we failed to preserve the claim of failure to provide reasonable accommodation because the truth even a straight charge before the a c was inadequate and finally he determined that even if the charge were adequate to show a claim of denial reasonable accommodation that the plaintiff never asked for reasonable accommodation just very quickly as background my client was employed by hospitals it is a patient transport and he took patients back and forth a room the hospital he was employed successfully for six years he suffered from attention deficit disorder depression in obsessive compulsive disorder those disorders were known to the defendant employer in fact he had received intermittent f m l a leave to accommodate those disabilities prior to the time that he was discharged his last performance review was done in april two thousand and thirteen literally one year before he was five fired the performance review was outstanding and we set forth actually in our brief in order for the court to understand how he was regarded as an employee after that time his supervisor testified that upon their arrival he began to experience adverse treatment there were complaints about his forgetfulness there were complaints that he was doing an eating of each prompted to do things all things that he had done throughout the course of his work before but had been accommodated by his supervisor laura embers his new supervisor to begin making fun of his disability his one supervisor when he tried to talk to him about the fact that he was having some difficulties because of this mental issues said i'll measure eighty eighty d for my d d and all when and i don't care about it and i don't want to talk to you about it in so he was able to get those sorts of things through counsel i want to ask you about the recent all combination crime right off the bat because some of the stuff you're getting at is about as is tied to discrimination claim but some of it seems to be about the reasonable accommodation claim as well  are contained to the charge he said that he could perform his job with reasonable accommodation that was in the body of the charge and also point out that he claimed about you complain about disability discrimination forty two u in two thousand and one one to be five defines disability discrimination including a failure to reasonably accommodate so by saying that he discovered from disability discrimination he was really saying that new number of ways that are included in the statute including the fact that the failure to accommodate is in fact itself an act of disability fairly well even assuming that's true one of the problems of having with the record in the case is it seems that at least below there is that there's a different theory and the theory below is that the intake questionnaire provided the notice not the charge could you address that event of a claim ok i'm not making that claim or even though it was in the intake questionnaire the question is what from the charge would the e e o c reasonably investigate the basis of that charge and when somebody says it is charge i could have done this job had i been given reasonable accommodation i think that i clear that a reasonable investigation on the part of the e e o c would have included investigation of the reasonable accommodation but here's here's the problem then having so when because the theory was different it was about the intake questionnaire b l there are a couple of points one in the district court brief where it says in the brief the charge of discrimination does not include any allegation about meeting or requesting accommodation and then if you go to the hearing on the summary judged motion a similar statement was made so it seems that there's a concession below that the charge didn't contain enough information about the reasonable combination claim so i'm wondering if the argument you're making now is waived would include by definition a fairly reasonable accommodation he checked the box called other and unlike the cases cited by the police in this case there was no check of a second box you understand there is no box to check for reasonable accommodation there's you can't there's just not a box that says that in all of the cases that they cite are cases where sex discrimination has been charged and the then the plight of a lawyer tries to bring up a case of racial discrimination i mean these are so these concepts are so in a strictly intertwined that i don't think we were good first of all and secondly i think that this court can consider the issue and decided on his mirrors so should we ignore those statements that were made on my misconstruing the statements i think you're misconstruing the same as to extend that was the only or it would be ok all right i'd like to go back to the pretext argument if i might the first that we talk about circumstances and discharge as i'm sure you're aware from the having reviewed the papers below the appendix there was a celebrity there was it emitted into the hospital at st luke's in april of two thousand and fourteen given my age i know nothing about the talents of this particular celebrity or or even what he or she does but i understand it was widely publicized in the news including the kansas city newspaper the local news the day before this alleged incident involving mr lindeman occurred so this was hardly hip or protected confidential information routinely in the news people say so and so was shot and was taken to st margaret's hospital best hospital the fact that the person is a patient in a hospital as a result of some told to stop at least twice don't don't say anything and continue to to tell other folks so even if it wasn't confidential is there anyone else that you were able to identify to not only took because your allegation is that other people tall about the celebrity or said things about the celebrity but i didn't see anything in the record about anyone else who had said things about the celebrity was told up and then continued to do it am i wrong about that you're right about that ok but as i say m you mentioned two other people were not disciplined mr lippman testified that he was told why it is a lame brained idea as in the emergency room that this particular individual was in the hospital he told that to the people that were investigating in addition in the notes written up in the investigation the human resources representative wrote down an individual a patty ambrose similar is situated to mr also came up and blurted out their name in front of the people who were doing the investigation and neither of them were disciplined now the district court said well they were fired but that's not the point they were even disciplined we know from the disciplinary records that those two instances when people blurted out the name under the facts construed most favorably to the plaintiff were not even discharged not reprimanded not given or a warning nothing those well is an individual particularly a person mental disorders entire into it it listen assistance in defending himself against the discharge of a job that he's had for seven years the source of his dignity can't he go to his roommate in his best friend and say help me here is that really a violation of policy i just don't think that you have made the disclosures to them as part of after he was terminated no while he was writing his letter explaining why he shouldn't be terminated they assisted him in writing a letter back to human resources explaining what he did and why he did it it was written the reform he was terminated and while he was on suspension so you're saying he was suspended before he made the disclosures outside the hospital that's right and then he said on doing one disclosing it within the hospital yes and then he enlisted hit the assistance of his roommate and this the needs help he's not he's not like most people he's incapable of defending himself and so he needed the assistance of these people who he trusted in order to  make that point just to finish up on the pretext issue because i see him really running out of time here it's important to note that there was testimony that his supervisor patrick is bill had him a couple of other employees on a list of individuals to get rid of now did he say i want to get rid of him because of his disability or age no but it shows that he was looking at him to get rid of him that's an important factor that a fact finder jury to consider in deciding whether this was a truthful reason or just an effort to fulfill a wish on his part to get rid of mr lind continued those were part of a plot to get rid of him they didn't start right here up till the very end i want to talk about the the white were they claimed he learned that from the white borders the testimony from i first want to point out there are five key facts in this case first mr lindemann admitted to the misconduct for which he was disciplined to mr lindemann never connected his misconduct with his alleged disability three confidential waiver argument statements policies apply to its employees not to its page patient the b m p patient it was her prerogative to go out and publicize information she could do so but as an employee terminations it did then and it still does today it has not wavered from that belief first and addressing mr wyndham and wrongful discharge claim his by his step in breach is occurring and outside of st luke establish he violated st luke's privacy policies this court has held time and time again the violating company policies as a legitimate nondiscriminatory reason for acting the burden is that on mr linden and to establish pretext which he is here and stating the v i p patient's name certainly different from what mr linden meant it or he made seven breaches five of those were internally and two extra nearly six of those seven breaches occurred after told him knock it off stop talking about the patient yet he ignored it then mr prodi told him knock it off stop talking about it and yet he continued to do so right over the scope of the breach was different mr l not only said the name of the patient and the fact of hospitalization but he also shared his understanding of the diagnosis of that picture which brought into the scope of that breach each one of those facts establishes that his conduct escalated engaged in one physical fight with another this court found that the employees actions toward one another were objective lee different conduct because each had escalated at different points in the conduct during that same fight that's exactly what happened here beyond the same offense problem we don't even know if miss ambrose or miss diaz are outside of the protected status for all we know they could have a condition rendering them disabled and we don't know their ages fall either mr  also not presented any of the other factors that this court considers in the regular list similarly analysis test namely he hasn't established that they have the same supervisors him but they have similar work histories or their disciplinary and i combination claim has been found to be and to separate and discreet act of discrimination requiring its own administrative exhaustion this court helps so much that accommodation is a separate form of discrimination under the rehab back and it's charge does not include allegations regarding a request for any accommodation that dooms its claim itself and finally turning to the accommodation claim itself mr liniment made an untimely quest requests for a combination and what he now speaks is to have a discipline rescinded that is unreasonable as a matter of law first and foremost  knowledge of the disability is not enough there's a predicate requirement triggering the interactive process of an employee's request for accommodation what mr liniment stick seeks here is to have his discipline removed by claiming and but having a disability does not excuse past misconduct the e e o c guidance says just as much state in eighty eight is not protecting employees from a consequences of violating conduct requirement even where the conduct is caused by the disability it goes on to further state than accommodation must be requested prospect of lee by stating the timing of a request for reasonable accommodation is important because an employer does not have to respond to discipline misconduct learns of an impending adverse employment action and then informs the employer of disability that as this post caused a prior misconduct and pressed an accommodation and they could act that is exactly what we have here with mr  and finally just briefly touch on mr lynn amend is discrimination claim we don't think that's properly before the court because he didn't preserve it for purposes of appeal he still had a duty of a stablish in pretax and that was not briefed in his properly concluded that the plan to fail to offer any evidence that that the confidentiality violation was any result was eight and there's similarly been no evidence under the similarly situated analysis as to any other employees age the bottom line is the judge who got it right in granting motion for summary judgment on all claims because there is no trial issue we ask that you affirm the grain of summary judgment on each of mr liniments claims thank you very the defendant conceded that by you could be mr izrael but he was having trouble doing the job and it was because of his disability the case of taylor versus phoenixville the third circuit loser luis gurdon versus ask for their fist circuit   ballard which is cited in our brief which recognizes the same principle noting in that case that the plaintiff was a sophisticated i r s agent and knew how to ask for accommodation but the case would be difficult with a person with disabilities thank you very much yours very well thank you both for your arguments the case is submitted in the court file an opinion in due course you may be excuse