are only two the failure to a comedy claim the two challenges are and one is with regard to exhaustion and one is with regard to the waiver below unless you have an interest in one o and nevertheless held that the exhaustion or there was no problem with exhaustion and the last one i'd point to would be we were hold for a serious which is a district court case but it's very should point to something in the record that states the claim that you're alleging was presented yes if you're looking at the doc and yourself on the first page what's the our number number i'm sorry i don't know i would have to go through my the truck talks about being subjected to discriminate treatment based on a disability on the second page and so i think it's only a one page document going after davis for select from the guardian may not be a jurisdictional argument at the same but it was raised in the district court that she was bringing an accommodation claim you say it was where in the district court record that she argued that she had an accommodation cl because there was a sufficient record to make if there were days if there wouldn't an accommodation claim require us to know things like whether her position really required her to be in the office or whether it could be done at home and whether and fact issues like that that were not process or not how about whether it was a reasonable accommodation given the requirements of her job well she says in there that i could do i was doing my job without the accommodation but i need the accommodation and everything i did which was working on a computer and phone calls and occasional visit could be done this whole at home to swells at the office she said that the problem is so what's the issue that keller was time out about until we get a new system what's that about until we get it i think as a new computer system it wasn't entirely clear to me what kind of system but there seems to be some issue on the other side about whether there's some development they're waiting for that would make it easier to work from home  but if you haven't been making the argument so they didn't know they need to develop this argument that how do we have a developed record on this claim of accommodation let's discuss the deposition the problem of the problem is that the most is information what is  allowed to work at home on a ridge and she told she was going to be able to no one has ever told her if there are essential functions that she can't do at home no one's ever told her what they are and she certainly doesn't aware of them and if there really is an undue hardship as required by the case law and by the c f r they have to see what it is but they haven't but one time in this eleven months to they ever say to her we can't do it because of such missiles ever and the reason she has argued at the summary judgment was pretty candid in the difficulties you face but those difficulties you've called here we face to the that but it is the m p o isn't a do over we look at what happened in the district court and the reality is that your your client's counsel did not present that issue and tee it up for the district court and i hear you but i'm not sure there's anything we can do about that well i think i mean obviously this was the germination i had to make the myself when they first came to me and said we  it occurred to me after i read the deposition and the exhibits that they came in with a summary judgment motion that and all of which were going to be in the record that there were more than the facts to feed to feed summary judgment now there was an i don't know there was enough to win a trial it should be there are lots of material facts on every element that are disputed the district court i believe overlooked a lot of those facts add an exercise the fact finder job with which it wasn't supposed to there are i mean you could pick any example of a there's a well let's look at the pay and much your argument is that she's been discriminated against with regard to pay the pay raise her sat before disability was a down if i did the company and she was the one of the things cited is that the person who hired her expressed exasperate that she didn't know about the limitations when she was hired so she's got to pay rate that presumably is set without reference to any any disability so what's the problem here well because now eight nine months later what happens is they're hiring these two people who are not qualified have not produced anything suggesting they were even qualified but since it's all your problem is the fact that as soon as they were hired they were put under wood for her to teach her to monitor her to supervise who would who when does the supervisor supervisor ever have fewer call could qualifications and experience than the person that she's teaching and monitoring well the person who was there first i mean that's pretty common you wind up to the person who is there first winds up the person trying to trying to train the person who comes in next i mean that's just how the sequential hiring systems often work well you know question your client was there first but that and the notion that she's been unfairly treated somehow i mean and there's a real disconnect as i look at this between her claim that it's based on their resumes and school transcripts into coverage martin did your client seek information about their qualifications and discovery versus if you looked at the real discovery so at that point that's on your client right she can't show their similarly situated if she didn't ask for the information in discovery as i understand the problem here and my view is this is a standard is could a jury on this record that without having disability and the have a long list of things not just outside the three hundred appear but within the three hundred day period it was continuous and rodriguez who they saved me the decision in fact rendered by a killer and killer was the one who was behind this decision  i'm taking over time i mean that's the focus on this one her pay rate was set without knowledge of her disability yes the company subsequently hires two more employees wind up giving them higher pay rates is that the contention and so we know that your clients pay rate wasn't pressed down because of any disability your contention amounts to saying the company intentionally paid to other people who weren't qualified more because they someday learn about it and feel upset that's too strong a statement but i think keller was was fine with it happened that way the killer is but for discrimination we need an intent to i mean there's a total disconnect here given the timing it doesn't make sense i mean we can't even assume that they didn't make more money just because the market had changed and now you need to pay employees more because it's more competitive job market i mean there's no way that we know that because someone made and didn't want this person around almost everything that happened after that time i believe was trying to get rid of this woman including the cheap of her in august two thousand two thousand and nine now we can say that just sounds out of circle because  disability given that background combined with the fact that it appears that she was the more qualified person because she was supervising training these people a jury could decide who would decide that this was a discriminatory event decisions in strategic choices that were made by her prior counsel while before the district court plaintiff has plaintiff is attempting to remedy or circumvent these decisions through this appeal but this is not the proper form for that issue in those  to accommodate claim below in fact she did the exact opposite she asserted throughout her employment and then throughout the litigation that was she had a disability it didn't affect her ability to do her job in any way shape or form and this is reflected by in her ios she charged which is would excerpt of record to fourteen doesn't make any mention of requesting or being denied an accommodation in the e e o c i'm sorry e e o c intake questionnaire which is that you ph excerpt of record sixty one and sixty three she specifically answer to question the few requests from the reasonable accommodation with no and then leaves the section of the subsection of that question blank where it's requested what accommodation did you need who did you ask disparate treatment claim that it was a benefit of employment granted to other employees but not granted to her as such you ph is most recently judgement didn't include any substantive argument about a failure to accommodate because throughout the litigation throughout her employment she never made any such claim to wit during her deposition she stated at least six times that her disability did not affect her job in any way in that she did not need an accommodation or any  anything from ph to perform her job other than being allowed to take time off from work and there's no dispute that she was given all the time off she needed to go to these doctors of course is the intake questionnaire that you just cited this at the e r sixty one it would have been part of the subpoena documents from the e e o c but whether it was attached to the charge i'm sorry i can't tell you so so as i said during six times during the deposition she denied that she needed an accommodation or that there was an issue subjected to unequal treatment because she was paid less and not given such benefits such as working from home as other case managers that it set would excerpt a record seventy seven so that is she setting up setting up and explaining the quintessential disparate treatment claim that she was there were as this benefit working from home offered to some employees but not to her and she was positing that the reason that benefit wasn't offered to her was because of her disability she never claims in the complaint filed anywhere or in th opposition to summary judgment is yours pointed out that she was requested or denied an accommodation furthermore in her opposition she does point out that there was a claim in her complaint that she believes you ph did not move on at summary judgment claim was brought sufficiently before the district court so that it could rule on it and generally under research court first as westport a party must specifically distinctly argue the claim and that simply did not occur here in any of the facts cited by i'm sorry the cases cited by plaintiffs don't really apply to the situation at all if you look at i think it's a logical rights foundation versus p g any rigs versus program raphael and tipple versus edison international those are all cases where a plaintiff or perhaps a defendant is there's some defense issues and they're brought theories of relief or theories of an affirmative defense under a statute but not all of the possible theories of relief under the statute once those were raised that could be supported by some of the facts in the record that we don't exactly argue them specifically in the court held that's not enough this court held that's not enough you have to specifically raise these arguments you didn't raise the arguments and so that the fact that there's really some facts in the dispute it now but in the record below plaintiff admits that martha rodriguez her direction proviso in the person who set the pay raise for these new employees did not discriminate against her because of her disability and generally didn't think she discriminated against others because of just discriminate against disabled individuals in general and so these decisions were made solely by michael rodriguez without the input from keller the records clear on that despite claims his contention to the that there's a disability so her pay rate can't be influenced by the disability and then we have margaret lida and diane as he wakes up like martha who point to the needs to not discriminate against her so we have no decision  maker in these issues and even there even being the possibility that they had a new screen and tori animists i guess the argument would be that maybe the market changed or for whatever reason she could have been paid born she claims would have been paid more but for the fact that her supervisor didn't like or discriminate against her on the grounds of her disability certainly this plaintiff's argument but please need to provide some other evidence that either she requested a raise and it was denied or looked at the difference thought that it was justified certainly found no evidence that it was based on any discipline or i'm sorry discriminatory animus and so it chose not to change the the pay rate i think what plaintiff would have to prove here is that there were other individuals who received pay raises during this time and she didn't or that you ph has been presented with a situation in the past raised everyone's level to a to raise everyone's pay to a similar or closer level where they saw that there was some disparate paty between the employees based on their qualifications but there's simply no evidence of that here it seems somewhat circular for plaintiffs to argue i thought i was paid discriminatorily the company looks at it decides that's not the case and then they're going to still discriminate against her or retaliate against her if they don't raise her pain to what she asked when there's no wonder lying reason indicating that the pay was based on an inappropriate reason was it perhaps unfair maybe we'll never know but there's really no evidence that it was based on any discriminatory animas for the record indicates that martha rodriguez who hired these individuals and didn't have any discriminatory animus these pay rates came from individual negotiations with these  that these employees did have qualifications or i should say experience because there's an experience in qualified for the job experience is one margarito could speak spanish and diana had more experience or previous experience as a case manager not specifically an adult case manager and that's reflected in the the transcript of the conversation between plaintiff and miss keller and so plaintiff has not demonstrated that she was comparable or similarly situated with respect to each other individuals based on their experience whether they certainly work the same job into the same task but we're talking about pay the similarly situated has to be about their experience level and there's nothing in the record that indicates that plaintiff was more experienced in these individuals plaintiff tries to make hay out of the fact that plaintiff trained these new individuals when they started and cites numerous case law for that proposition but all that case life think is an opposite it is those are cases regarding internal promotion cases where you're obviously evaluating employees who are similarly situated to some degree applying for a job and then when someone one of those employees gets promoted but the person who claims discrimination wasn't but has to train the other employee then it is an indication that the qualifications were different here here we just have a situation of as your honour's indicated sequential hiring so these margarita and diana were hired after plaintiff plaintiff then changed them for the new job but that doesn't mean that they had experience or qualifications that plaintiff did not have i wanted to touch him briefly on if you don't want any questions about the disrepair the waiver the retaliation claims  august two thousand and nine hotline complaint she made by among the by with these four incidents of conduct being required to meet with color after the hotline complaint being accused of missing more work than she was supposed to being asked to fill out eighty eight paperwork and plaintiff claims that this conduct that i just listed also supported a constructive discharge claim under arizona law the district court all to me held that wasn't the case and that's not an appeal here but for our purposes these claims are exactly the same factually they're also rules on an eighty eight claim in an accurate claim or even for that matter the title seven an actor claim it conducts the exact same analysis because their eggs subject to the exact same framework whether that be how the prime official case is established or mcdonnell douglas or in its opposite in its motion plaintiff addressed them in her opposition and then in the reply in the court certainly did an exhaustive analysis of whether or not the retaliation standard had been met under the a b a which is the exact same as the acar so there was no need for the court to engage in both two separate analyses one final note with respect to the had her sections plaintive the parties agree on the standard that the adverse action senate is reduced in the retaliation framework and that it requires only that the conduct would reasonably deter future protected activity please his view of this standard however sort of takes it to the exact extreme where if a company in response to were trying to deal with a complaint did anything to any personal personal action with respect the employee other than saying your complaint is one hundred percent valid and we're going to provide you the remedies you requested any of that person election is going to be have a deterrent effect that's simply not the standard that has to be some conduct that would encourage the point not to do that and i think the court did a good analysis that there's none of that in this case if you don't have any questions thank you thank both counsel for the helpful arguments the case just argued is submitted