirable position six having job responsibilities altered and seven being given  satisfactorily job evaluations doesn't sat sound like enough to require the district court to have sent this constructive discharge point to the jury no your honor  council those are forward looking statements anything about his position for instance about his position being changed to shifting change that was forward looking and not something that in fact didn't wasn't scheduled to occur but is forward looking by definition is arguably yes your honor however there was no no change in his position there was no change and that's an understatement it's not about i mean for instance your have sort of made a point of saying he couldn't get could conclude that mr lewis suffered pervasive discriminatory conduct you know as we as we look at this the question is is there something for a jury look at  we think of construct a discharge we can say that the standards higher but as as she did smith just pointed out when you look at those seven factors and you think of them in the summary judgment context it's  it's difficult to say that that shouldn't get to a jury that mary well i am not disputing about is the law and that that is what governed what i am saying is that when mr lewis presented this argument at summary judgment the focus of his argument was strictly on his subjective feelings at the time and what the district court said was his subjective feelings and that's not all that's that that's true of any question that requires  i don't understand though what the import of that argument is for purposes of whether or not the district court got it wrong here or are you arguing some kind of waiver or forfeiture given which you say his focus was before the district court it's not a waiver argument your honor it's simply that mr lewis had to make the argument he had to say a reasonable person would have felt this way and based on some of the facts that you're honest pointed out during my opponent's argument such as the fact that he continued to be on paid leave such as the fact that he was approved for f m l a we the fact that he felt the need eleven days after he voluntarily left to send a letter back to penn saying i don't intend to come back ok well i need to go back and take a look at the district record but i what i really need for for understanding of your position because you you have invoked it several times is the significance would import for our purposes today of the jury's verdict on hostile work environment i'm not linking that because you've obviously not explicitly invoke some kind of you had said it was issue preclusion or some kind of collateral stock hole so i don't see how we use that today for any purpose let me please try to do a better that which talk about the fact that constructive discharge is a much higher burden than that for hostile work environment and my point is just the procedural matter of of taking a fact of a finding by the jury in opposing it facts were lied on here by counsel the jury heard it all for five days they considered all that they looked at these notes extensively they heard she flushed testified about one deposition about another deposition about the notes they heard it up down and sideways and they still said no hostile work environment and that part is here low low or at least in the reason the judge there is brought this on is because it is in fact i think a novel argument can the requirement for doctors notes every sixty days be deemed to be harassment i mean there is a determination in there in among the documents that it's a permanent condition so if it's a permanent condition what possible purpose could there be for mr lewis to find the time to go to a doctor to get a new gonna be the requirement for the medical certification every sixty days that is part of directive forty five directive forty five isn't titled appearance standards uniforms and equipment directive forty five has a built in reasonable accommodation and that is you are required as an officer to be clean shaven unless there is a medical reason not to shave you know but my mother told me that i was a good reader so help me get past this if it's a permanent condition what's the reason for having a note every sixty days well as part it's almost a quid pro quo if you will your honor a quid pro quo between penn and between the officer so the officer once this reasonable accommodation had it what's the purpose of it's a permanent condition it's not going to change well let me highlight for the factor per your honor that for the st six years of mr lewis's time at the pan police he was clean shaven so this was the purpose is to determine whether he continues to need this accommodation i believe he continues to have a permanent condition no whether he continues to require the accommodation he's requested and let's be clear about what accommodation he did request he that's what i asked you if i do not believe it could be a deal to last and heard the question great getting back to what accommodation did he actually request let me before you get into that factual issue let me ask you another legal question based in this in the statute with respect to the sixty certificate if i recall the district court concluded that guidelines says that a medical inquiry includes quote asking an employee you to provide medical documentation regarding his her disability so how do you square the court's ruling with the able to pry into whether an employee has a disability that's a very different inquiry from what we're looking at here here we're dealing with he's requested a reasonable accommodation and as part of us agreeing to give him that reasonable accommodation we've said we've got to bring in a no to show that you continue to have that need now when he if he needs to go and get a certification that no one has suggested he needs to go in for any kind of examination or testing or anything else it is simply come back with a medical certification and if it is in fact a permanent condition his doctor can write a note and it can as often as he goes and and we see this all the time where patients go in for medical people work in documentation it doesn't necessarily time if you wish your honour's if i may i'll briefly address the issue of that your honor still very interested in which was of course i lost my train of thought happens to absolutely right your honor and the jury found and the verdict sheet which is page five hundred of the record that he did not have a disability and was not discriminated against one or the other and reading all reasonable inferences in favor of the jury's have begin with b the question about whether the verdict can be used to affect in any way to summary judgment and i think the answer is absolutely not it would run afoul of the standard  what the jury decided has no bearing whatsoever and none here i absolutely would it's and besides i think if you look at the the cases the talk about what effect a judge's ruling has on a on a jury being told and two he just decided to say i don't feel it working hand here anymore on his own and we're not able to use the power of the threat with this charge the less desirable assignment all these things that happened to them to let the jury say and remember these notes here that we're looking at we didn't have them in your original discovery period i took the deposition of chief rush and made twenty seven thousand before these notes were produced she said i don't recall seventy three to sixty nine a day on september th two thousand and seventeen the chief says i saw it the st person i ran in the next day i told to research this and it wasn't about researching it it was find out why he's walking around with a goatee he also said she also said i don't know whether it was an inch europe or of an inch i don't know i just didn't like seeing it hanging down she said when it came to the discipline about did you notice anything about the beard she said of course i did that's the whole reason he was there others that go beyond or somehow rise above the severity of the facts giving rise to the claims themselves you're really outrageous what more could this court do then then the district court did with respect to the the interchange the it or the exchange between attorney