recently representing johnnie davis may please the court counsel this is an appeal from a decision in conway freights favor on a summary judgment the district court found that decision appeal that is so the issue before the court is did the court err given the substantial evidence to the contrary substantial evidence to the contrary tell us just one part of a pool of evidence to the ground  there are multiples the first so there are a fourth if one were to simply read the district court's opinion there are four key areas that were not highlighted that were missing if we were to just read their opinion this isn't both heathrow an her humor i don't know how you say that name testified that they didn't know they did it the substantial evidence to looking for other evidence in the record would contradict that  and i want to point i want to serve two minutes for rebuttal if that's possible the evidence of the suspension and the facts surrounding the suspension and that davis was regarded as disabled at that time was completely ignored by the facts  by the court below and the significance of those they're intertwined in extra completely the suspension with the terminations and it's the evidence surrounding those facts that i want to highlight that's uncontroverted facts that establish inference of knowledge of the cancer and actual knowledge of this is what we know yes this is what we know because we've read the briefs thoroughly that's what we just really want to focus on you needed to raise a material issue of fact about this point in tries very specific in this case that's why we're call your attention to it so so what tells us there was a material issue about the whether the decision makers knew the first is a telephone call between johnson in with roe ok it happened on the twelfth in the morning between eight and nine a and during that call what we know and what's uncontroverted is that johnson told his boss with roe at that time that two people had come to him to rel who is the person who helped johnny davis into and was concerned about his state into the building when he was crying and shaking and mark am who is the safety instructor of twenty five years who when johnny davis his first concern when he saw johnnie davis was his does he need medical attention at that time davis told cam he wasn't feeling well he hadn't been feeling well he was having issues with his health problems with his medication and generally was having a rough time that's e r eighty eight paragraph four but you're making a claim of disability discrimination yes so it's and the disability look amy are correct yes so i'm back to the question that i think my colleagues have been asking you what evidence is there that these two decision makers knew of the disability that mr davis might not be feeling well after his epi after this episode on the twelfth what evidence is there that they knew he had leukemia because that's the disability relied on there are there the evidence is regarding the phone call that have you just refuse talking about the phone call but there's nothing in that phone call that would lead me as a decision maker to have any knowledge that mr davis had leukemia we know he was very upset and there were people who were worried about his health but tell me what there is that would give the date gave the decision makers any notice that he  the phone call is truly important because the purpose of the call was johnson calling his boss and telling him we've suspended somebody without pay that is an adverse action because he's unfit to work b damage to the unreported damage right no actually there's no evidence in the record that that phone call had anything to do with the unreported damage will blow up that morning and to tell user to user a strict legal term he blowed up at the supervisor could they fire him for his insubordination to the supervisor they could there could be discipline but that was not what the discipline was for there is nothing in the record to indicate it's anything but because they knew he was unfit to work because he had a reoccurrence he had his can't who's under tremendous amount of stress at this so go back to my original question whether or not you think it's important i do tell me what evidence there is that these people knew that he had cancer the evidence is that it was because that phone call doesn't help you on that point in my view so tell me what else ok so besides the fact that there was the phone call there was an a fax sent at the on november twelfth and facts on the november twelfth which is a twenty two page fax that happened before the second fax that the district court focuses on is the out of service now apologized for going back to the phone call the fax was sent because with rose said send me the statements of the three people who are concerned about his health and put it with the out of service documents which had never been filled out until unexpected until this turn of events suddenly on the twelfth  that now this out of service is being filled out for a week old routine error and so it's not all there is for it to be fair it's the seven days before but if but the policy says that you immediately put somebody out of emotional ok to the disability ok fair enough that's what you're saying i'm still trying to figure out how the decision makers knew that he had leukemia because tell me that mark cam's note says he's going through some health issues he's unfit for work and he's had a record since two thousand and four of leukemia in the local personnel manager file that the local personnel manager testifies he takes things up to his boss all paperwork go through her and what else ok so you're so you're the best evidence you have it seems to me is that some documents passed through the hands of one of these decision makers in which had they looked through them they could have discerned that he had l i want to know the focus of my question well you know you may not think it's important but then again i do tell me what evidence that these two decision makers are the ones who decided to fire him there is that they knew that he had leukaemia not that they knew that he was upset or that people were worried about his health or any other general issue tell me what specific evidence there was if they knew that he had leukemia the slice in time of withrow there is only the peer sends an email to johnson not withrow so and then withrow agreed with piers that he shouldn't drive so i didn't complete my comments on the twenty two page fa yes that is that there is an we know there's i mean oh i'm trying to do is i looked at what it is peer sent to johnson i have nothing in the evidence to say with regard it all i know is that with row agreed with peers that your client should not drive but i don't find anything in there that the not driving as anything to do with the disability the it has to do with the way he was acting on that particular day which no one said related to the disability it was just the way he was acting everybody was concerned about his health at the local level everybody is talking about his health on the twelfth withrow asked for three statements the out of service says include statements on the twelfth a document a sent that's twenty two pages three pages of which are missing in the record and in those three pages those are the statements but and this is in one sixty seven to one eighty six if you look at the last page it is a confirmation of the first page and it shows nine hundred pages only in the record that importance of these and it shows a twenty two page fax when an error two to two the importance of this fact on the twelfth is that she asked for the statements a jury could infer those statements were provided because they are required under the out of service which is only filled out if there is a terminable offen she asked for them and at the end of that day at four pm she got them ok i understand your argument what about the time what about the cam typewritten state that i don't know that that was ever received by with diapered so the importance of that again is looking at a slice in time first an inference can be made that it got through it was the one of the three missing pages second johnson admits he told his boss with on to the conclusion through the inferences that it go through in order to make your argument you don't have to get through to that inference unless you want the direct evidence you have johnson saying he told his boss what cam that cam had come to him and that's at three three one two three three three in the back area of this particular statement express did not express anything about the games it's said that he was going through some health this but the but the point of that last sentence which is not which cam says somebody typed up for him mysteriously which in and of itself is suspect is that it says the theory of the case that is  position that he should take time off due to his health and focus on getting well and safety which is the code word for help he's going through some health issues has been under a lot of stress and should take time off to get refocused the adverse action of the suspension itself is related to his health and being unfit that deserves a jury trial in and of itself but this is spent in is inextricably tied to there isn't isn't is bad health a disability for purposes of the act and being yes if you're being deemed unfit to work and regarded as disabled and regarded as disabled as well that's all that's a lot of additional facts other than the one i'm asking i'm just asking you say his employer said well he doesn't seem to be in good have to be true if he were fired under those circumstances and they cited the accident and the meltdown as you call it would that be sufficient to show a nobody has ever been fired for this before in the company for people to know what they have is there's been a situation in the company before where somebody failed to report it accident and then had a meltdown a week later no there's no and nothing in the record to say the meltdown w cause of the termination not even in the briefings they're saying it's in consequential there's nothing in the record to say the meltdown was insubordination so do you have do you have evidence that other folks failed to report accidents and were not fired or do you just have there's multiple places in the record this could be one so if the e r so garcia and ruth are the two individuals who weren't fired because they it is at two twenty to thirty two to thirty seven and to twenty to forty two to five to forty three for garcia that he caused an accident to thirty five know the cause of the accident that's not the question i'm asking bill they fail to report the accident yes they caused it fail to report were put out of service in one day had prior history had a second both of them had second to fit fifty five forty one violations which dart with davis did not have and both of them had prior discipline which davis did not have and so your position is that the meltdown  was not one of a causes of the adverse action in this case my position is he was regarded as disabled that day and it is no highways no don't don't please just i'm asking a very simple question your position is that the meltdown as you call it was not one of the causes for the adverse action that's not my position ok so did you try this one more time then what is your position when he was regarded as disabled he was does not buy the decision makers when you keep thinking out and i just want to be clear for the decision maker is with ro i know that she affirmed to be regarded as disabled as unfit to work and the suspension without pay on the twelfth yes but  maybe i misheard you did you say that you think there wasn't evidence of insubordination there wasn't evidence that he was written up as insubordinate and that was the reason for the termination there's ok i'm looking at this is the dean pierce right yes i asked him to go get the paperwork and bring it to me and he said he was not moving from this spot i gave him an order to go get his paperwork and then he can punch out and go home and he said no i'm taking a break is your is your characterization of this that this was not insubordination my characterization is conway did not write him up or terminate him for insubordination that's never been an argument they've made it's not in the record that that was a reason for terminations at the be level thank you i think your time's been yes  is understanding we do have the two decision makers here the final decision maker was mr schumer and ms withrow recommended terminations and as previously discussed here there isn't evidence that either of these people who were in denver had never met mr davis in their lives to this day they don't have to have met him it's a large outfit and others are going to her argument i think your strongest one is that he had been ill for a very long time yes and then he had a series of  receiving that documentation isn't that our strongest circumstantial evidence that with the new i don't think she even has i think that's even though here's the question isn't that her strongest circumstantial evidence that with revenue or is there stronger i certainly don't think they're stronger so ok so let's just make sure there's nothing about quite frankly or why not why not isn't it was sure that the throw became the person who received that information at some point who would have received it i don't know whether he actually requested time off during that segment after withrow assume those duties i'll give you that i and i look for it i can't find it yes but but i'm i just really want to make sure that we've got the facts right because there's a lot of fuzziness and you know what i think we sound like all three of us a kid tried to carefully make timelines here yes so is it correct that withrow became the person who would have received that kind of documentation if it had been forwarded no i don't believe that is correct your honor well who would i think if somebody else in h r there wasn't i believe after other conversations or other circumstances may have if you will transpired with role did not necessarily know about them in the position with r was and therefore you're saying with roy has no knowledge no actual knowledge i am saying that she testified that she has no actual knowledge and i only and her actual knowledge but i guess i'm going to  well just a little bit if she goes into the same position as the one prior or the one who should or would have received all of that knowledge how do i how do you get away with saying well she didn't know it so therefore there is no way that this case could provide it seems to me that when she gets the position she naturally have the knowledge of all those who are in the position before and should have acted with the full knowledge of the person who was in the position before she can get away with saying well i'm just new on the job and therefore i can do whatever i want to do mad your honor may i back up and sort of make if sort of  threshold point that i think is really important here and kind of getting lost in the shuffle and that is if we think about almost any discrimination case that that this court would typically deal with the decision makers are well aware in almost every case of the person's protected characteristic so if this were a gender discrimination case say it wouldn't be lost on the decision makers that they were terminating a woman or a man whatever it is or if it was a race discrimination case the decision makers typically are aware of the person's race awareness of the protected will agree and we know that it doesn't get us so where the so that's not the issue here is let me try this question slightly differently ye what significance is there that the file passed through binny hands in the in the company and eventually made its way up to the decision makers they say they didn't read it or look at it number four the decision was made but can we infer from the fact that it was available it was in the department at one of them headed that it's possible that they read it could a reasonable mean that would be no more relevant then that in a gender discrimination case the decision maker knew that the plaintiff was a woman that doesn't get you anywhere in terms of advancing the ball you know but this person this court in this case based its findings as i a violation of that for which your client then has to come back with evidence that there was no pretext no your honor because the the primal facie case has as four elements to it and you've just named two which there which in your paradigm he has made out of course yes there's an adverse action and actually in my paradigm to and of course yes he's disabled but was he performing his job satisfactorily at the time of the discharge that's critical there's a question of fact about that he says i was yeah i had a minor mishap but most people who had that minor mishap don't get fired so there's no evidence of that well your colleague says there's evidence that other people had mishaps didn't report them and weren't fired my colleague respectfully misrepresented that fact both those individuals were fired for condit mr garcia and mr royce or were both fired for the very same conduct failure to report an accident so  is there no evidence of somebody who was not fired all the evidence in this record is that everybody disabled or not disabled who engaged in this conduct was that's why i asked your colleague that question because it seems to me that if i come at this case in the traditional way and say let's assume that he showed a discriminatory act and action may describe efface your case let's assume that your reason for it was we didn't fire him because of a disability we fired him because he had an accident and then i have to figure out whether or not she's presented any evidence of that was a pretextual reason and that's how i would do it if i got to that third step let me ask the different question do you agree that he wasn't fired because of the melt down blow up whatever i don't agree with that i don't think that that was a reason ok it was always it's only it's only the accident we should be focusing on it's the failure to report right specifically and you do you agree that there's a question of fact about whether the people who fired him knew that he had leukemia i actually don't agree with that you're ok i thought you had a moment ago so tell me oh no i was accepting that for purposes of your question ok so tell me why that's not enough evidence from understand but i'm asking a very different question i guess i'm asking you poorly is there a question of fact in this record about whether or not the two people who made the decision to fire mr davis knew that he had light of the facts that we have all been asking about a reasonable juror could infer that at least one of these decision makers had knowledge of the issue well first of all the actual decision maker was mr humor who is in los angeles and testif missile with rogue withrow recommended terminations right through and as the district court receded she only the argument as i understand it and it's not completely clear to me but the argument from plaintiff's coun is that as i understand it is that there was a twenty some page or maybe forty some page fax that included one document that had the word believe act on it which is apparently the medication that mr davis was was the facts shows that she received that after she recommended term yes right so so now we get back to the question judge smith was asking which is that she was previously in a different position frankly think there's anything in this record about what prior positions she held in fact i don't think she had been employed at the company very low key but she moved she's in a position that in effect is it she inherited up there you know she inherited her  her predecessors knowledge fight the file and and so this goes back to what i think is the strongest evidence they've got it's circumstantial to be sure but opposing counsel you know knowledge that and that's why we're just trying to get your response to it and that would be the circumstantial evidence the inference that she knew with her own new because she's in this position where these i'm going to say medical notes and permission slips doctor's notes and whatnot had been forwarded in the past and i think her best response in addition to saying i didn't know and as a matter of fact with races that clearly is that she didn't sort of you know retrospectively look through that file certainly not before she made the decision but what judge perhaps not all three of us have asked is what is your response to that the argument that withrow could have known that a reasonable juror could determine that she's she's got this information and you know the slip doesn't just have the name of the medicine it says oncology him a tautology ok you know so that's it which you know again she received after she recommended the termination if you received the file after the termination the question is can we reasonably infer given her position in the company and that you did she might have seen this in some earlier por pirie the worry i have you still a chance or is that if she knows if you're not even arguing that she would have no known he had a cancer problem because she came to the position and it was in the file that there was such a problem then you sure you're saying even if that were it we should she still has no responsibility why not when this breakdown happens on situation that had confronted the person why isn't that enough well i don't think your honor there's anything about the breakdown that suggests that it's related to the kimi or that any reasonable person would perceive this breakdown as having something to do with some actual disability as opposed to somebody who felt he was about to get disciplined and possibly fired i very stressful forgive me for interrupting a jurors could certainly i think there's evidence of insubordination in this file and of the and the and the and the meltdown on that morning i don't see the word cancer anywhere that morning for sure but this is the i think the closest they come so i have the same question to smith as i just want to hear your response one thing i would say to respond to your earlier question  ahead i don't believe that's correct mr johnson who is the personnel person on site and clackamas is the keeper of that file yes she she requested it following the recommendation for terminations right you requested it but she she didn't inherit that file it was a file this is a load of really detailed timelines and it's mine is just consistent with what you're telling me so but i really want you to have an opportunity to answer this question unless you don't want to take it i do want to answer the question i'm just not sure what the question is your hon was employed that i am aware of couldn't but that's what i can't find a record of that that these these doctor slips and permission slips that i'm referring to using a loose and imprecise term when her her well went to the anywhere in the company while she had that position i can't find that yes in your honor that's because under the americans with disabilities act there's pretty strict rules about separating medical information from personal information wouldn't be typical for a h r generalist to get medical information unless there was some specific business reason for her to know that and i just asked when i think that's one follow up question what is your response to there's this odd allegation that never gets really kind of teed up very well about cam's statement being typed up and part of it he seems to disavow what is what is your uro that said that yes your honor that that came up in opposition to the summary judgment in a declaration that was filed for the first time so i know about that about what know he doesn't say he didn't i have looked in the record for explanation of it and maybe the answer is i can't find it because it's not there i think it's right there can i ask is another question about something that's not in the record judge smith i know we've taken him over  but there's no evidence in the record of a medical leave request and there's no evidence to show him that she approved it is his testimony on that point enough to create a shoe a fact about whether she knew what does he say about well why he thinks she approved i'm not even familiar i don't recall him testifying there's nothing in this record about a medical leave request and there's no approval in the record the question is what was his testimony on that point and does that create a question in his testimony that comes closest to that in my view is he testified that this whole incident and he testified to this very clearly in deposition this whole incident with him failing to report this this damage had nothing to do with his disability and in fact his disability was in remission as a result is no but that's not that's not the question i asked the question i asked is what did he say about this ok i think you're finished thank you if you'd like a minute i'll give you a minute i think we took it over but that the play of can prevail on one is the actual knowledge and inferred knowledge for the disability of cancer in the perceived disability as well as the second track which we haven't talked about which i'm not going to talk about now because it's brief to the cat's paw and subordinate bias the second thing that i think is important is knowledge an inference of knowledge plus the timing of the adverse action plus the wealth of pretexts evidence that is the compared or evidence the failure to treat him the same way as everyone else the issue of ben mendell who is somebody who was not fired he's on the record it two five five to two five nine he caused an accident he caused property damage to a customer he failed to report he covered it up he was terminated and the e t i be reversed that did not happen for johnny davis with with a much better record for who reversed the each here because the appeal board who that johnnie davis did not cause damage he didn't have an accident unlike all the other comparatives he had no and the the two that were fired reducer and garcia have very different records in the case of the me but i asked you this before so let me make sure you because your colleague says you're wrong is there any evidence in this record that somebody who had an accident and didn't report it was not fired he didn't have an accident so no it's not the question i asked you the question is whether there's any evidence in this record that anybody in the company who had an accident and didn't report it was not fired no but then mandela was brought back and he was i can stay that's the it's so the answer is no no ok thank you i think you've taken your thank you appreciate your arguments thank you very much case for one five three five eight six four davis versus conway is submitted