in the very first instance the district court erred in applying or analyzing whether or not it did ok so what then thank you then having established that the court erred in the way that to determine whether or not continuing headaches dizziness night vision it is at least a tribal issue a fact now then of course having established that there is the cause ation question which the district court did not analyze having assumed that there was no disability so he didn't even realize they causation issue in the first place the court did in ally's the question of pretext after that the respondent school had submitted evidence primarily in the form of a series of performance you ations suggesting that the lady was fired or excuse me her contract was not renewed after fourteen years for performance reasons the same evidence that we submitted regarding causation also supports pretax and course case law is clear that we can do that and the reason that it does there are a couple of reasons as to why there is protection on this what's your best evidence i do think that the pretext question the question of whether case are very closely related i think you rely on a largely the same evidence for both of those so what is what is the principle evidence that she was fired because of her disability where on of course there's no direct evidence because nobody on the other side was transparent enough to say that but there is evidence circumstantial evidence which can be strong evidence which supports the inference or that it a reasonable trier of fact could draw the inference and there's a couple of them one it doesn't really matter which one you get as long as you get one of the problems under the statute so in terms of of pretexts your honor we first off we have the need to out it's now the district would i think not i think what happens when you put those witnesses on the stand that probably an objection to their opinion as to why they were fired is sustained but that they're able to get up there and they're able to say i experienced this disability i reported it to mr daley mr daley treated me different after that mr daley did not renew my contract after that and in one case one of those people also says mr dealey also told me as he apparently told ms baker that there were numerous complaints about me from parents and other people but he refused to show me any documentation from that so there's a pattern happening within a couple of years of each other where somebody experiences  a problem on campus that leads to a disability and then he does not accommodate their disability or he treats them differently after that then he does not renew their contract and he tells them oh there were lots of parents complain about you but he has no documentation for that is the same thing that happened in our case of course where one of the justifications he offered for for the refusal brief renew her contract was well in seven years i've had a dozen parent complaints about you well do you have anything to document that well no i don't want to have anything to document any of the student complaints well no i don't there comes a point even under against which is from this ni are not documented there's there is no shred of evidence in this record that shows that over the seven or eight or however many years he says he was receiving complaints from either parents students or counselors there's nothing contemporaneous with any of those alleged complaints in the record the first thing that we see is in that twenty thirteen performance evaluation where in a comment he says michelle we've talked about parent complaints before and  of complaint well yes your honor so he comes up with a couple of different reasons i guess depending on which one he likes best at the time so you've got to me to evidence and you've got timing i've got timing and you're on and then if you explore the time in my between there she has the august twenty three entry she returns to work on september three in the period as well in there she files a worker's compensation claim and she and i thought i had the exact date of that filing i don't have and i apologize but she's also taking off time from work for doctor's appointments october eleventh october twenty fifth november november twenty sixth and a week after december twenty sixth he says michelle is there a way in the earlier evaluations to the principal your honor in the two thousand and nine evaluation i think it was an assistant principal that did it it was not mr daley and i believe that that protocol allowed one or the other to do it right but there's some interesting in the earlier ones was a different school  your honor what happened was in the very early ones then the two thousand period it was the university of san diego and then the archdiocese closed that and opened cathedral high school is basically a continuation of one to the other so it's the same school under a different name but under this under the same archdiocese and with the same in your view was there a difference between you and in january of two thousand and thirteen and the other evaluations  a difference yes your honor i think there was in fact if you if you go over these evaluations except for the two thousand and one which is on a different form you can actually compare them across pretty carefully there are forty five boxes that can be checked under each of the different standards is seven or eight standards overall forty five boxes if you go back to the two thousand and three evaluation of those forty five boxes there were thirty four ticked meets expectations six ticked that it was actually an area of strength for her and five that needed improvement now in their answering brief the diocese goes back and forth between the two thousand and three and two thousand and nine the two thousand and thirteen evaluations but if you look at that compare the two thousand and three to two thousand and thirteen you'll find that of those five areas where she was found to need improvement in two thousand and three only one of them remained to require improvement and twenty thirteen if you compare if you do that same box by box comparison between the twenty zero zero nine and the twenty thirteen you'll find that of there were seventeen boxes marked need improvement in the two thousand and nine review and yet for four years or three years they continue to review her renew her contract and give her a radius but you'll find out of those seventeen she improved in thirteen that she raised them from area of growth needed to meet expectations and in two of them that she actually and tim up to area of strength so to say that well she continued to exhibit the same problems and she didn't improve whatever that's not true based on the objective evidence here and that is another thing that goes to show pretext because if they rely on something that is not true then that is something that every simple trier of fact could draw the conclusion that maybe in order to make it seem like she was a worse teacher then these suggest in the answering brief they discuss only the broad eight standards and they don't go into each of the individual boxes and compare them with the previous with the previous ones one of the things they do point out is that while she did not open class with a prayer and she got ticked on that for any area of growth now when you go to the very end under  meets she met standards for complying with school policies practices and procedures this seems contradictory and could be another thing that could be used to argue a jury that this performance evaluation was really designed for something more than evaluating performance when you put around it the circumstances of it where it had been several years since she'd had a performance review that she was handed the review along with her and her advisement that she wasn't going to be renewed for the following year at the same time rather than following had never parents been given any warning that she was going to be but that she need to do  policy of giving these things your honor there is a discrepancy in the record there's a diverse opinion in the record regarding this ok according to the archdiocese the faculty handbook makes no reference to that according to mr dealey in his testimony he said that he did follow a progressive progress that started with oral point to written and that he had a variety of other things that he could do perhaps place someone on  morning your honour's may please the court my name is scott dixon and i represent the roman catholic bishop of san diego you as i'd like to focus the court's attention on the threshold requirement for baker to prevail on her disability discrimination claim and that's whether she was regarded as having impairment is that term is used under the amended eighty eight the amended eighty eight doesn't define the term impairment but the e e o c has promulgated a regulation that does and that regulation neither side disputes the validity of that regulation in this case school regarded baker as having a physiological disorder or condition when the decision was made not to offer her a new contract and for that reason alone her claim fails and summary judgment was appropriate i think you knew that she was that she had  she was continuing to report to c s headaches and so on right that's right but they also knew and this is in the record is that baker would periodically answer would periodically bump into dealy on campus and tell him that she's but the focus of the regulation isn't on symptoms the focus of the regulation is on disorders and conditions and that has to be something more than just symptoms so again taking the evidence in the light most favorable to baker the most that they aren't that he actually knew  details of them but she did submit documents called work status reports to the school and what those report said is that she was cleared for work with absolutely no limitations she testified that she had no limitations at all at her job deeley certainly had no reason to think she was afflicted with any sort of lingering condition or disorder quite the contrary the most that the record supports is that he thought he had unspecified headaches and dizziness and that is simply not enough to meet the regulatory requirement of a disorder or a condition could you respond to the question about whether or not progressive discipline was followed as a matter of part was what i missed a deal he said he did even though it wasn't in the hymn book yes your honor and that of course goes to pretext a rather than the  threshold issue of whether she was regarded as disabled but on that pretext point of course the handbook doesn't mention any sort of progressive discipline policy right dealy in his deposition didn't mention a policy either he just said that that is something that he would do on occasion is that if there was an issue of teacher misconduct it first he could address it with verbal warnings and it could escalate to really talking about an actual practice was opposed to a policy raised talking about something that he could do and the fact is did not follow the actual practice in her case well in her case the situation was different the decision was made not to discipline her the decision was made simply not to offer her a new employment contract the way the school is organized is that each teacher is offered a one year contract and then the decision is made whether to offer a new contract so it's a fresh decision it's not a matter of discipline it's a matter of whether a particular teacher meets the standards that the school expects and is offered a new contract for the academic year so for example if there was a situation where teachers could be arguing in a hallway loudly or something that might call for a verbal warning but there's no indication that we're teachers are having performance problems like this a system of progressive discipline was you because it's not a disciplinary issue it's a performance issue i'd like to turn back to the threshold disability question for a second so as i just said there's no evidence in the record showing that dealey or anyone else at the school perceive baker to be impaired but even if the court disagrees baker's claim still fails at the threshold because any such perceived impairment novo it's not bound by the district court's reasoning and the court can affirm on any basis supported in the record and so one of those bases for affirming is that even if well you know when we say that we say that and then other times we say i think more accurately if was raised  duration of six months here there's no indication at all the deal or anyone else thought that the headaches and dizziness would persist for more than six months and the impairment was minor because it didn't affect her ability to work were to do anything else affecting her daily life so for that minor now minor is not defined in the statute but if it's to mean anything it has to mean a disorder or condition that is minor that doesn't have much of an effect and here that's all the evidence because she again worked without problems could take care of herself drove back and forth to work etc so but it's broader than work right it's broader than work i would think it just that i would i would think that minor means not having a meaningful effect on her life and there's no evidence here that any impairment and we think there was no impairment but even if there was had any such had any effect that was more than minor so on the pretext point what distinguishes this case from the cases that baker allies on in our briefing is that she doesn't contend that the school's examination of her teaching and the results of that inspection were trumped up or fake or anything like that she doesn't dispute that at all to the contrary she has a document documented history of performance problems delia's right up corresponded pretty closely to the history of performance problems so one of them several things first of all you know he says hi ira concerns from students and parents about a performance but he never names any of them of any of it so right well that's not in the record your honor right well i should say and as you pointed out in opposing counsel's argument there is a record of in his declaration of specific concerns raised by different faculty members but there is later but i mean the fact of the matter is is opposing counsel agreed dealy is the principal of the school had every right to be the one glance of an answer the question is what he and she was a pretty checks to be says two different things about why it is doing it that's consideration air was in fact no warning i mean it's odd because the whole evaluation reads as if he's going to continue her and he tells her she should work on this and work on that and on the face of the evaluation from saying look michel you're an experienced teacher these are problems that have been raised before with you you haven't corrected them and your future at the school needs to be addressed and the fact of the matter is this isn't a situation where the problems that  identifying and baker's teaching had anything to do with her purported impairment you know quite the opposite these problems not getting the class with prayer not controlling the classroom getting a math problem wrong a second coat in this area well that speculation b herself doesn't think that baker herself has testified uniformly that she doesn't think her teaching was affected by this at all so again the the most that she has to support her pretext case at the end of the day is speculation there's no direct evidence and the circumstantial  product of forbidden disability discrimination but that's not the claim me no jury could correct they would there's not enough evidence on this record to support the finding of pretext so there's three distinct reasons these other two other people say that they became disabled well the meaty declarations you're on are quite different i think no reasonable jury could rely on them there's lot an off declaration says that she had a history of glowing performance reviews then she ended up wheelchair bound and then was not offered a new contract so here by contra in those areas i think this is covered in a lot of detail in the briefing so while there might be ok but that's not your standing here now now i understand and what i what i'm wanted to say was that while certain areas might have differed a little bit the big picture was really the same that there were certain major glaring problems that were uncorrected and those were problems having nothing at all to do with any purported discrimination but there were problems that led the league to conclude that this teacher wasn't meeting expectations that she had been given an opportunity to improve and that she hadn't improv in the school had every right not to offer her a new income employment contract so this course should affirm because there was no perceived impairment even if there was an impairment it was transitory and minor and in any event there's no showing of pretext so unless the meant to cover something like the cold flu i get pneumonia every other year knocks me out for four weeks that sort of thing is transitory or minor in this case even if you take six months your disability must last for six months she became disabled on august twenty third when she had the fall and she was still having these problems at least there is evidence to suggest in february which is coming close to if not exactly six months i haven't done the exact math so i don't think that's an issue as far as well these problems were not affecting her teaching that's kind of a catch twenty two of her problems have legitimately been affecting her teaching so that she could now work there might have been an argument that this would have been a legitimate reason she would no longer be able to fulfill her duties so she's always maintained that she was able to fulfill her duties despite her disability even if she had to overcome that so that's not really  question the credibility of that he's the principal he's supposed to know what's going on you have to you have to submit he and he said he knew what was going on with his faculty he knew she was out because they had to bring in a substitute to cover for when she was not there the application for leave to take time off to go to these had to be approved by either an assistant principal or a principal i'd have to say why should i said after it's a doctor's appointment yes i'm  sure they're on the record actually on a request for leave and i'm not sure whether they say exactly why i think in one case she was going for i think it was a cat scan or something like that i do think it says specifically that that was the case i think it defies logic to suggest that a competent principal doesn't know when his teachers are taking time off for doctor's appointments and again he didn't say didn't know he didn't pay much attention but he said he didn't know why he didn't know why except that you know she says i ran into him every week to ten days or so and i told him i was having these problems with dizziness etc etc etc and then of course there was the worker's compensation claim that was filed that could very well have come across his desk admittedly i don't have evidence of that but that's another credibility issue it defies credibility that he didn't have at least some idea of what was going on and he says i knew she missed some faculty appointments honor i don't know how to explain the standard that counsel suggested as your own points out really tends to go back toward the old sutton standard that's been discarded well it wasn't affecting her at all well i think the reason for the amendments  not affect their daily lives on a day to day basis and yet other people regard as suspect and and as i use the word the kids would use ok people are afraid of people who have had cancer for no reason and yet haven't had cancer is one of those things that many people would consider that they didn't want to have you around they didn't want to hire you and so the amendments were there and  statute instructs we have to give this a very broad brush precisely to protect people who may not be affected in their day to day lives but who are the subject of prejudice because they are having a problem or it's perceived that you may have a problem somewhere down the road because of this and i don't want you here i even don't want to hear because you make me feel icky or because i think you're going to cost me more money down the road your time is up thank you thank both of you for your argument  the case of baker versus from a catholic archdiocese for so many and we are in recess thank you