and that involves hearings testimony about information she obtained from rd parties to support her terminations recommendation and district court claim that well parents really couldn't remember details about what she was sad or when she was told these measuring her performance that isn't true missourians it was only you in response on one hundred and seventy she says it was my recommendation but i did it in conjunction with my boss who is roger  lisa greene and after talking to other people in the company we know roger greene roger didn't have any input filters job performance he st came to us in september of two thousand and fourteen and he testified unequivocally i was just relying on what harry's told me i didn't have any information about seldon's job performance and when she said green testified similarly i relied entirely on mysterians so i asked her in a deposition well who else did you talk to in the company she says i talked to underwriting to get to get their opinion about whether she was grasping the concepts i talked to rick riggs and francis friend who trained her during the performance improvement plan time three different times in the transcript she sent my mom sat stelter did not know large group one time on one hundred and seventy three she says mom said she clearly did not understand large group and then move on to rick briggs i say well one of  for you get to deeper into the factual weeds here all this strikes me as not evidence of pretext in other words that her she she lied about her reasons for recommending terminations that's what pretext is it strikes me as evidence that maybe she made an error of judgment in determining that your client it wasn't performing well or maybe she was wrong about that lot that she lied about well here's why it's significant in my opinion judge i asked in her deposition well give me some examples where you say she was deficient in her job performance and large group she didn't have it so when she have to do she had to make up will i as far as the reasons for termination what's wrong with relying on other people in the organization for an assessment about whether she was qualified absolutely nothing but when you flat out lie about talking to those people because they all refuted her testimony completely it that's the problem is now she's making up reasons to try to cover up the fact she didn't have any basis to say she was deficient in larger work and let's be honest if the shoe was on the other foot if these four people in the company had actually testified that yes i did tell her she didn't understand large group work or she didn't understand the proposals or she them their stem cells logic system where she didn't know or her job duties we lose that case we lose that case every time and now the shoe's on the other foot it's just the opposite so certainly that tells me we should at least be able to survive summary judgment on that issue so i don't believe it is evidence of pretax because it goes to the very reason actually the number one reason actually get that one judge accommodation is not an issue in this case because both parties can see she got all the accommodation she needed and that it was no hardship to accommodate mr l to her and soul in fact we didn't even raise  job duties didn't change she still had to deal with individual work products and she still had to deal with medicare and what happens is she's at the office so she gets calls from all these agents asking questions about individual product medicare all of these things she still had to handle all those questions there's no question that when biharis job duties focused more on large group when as far as mary lou stelter she still hadn't deal with all those things job they didn't say anything like that in fact green said he had no complaints about stealth or job performance and never sent she needed training friend he never even talked to her about filter and in fact he didn't even know who she was very helpful and what i would say is these are deliberate false ones i mean major issue in the case that issue between her and large group work performance and in my opinion that's pretax that precludes a summary judgment there's here's the problem there isn't one review not one that says she had a large group performance deficiencies before the reform and disability became an issue and fact they don't say anything like that and then the two thousand and thirteen review makes five separate comments about what a great job she's doing and larger work it was the review right before the june fourteen review and so there's nothing that indicates that at all it's not consistent with the facts and what happened is there was a change of morphine of the evidence changing it from at the end of the reviews as you probably know most reviews have future learning objectives feature learning opportunities and these were identified as she can have some future learning opportunities that w p s changes  learning opportunities are present performance deficiencies and is not accurate and that's what the district where the line and coming up with its decision in the thirteen review there's five comments and we're going to talk about one sense felt it was under pressure stelter was under pressure to turn around a number of large group polls in a short time and did a good job in the deadlines in communicating with internal staff and all the pieces that needed to be included this was signed in august and thirteen this is large for work think about that april of thirteen in june of fourteen that's fourteen months we don't have don't we don't have a meeting we don't have a letter we don't have a word you know we don't have a of suspension or terminations nothing but radio silence for fourteen months the only thing that happened in that fourteen months is in august she got this review thing and you do great work on a large group the fact is there was no large group work deficienc in june of twenty but they were in absences jentzsch years what was happening with the reviews talked about is when she was taking the appointments herring's wanted her to take any appointments over her lunch hour what stelter was doing was coming in either early or staying late or working over her was when we both now and i got to answer this question on that the reviews never one time not one review mentions an issue with notice of absence so i'll save the minute i have left for remodel thank good morning hours a minute please the court in order to succeed on the two discrimination claims that the plaintiff is still pursuing at this point she need to prove three holes one that she was disabled within the meaning of the eighty two that she was qualified do the job that are out employers asking her do and three that she was terminated were let go because of that disability she couldn't prove or burden on any of those three elements let alone all three she couldn't prove she was disabled because by the time she was let go in december two thousand and thirteen for own doctor had released or nearly eight months earlier to return to work with no restrictions so after april two thousand and fourteen when she comes i'm a doctor's note that says she's st care burden on the nd element child it before you leave that topic as is it a prerequisite to a finding of disability that a doctor has issued restrictions it's not a prerequisite but this is not the usual case where usually it's the employer's doctor coming in and saying that individuals are not disabled here her own doctor came in and said now she's fine to go back to work and but she right that's just a statement about whether she needs restrictions or not it's not an opinion  about disability under the statute well i see two things in response to that one mr didn't think she was disabled either because what did she do when she got that note from a doctor in two thousand and fourteen she could have said the instead she got a note from a doctor saying you're fine she looked at she read the note and then she came in to w p s and said i'm trying to go secondly the case the only case that they cite on this issue is the powers decision and the powers decision is actually an easier case of this one or more difficult case this point because empowers the plaintiff was a truck driver and part of his job was driving a truck and the other part involved unloading and loading at the dock and you could do that for the injury under the age because even though you can't do all of the same functions that you're performing for you still do the core functions which is driving the truck and this case is easier in that one because there's no dispute that missed out there was able to perform her desk job the injury and after the injury so they have no case law that supports the theory that they're throwing out there in fact the only case they cited supports  was very clear i didn't even talk to these folks about her terminations she said i've been working with these people or had interactions of them over the years and i have these general recollections and recollection was correct in some of those instance and in particular  seven if you read those pages i learned you think i can redeem yeah well he's what he said was i don't remember that specific conversation that ms harris is talking about if you read all of those pages he said part of my job because he was the head of underwriting and i think that was his actual title but he basically ran the underwriting apartment and he said because of that i had frequent interactions with miss stelter and the others in her position on you know throughout the other offices because part of what mr alter his job was to interact with the customers of the prospective customers gather their application send it to underwriting but her job was to make sure everything was in order so underwriting could you know crunch their numbers figure with rate was going to be and he said so i interacted with her and all the other individuals e mail certainly on a daily basis phone calls or whatever at least once every two weeks and he was asked do you remember mr alter because she was just one of many and he said yes i do remember mr and this is four years later and he was asked why do you remember and his answer was quote constant coaching he was asked to elaborate and he said processes and procedures she couldn't get him down i had to keep reminding her over and over she would send us a pack of the stuff and we'd say  us x y and z what we need is a b c and one of the examples he gave was particularly telling she said after he said one of the jobs it was a large group of children they had to send in for fill out a medical question here this kind of detail you know how many employees do you have what's spend what's the nature of things that underwriters want to know about and mr alters job was to look over the questionnaire and make sure it was filled out completely accurately and then sent to underwriting and he said we would have to send him back to work and i remember this specifically with her because i kept having to repeat the same problems over heard the same exploit children or both me and my staff because misstep and bring it up to me and exhibit one his deposition is a perfect example of that because it comes up in the context of october two thousand fourteen so well past the performance hey you got to step up your game is stelter i told her two thousand and fourteen she's asking him questions that were very basic that he felt she should have been able to answer any testified about exhibit one and he said this is one example i can remember eight other specific e mail examples but i certainly gave information as herrings or mishearing supervisor because i wouldn't show up on interview because i wasn't a supervisor but i was dealing with these people on a weekly basis if they were gumming up the competitors and one of the things she said was there's an e mail in the district court of law to the e mail chain it's opinions that i can't really figure out why she's being asked to send out a rate in this one instance but in this other instance she's being  explained there's two reasons for that one i told her specifically you're not allowed to send out rates unless you run by me so i can make sure they look right and she didn't in this instance but to more importantly if she knew what she was doing of large group and understood our rates she would never sent that quote out because it one is a problem for his hearings and a legitimate problem she also didn't even understand which agents were selling large there's the discussion about her going there at the end of the performance plan nothing's working so mishearing says you know what we're in  sales role here why don't you go visit some agents who all saw maybe some of her actions will help her sales here and so she drives two hours to wosm and she makes three visits to the visits or to agents that don't even sell a large group and that's important because and this address another issue that council raised there was a fundamental shift and it wasn't just an informal ship it was a formal shift as of may two thousand and fourteen this herring's head in april two thousand and fourteen is in theory mishearing s for products small group individuals large group and so funded as of may firmly she lost all her small group all or individuals they said were handing it to a totally separate age you're not touching that as hers which meant to stop there shouldn't be touching  and so months later she goes and takes visits to people that we're not even supposed to be working with anymore that shows that she doesn't know what she's doing these are fundamental aspects of her job she just did not understand the absence issues that was discussed ad nauseum going back to your hon same witness said yeah that calendar was out there until two hundred and forty two thousand and fourteen and then it went away but she said i don't even remember mary lou i'm sorry mr alter ever putting her appointments on there and she said there was another calendar by the door kind of a sign in sign up sheet where you were supposed to also put your point it's the same witness said mr alter she was taking a long weekend she put that on there but she never put her medical appointments on there so i don't think it was an instance where she was actually there's no evidence that she ever put a medical appointment on that electronic calendar but even if she did if that's something that she really did why wasn't that her response in every one of the reviews why would she say ms hearings what are you talking about i put these electronic notices on your calendar all the time she never said that because she did but even if she would of it wouldn't address the fact that she wasn't providing sufficient notice it does no good to put something on a calendar twenty minutes before you leave because miss herring's is saying this is a small office and you twenty four hour notice and provide coverage for and it also didn't wouldn't address the fact that she scheduled all of her appointments for you know three o'clock in the afternoon so she's got to leave early and isn't come back as opposed to taking over lunch and then just miss a little time instead of basically an afternoon but there's no evidence that she ever put those appointments on the c that council so that again there was no change i talked a minute ago about the formal changed that's in the record there was a formal change in her her large group and self and it was almost herring's was doing so if mr didn't understand that her job was supposed to change that just proves w p s his point there was a formal edict from w p s that she's not that miss heron's not be touching anything but large group and so funded after that point but he also undisputed evidence is that miss herring's said as an informal matter in i believe the other arguments were addressed in our briefing at the court has no further questions present at the court from now right thank and still selling ancillary products regardless i mean p s concedes down to his job duties didn't change she still had to answer even questions on individual products and medicare products now i want to circle back to this october e mail sign