sufficient evidence to create a genuine issue of material fact as a pretext now if you read this record cold you may come away with the understanding that mr science has was a consistently unsafe worker that is the picture c p s energy has painted in this litigation in a race or jury could draw that inference but on this record in reviewing the totality of the record a reason or jury could conclude that c p s or g did not truly believe mr sanchez was an unsafe worker or that any of the events were deemed to be serious safety violations at the time that they occurred since c p s here gee did not discipline mr sanchez save for one minor of it it did not immediately terminate mr such as employment it did not properly document or or investigate these events as being serious safety issues and more importantly c p s your g in its decision makers cannot even present a coherent story as to why mr sanchez was was fired and who made that decision and that's absolutely inappropriate employer all to be a state every single time consistently the reasons behind its actions and the individuals who made that decision now there's one fact in bed in this case and it's key to resolution s d or disability played no role in that safety did in its decision even though there is evidence on the record that p t s d was discussed at the one in only terminations nonetheless what's clear is this on this case on job as the juryman cable splicer in the underground department with or without a reason or combination in this case mr sanchez was being recently accommodated by way of his medical leave in fact the medical he was working in his workplace on the day he was terminated and what evidence supports that it's your art so one on one hand he had testified that he was ready to work he was ready to return to work in he felt as if his daughters were going to release him soon but i would direct this court to what i believe is if we're looking at one piece of evidence in which we've we've won on our in our brief pointing out the error committed by the just recording reviewing the evidence in isolation but i think that's an that's an issue for on one hence an issue for a jury to decide it's a factual issue and there's a fact issue as to whether or not one year or a few months or five years and your example is reasonable but  sanchez was released to return to work and there was only one restriction placed on him and that was heights and the doctor also reference scaffolding this is our record page eight hundred say report if there were accusing him which he worked at heights but that was a marginal job what what what what is telling in this on this record is that there is not a policy a description or a  document from c p s energy that states heights was an essential function his primary job the core of his job was working in in small manholes under the roadways of san antonio he was spiking tables cutting  working with hot molten lead at times that was his job yes from time to time he did work in a bucket if you will but that was an occasion to those that his job was not going to going to change if he couldn't perform that function and what's telling to me your honor is that for the st time on the pill c p s energy points to a couple of different documents to support its position that heights was an essential function of his job but those documents that's it's not evidence that they pointed to e mails and and a couple of documents that were never actually implemented heights was not an essential function is the documents are properly in the record s energy that even remotely evidences heights as an essential function of his of his job is really focused on well they didn't have documentation and they work clear well that matters if there are articulated  case of discriminatory treatment bit you know it's to always be smart for an employer to have that to defend against it but it doesn't mean that well they're liable if they don't have the documents you have to show all the elements that you have to show st you you get you enter stand that yes your honor oh how is the fact that they took a long time to terminate him a lon enough for pretend you know if he had done a whistleblower complaint the day before and then that you know you could think of a number of scenarios where the timing lapse could be evidence of pretext but just on its own i don't believe we have any case on this circuit the timing lapse alone without some event happening in the timeframe that was the true pretextual reason so can you help us with that yes your honor and one of the case stated that evidence considered in isolation may be insufficient to lead to pretax but that's not how the courts are to review the pretext evidence the pretext evidence should be reviewed in totality i'll submit to th perhaps a failure to follow their corrective action policy maybe a reasonable jury could find that that's not enough to could create a pretext a pretext issue but it's not just the failure to follow it's corrective action policy that they didn't they they were aware mr sanchez has p t s d diagnosis but the wreck that the evidence in this record suggests that their credibility and quite frankly the credibility of the majority of the c p s energy witnesses is at issue there is a  you please the court my name is christine rinehart and i represent c p s energy the apple e in this matter we believe the district court issued a well thought out forty three dollars page opinion analyzing the many arguments made by mr sanchez as to why he believed the decision c p s energy made based on four different incidents that occurred in less than a year in which mr sanchez had violated known safety rules was a proper reason to terminate him one to terminate him from employment and better yet it was not a discriminatory one i do believe that this case can be decide decided on one element and that's the qualification element that is part of the prima fascia burden that mr saunders has errors in bringing his eighty eight dollars disability discrimination case and it is a critical burden that he must prove argument that you need to accommodate him by your leave your honor i believe that that's the law on the this circuit has been is he qualified as at the time of his discharge which is march th two thousand and sixteen there is a law that says also is that with or without accommodation however when we turned to leave the question is is there a definite legal if that would be provided in this case the issue with there's a couple issues with mr sanchez saying i should have been given leave one he never asked for it and he admits that in the record he also never asked for any job accommodations he that he was definitely coming back on day six seem like they said maybe march th but i didn't ever see were someone said before he was fired you will definitely return on x date that's correct there's no evidence in the record that he was going to return in not be able to return to work through march and in may that was in january that was said there's this issue of what the company knew about p t s d there's no indication that that medical  record in the way it works at c p s energy the medical reports all went to essentially a medical department and those reports weren't shared generally with everyone and so as a result the injuries that he did have did include physical injuries and then he also was diagnosed with p t s d as a result of the th incident from which he was injured and as a result he was required to have behavioral medical medicine clearance improving it proving that was not the same as a doctor saying you can come back to work and in fact that particular doctor who wrote the report said specifically and i quote on one thousand eight hundred and five as for his abilities to return to work is recommended that he return to full time employment but in a job that is not related to electrical work the anxiety he experiences when working on electrical jobs interferes with his ability to concentrate on the job making it what mr sanchez doesn't mention is that there is another doctor's report in the rector of record dr hernandez who in june at the end of june of two thousand and sixteen which would have been beyond any leave policy even if it was allowed for c p s energy and wasn't discretionary at that point in time dr hernandez specifically said mr sanchez can't work at height can't work at scaffolding and he said no work with electricity reverse petroleum helicopters and in that case the pilot in that case was not able to return to work as the date of discharge and there was no evidence that the pilot would be able to return to doing what's crucial to that  flying and in that case the th circuit held that the plaintiff in that in that in that case was not qualified for employment and thus could not proceed with a discrimination claim that they had a now to address one of the arguments that mr ray is also made with regard to mr sanchez in terms of the requirement of heights that he couldn't work on heights or scaffolding and that was an essential function of the job i think what's most crucial about that is that argument was not raised to the court below and so it cannot be raised now on appeal in other words mr sanchez did not challenge that working at heights and scaffold team was not to the essential function of his job he did not raise that argument in any way there's also no testimony in the record that that wasn't in fact the record including even evidence from mr sanchez himself on seven hundred and seventy six he's asked in september after this last four safety incident what do you think you can't do with regard to your job no ladder and no scaffolding one of the safety and and fault for which he was counseled about was he was up in a bucket riser obviously at height and he was booming down and hit a streetlight wire that caused a flash or an arc his own accounts or steps indicate that sanchez told her that he felt good because he was that he was able to get up in the race bucket and it was doing well so even if you look at the record evidence itself it supports that those were essential job function well which are published as circuit decisions as well and also with regard to a few other cases that the mr such as cites from the th circuit i do think there's a critical distinction between those cases and this case here with m in those cases the th circuit found a fact issue on qualification because there was undisputed evidence in the record that the plaintiffs who had returned to work on ice pacific date and before that there wasn't any material issue general there was any material issue of fact presented by mr sanchez but we do believe that this case can be decided on the qualification element itself so from that background court that to even entertain discussing in allies in c p s your views evidence as to the heights essential function that would record this require this court to make factual inferences in a way the evidence and those are functions of a in the conflicting evidence is the lack there of documents or the lack there of a job description the lack of a policy that this court has decided cases in the past where they look for the court looks to the employers of judgment as to what the essential functions of the job are but here are all we have or in this record is argument in the briefs there's nothing actually from c p s your view that points to heights being underground it's a marginal job to do you have any evidence that does he can have testimony or something that would say it was not the subpart of my job to be up in the bucket no your honor there is no testimony to th  those cases involve situations where the plaintiff went on record such as in the rica's and put in a s s d i applications that she was totally disabled she was unable to perform the job we don't have that here also in the read case the employer had required a valid medical certificate and for her to return we don't have that here either even the c p s or she could have done that it's it's contained in there leave policy but they never requested