question completed forty four years of employment with united insurance company without a single reprimand without a single deficient job performance nothing in the defendant's own words and through their reviews over a fornia and the last ten years or so was a manager at an office here in los angeles county at that point in time the regional manager in this area towards two thousand and one started writing my client who at the time was over ten years and nexis of the next oldest employee in the sales group of about one hundred twelve employees and pressuring him to retire with direct they just comments that this court under the cordova perform his job adequately without question was replaced by someone approximately twenty six his junior a fifty one year old the forty nine year old individual the time of his terminations and insured we've presented another reason that they were going to fire him for anyway over the last six months that they had already determined they were going to fire him raising efforts in itself under the resources sanderson plan a case whether or not we had a situation where the employer was telling the truth about the reasons motivated them ultimately to fire my clients or your clients cardiologists say my client's cardiologist submitted i believe about you were three reports that were in the record and about every two months or so he was put on temporary total disability beginning in august of two thousand and two that he was physically incapable of working after that i'm a temporary basis correct yes not not not totally in fact my client one around applying for jobs appeared in the period of time in this period of time i believe in two thousand and three so no not permanently disabled at any point in time and fully functional and  mean submitted any medical education there was no there was never any minister to forget saying you can go back to work it's time to go back to work the records show though that he's condition was getting better and told mr i coul in this conversations so how do we know anything will to come back to work declaration indicating that mr reich how would have been able to return to work had they not put him off and sentiments of the site yesterday that he was in at the point in time as of that they fired him on january thirty first two thousand and three th it's back into this other issue about whether some of the his within his testimony or declaration one of those that with struck because of the contradictory right was directly kind of first we got the guy thing he still disabled there now we have a summary judgment motion any kind of there is as well that's not really exactly true so the judge says look you can't really parachute in after the fact and rescue your patient and that would be understandable accept when you look at the timeline  here what set mr i tells physical condition off was a psychiatric occurrence where he saw something on the job that of second grade only ended up in huntington hospital within for the next two and a half days over the next week some two months or so his condition got better got out of the hospital was on medication but he's always been on medication for the hypertension i believe in the heart condition this was nothing brand new with me a clue as to what month or year we're talking about here i was talking about the summer of two thousand and two when you originally goes out and the original reports when he's going to see the doctor send is that you should be able to return to work on october thirty first two thousand and two that's approximately two and a half months after  time he's continuously in contact with human resources department my client is some of the know how conditions are going and he tells the mine to speed i'm going to be back to work around the holidays or shortly after the holidays what do i need to do here hope to go back to work he said he's been fired he's worked for this job for forty six and a half years at that point in time i mean i completely am sympathetic but it's the difficulty is sorting out the in the testimony in the declaration well i don't think it's the serve in congress or do you think i mean maybe i'm missing something and you can help me out normally of course if there were inconsistencies between what you said what the employer said there meant there would be no summary judgment here the difficulty we have to order and scramble is the inconsistency in your own client's statements and the doctors h that position testimony over three days or three different sessions and is the question as many as we set forth in our previous they're not inconsistent with the one point the only point that actually there's not even alleging consistency between his medical condition alleged all they alleged is an inconsistency with the bus his communications with united insurance post leaving after august of two thousand and two so that's not really germane to what we're talking about here very specifically in our grief over about three pages about how he talks about how he spoke with his manager joel smith on the phone how he saw him at a funeral after his after he went out on leave there is no inconsistency of the termination and as a result of being put off for the three months i believe it was or actually about eleven weeks three terminations by united insurance or by his employer of the previous many many years the risk what triggered that condition to get worse and remain permanent for a period of time through the summer of two thousand and three and actually there after until january two thousand and four was his germination it was the psychiatric effects from his terminations was the door that united insurance was closing before january of two thousand and three before they actually terminated him this is not a situation where my client was even once asked give us any type of medical certificate for documentation give us some type of contact to a doctor's office or anything to give us some information about your condition when you'll be ready to return he's never once asked for any of that information and in fact provide any accommodation for his disability he didn't return to work after the expiration of six months leave and is in his employment automatically terminated or something is that wrong no that's what that's right and that's fair and he did exactly what the policy corporate office or home office rather home of this is the person who's making a just konitz when you do that that was that was continuously from october of two thousand here it says in february two thousand and three he called all human resources asked that he was told well after twenty six you weeks you don't come back i mean it automatically terminates and then he started drawing a long term disability benefit got the statement said if you need accommodation put it in writing preferably to your supervisor human resources if well never requested any accommodation for disability prior to the time it was like oh is that right it in writing  request a reasonable combination for extended leave something that requires in other words he's absent was he told that in writing and did he sign the document note the point is this yes of course of course but he's on leave he leaves he doesn't need any  combination that he doesn't know they're going to just fire him without even sending him a letter at that six month time period number one number two according to the record he's talking to human resources office telling them i'm going coming back to work and they're telling them just what i just read  it's up to your home office if they have the position open for an agent that's what they're telling him now once you're putting him off they're not listening they're not trying to engage him in any attempt to reasonably common it they know yes this ability they know they're going to fire him and what do they do nothing do they even tell him at that point in time well you know you have to be that by the certain date is that they were drawing the six month time period you know this would be a wholly different case if any of that came up with my client had when we got to the summary judgment stage there was a it and expressed integrated agreement that my client was given after forty three years of employment that you signed to me gatos all those those claims are dismissed but there is no no law directly on mckinney which supposedly took place in october two thousand and two she was in human resources in chicago and that shouldn't be confused with other testimony about a conversation with mr olor in human resources who was also in chicago which took place in i guess february two thousand and three this conversation that counsels relying on with surely mckinney if he says his client testify took place in october two thousand and two that was stricken sham because the import of the conversation is that he's testifying about he says i'm telling her that i can work and he  atory response and moreover he had been sending repeatedly every month notice to united that he was totally disabled and so it was stricken and moreover even if it weren't stricken one thing to say it was written the declaration the declaration testimony that he said i spoke with her of the mechanic and told her that i'm i'm planning to come back after the holidays i now can work without a problem i feel better ok well her stable because of this heart attack and so all of the doctors are saying that he's totally disabled and he himself is saying he's totally disabled which i'll get in just a moment and then even it was stricken a sham because he never came he never explain how it was that he had given the testimony that he had this of that earlier that made it impossible for this conversation of taking place he didn't show that it was a result of a discrepancy an honest discrepancy a mistake or s you in any event the other point though about the same conversation is that when he's talking when he's saying he's his claim about his conversation with ms mckinney is not that he's asking for an accommodation he's saying that he said he says i'm telling her i feel fine i'm going to come back to work after the holidays so that that is one point when he never asked for an accommodation back he never asked for an accommodation and the reason why because he was totally disabled and it's that's the unfortunate fact of this case that really precludes all of his claims i mean the man it's too bad i mean he was a good work they've put in all sorts of accommodations for recommendations and awards that he got and we don't dispute that he was a fine worker but at seventy six years of age he goes to the hospital has heart surgery and then is reported totally disabled by reason of vice cardiologist orthopedist and psyche act and psychiatrist major depression passive suicidal in the asian panic reaction sleep disturbance and nightmares social withdrawal tearfulness lowered self esteem cognitive impairment fear of driving long distances chronic neck and back pain arthritis at their all sporadic cardiovascular disease coronary artery disease and hypertension cerebral vascular disease course i would never hope that on anybody but it caused him to be totally disabled and unable to work and it wouldn't occur to the company to think well gee what can we do to help what he's totally disabled he can't work at some point and in life people become unable to work and there's nothing the employer can do he stayed employed for you know almost fifty years but it's some point you can look to the employer to make it possible for him to work when he can't and one thing that's never mentioned in any of the briefs that were filed on behalf of this i mr i count is this letter that he wrote out in his own handwriting which we quoted at page thirteen of our brief and he writes these are the reasons that i am disabled and cannot fulfill my job function i'm afraid to drive my car a hundred twenty two hundred thirty miles per day this will endanger my life in the life of others because of the severe pain in the limitation of movement in my neck and shoulders the chest pain the shortness of breath the business spell the hike hypertension it's all can be found in the record   in any event and one other piece of evidence that i think suggests that he was truly truly totally disabled was the fact that although counsel said that he applied for jobs in two thousand and three that's not the case that was not his testimony the first time he said he was thinking about applying for a job was with the lexus dealership and he said that when his deposition was taken in late two thousand and four he said he was thinking he would go up why so all that time he never because he must have felt totally disabled but in any event this is this case just presents the question what's a company to do when there's nothing to do i mean there's just nothing to do nothing to do is totally for sure because he was he had no information about the other disability the orthopedic disability that and the cardiovascular disability of dr block was not saying hey i think i think i could ever have cleared him to go to work and dr black never did and that so the fact that he could never work really disposes of all of the claims because even if it disposes of the of the discrimination claims anyway the age discrimination claim of the does in the disability discrimination claim that saying both the one to disability discrimination is one failure to accommodate the other one firing him because he's disabled the fact is he couldn't work so it doesn't there's no motive issue that arises and then again when you look at the age discrimination claim it is such so it's to be nonexistent really the only thing that he pointed and one other thing that i was not coming to mind right now that he withdrew all those and he ended up a lying on one and only one thing which was that the regional manager patrick stars would come to the district once a month and say hello to everybody and he would shake his hand and he's in he said that every single month they have the exact same conversation and he would say you're getting old sam when are you going to retire or you are old sam when you can retire and would while he was shaking his hand and that the day i die and that is the beginning and end of the evidence the past stars are somehow biased no more than that they mischaracterizing the briefs every once in while trying to make it sound a little bit worse but that mr i cast testimony we went over it make sure that that's exactly what was said and that's that was the end of it and i can just imagine that the attorney thing because you've indicated that you know it is that case the company we hope that that might have been an incentive for mr icon not to make and spend more money on a case that seems to be unfortunate expenditures been quite expensive you know there's a lot of employees and you know the statutes the statute this is sort of an  application of the statute all right well if you take his complaint which probably we would all agree is not crystal clear as to what matches up with what yeah i'm not sure wasn't base of the contract thousand dollars back to the underlying basis for it though as to why the two eighteen point five cents you understand about the statute says and i understand you're saying it's based on this contract but why is the kind fact for unpaid wages as the maybe would you like to go back there i could if i can report to the court like i have to get my clients authority but you know i don't think they're really excited to get money from a strike i would something i don't think so i think that's a possibility shall i send a letter to the court if you decide that you don't want to do that you can let us know yeah you know he  employees i mean it's really really in i think serves a great public purpose but it's a really unfortunate thing when you've got employers who get sued when there isn't a good plan and they end up spending huge amounts of money and they really can't recover their recognize having yeah well actually actually i was just i should say we actually sought additional attorneys fees under the you know the discretionary fees and what happened is the district court signed an order  know let's talk about the merits sure of the merits of the discrimination claims the point is this one a player knows of an existing disability and if they're going to take the position that they thought this was a total disability permanent they're not using the word permanent all they're saying is totally disabled in the worker's comp setting that has a particular meaning doesn't mean that you cannot work and a job within a combination as just seven years ago in the cleveland decision what's the stables on the slow security benefits at which the a d n a versus other systems is totally different and needs to be clarified in particular circumstances and the case before this court who had a history of different health elements a different disability for lack of a better phrase and worked through them fine taken very briefly in the past this one was more extenuated but he'd worked through them fine up least four years five years before this time three so this was nothing brand new to the system this is nothing brand new to what the defendants knew this you also had had a car accident i believe in two thousand and one with some minor residual problems his job did require driving at different points in time and when he was written for the company but it was it was important for united insurance under the sampling housing act to at least in good faith engage in the interactive process and it's very hard to fathom that they had any interest in doing that considering as the record shows they plan on firing for something else top totally anyway according to what their own testimony is they claim they were going to fire him over an error that a temporary subordinate made or maybe it might have been an intentional act that's unclear on the record but mr bucky and that done they were going to fire a move that anyhow they claimed that they wanted discovery in this that these were not friendly exchanges they were not oh you're getting old i'm getting old let's laugh about that they were pointed to him tell him it was harassing he used the word harassing and is that position because this is who he was at that point in time yes he was by far and away the oldest person in his office but he was still productive you still have to do his job and that's something that they were never able to dispute on summary judgment than confident evidence that he was doing his job and fight to do