veteran who works at hickam air force base investigating airplane accidents for a squadron of air force and why national guard planes he's worked for the air force for forty six years in various capacities he was terminated by the air force after requesting reasonable accommodation for a stroke by a sergeant although the air force knew about the stroke and disability and prior supervisors took steps to accommodate his injuries a new sergeant rejected papayas request to throttle back on work never part of his job description threatened him with dismissal and fired him six months later under the pretext that it was necessary because of budget uncertainties in washington there are a lot of facts in this case and almost none of them are contested and to the extent that there are contested facts there is solid evidence to to raise trial issues of fact and summary judgment should never have been entered in this case i would say from the beginning the biggest concern i have with the judge's ruling and also the answering brief is utterly ignoring that critical testimony by sergeant murphy that he called and talked to prior supervisors on the day he received the june t h two thousand and twelve letter asking for a reduction in his workload those two individuals one of whom had already received a copy of the request for a reduction in  it as a request for a reasonable accommodation like i had occurred before and the judge's finding that somehow this letter which was sent to immediate supervisor was not a request for an accommodation when literally everybody in the room knew this gentleman had had a stroke and had already received numerous accommodations for a prior supervisors because somehow he got a request have a communication with your employer even if they have a serious medical condition that's not a request for accommodations so this e mail mr compiler indicates that he's going to try to back his work to one hundred percent of what he's required to do he feels as if he's been asked to do more than his job description and that others in his area or his department are not carrying our fair share of the workload but he doesn't say anything in there that i could see that this was a request for accommodation that had anything to do with his health it would it really appear just to be complaint that his coworkers weren't doing their fair share and so he just won't cut back to one hundred percent not that he want to change duties or restricted duties or anything to do with an accommodation for his stroke so where is it in that court vacated on other grounds but it is clear there's a triable issue of fact of whether that letter in the context of the accommodations and stroke and disabilities that the air force was aware of was situation where the employer is aware that there is a need for accommodation but there is no specific requests now i understand barnett has a limitation and that is some comments  from about whether or not he was incapable of requesting it none of the cases however that limit barnett with regard to that particular factor involved a situation where  the employer knew all the details about prior accommodations and prior and disability this is so clearly a letter for requesting accommodation now but what i'm sorry what prior conversations did he have prior all we have is the testimony of murphy in his deposition where he says that he there's a specific quote by miller and in both the opening brief and the reply brief that says we accommodated this gentleman  because of his disability miller was his prior supervisor specifically because of the disability caused by the stroke which were one side of his body had a very difficult time  and of course he testified five years before decision in this case in front of the counselor that part of the reason he needed this restriction is because product returns involved weight lifting again it isn't i understand where the judge is coming from but the judge as far as i'm concerned made a factual determination which is which is not what you do in a summary judg motion and i don't think you stop with what's stated in this specific document when you look at the barnett case when you look at the humphrey case which also cited they clearly say that if it is clear from the overall record that they were prior accommodations and that there were injuries and disabilities then all you have to do is look at what happened when mr q received that exact same email how he reacted he did not like wait a nd i want to make sure i understand what you're claiming with requests for accommodation so so you understand mr pilot had said that this terror workload had existed from before the time it was struck he come back for seven years he pulled more than his fair share of the workload and he has just come back to one hundred percent but he didn't ask for an accommodation not to lift things not to go on top of airplanes not to do anything and i think if i recall the testimony you're discussing depression professor said something about be careful don't have him climb on top of planes but that's seems to be far different from just saying i only want to do my my amount of work and not anybody else's to make that a request  sterling record the whole time even after his stroke he was very reluctant to complain because he knew they complain or zz and the services get get in trouble that's what he said he said i'm not going to make a big deal about my disability but the fact is his prior supervisors had reacted to it and under barnett if it is clear that somebody has disabilities and and you accommodate them and they come back later on the requirement for interaction interactive discussions and for accommodation is a continuous one that's what humphrey says and clearly in this case and that's the hurdle of course this court has to get over i know it's a real problem  he's in the same position before the stroke as he has before and that's this feeling a little put up on because of the extra duties so he does extra duties before you are almost making it sound like the employer has to define the need to accommodate when it's not asked for and when this record we already had that situation i think way back and one thousand and six so that's the hurdle i'm having here maybe you can  gap i would direct you to the date this started if you look at the email it's a two thousand and six situation why was there no complaint from two thousand and six to two thousand and twelve he did all this work without complaining and without requesting an accommodation and tell after his stroke what he essentially said and this is in the record in his declaration is that after his stroke things changed it wasn't the same as before he volunteered to do that other work before and never filed this if he list but the stroke was two thousand and ten and the email to sergeant murphy was two thousand and twelve so two years later he sends an e mail saying basically he is complaining you say he testified you don't complain in the air and the in the service but he's complaining about his coworkers six years later ma'am so it was two years after the stroke yes two thousand and ten and six years after he started getting getting assigned this work sure two thousand and twelve he feels if he's being put upon it are too hard but destruction two thousand and ten and that's the that's what i'm going home edition when this started to address your comment is that he did not complain for six years and a gain mr q sergeant q received this same email and said this guy needs accommodation mean you careful don't don't think you sergeant q received it you mean because email it was copied to me mr q and murphy received exactly the same email the same e mail we're not talking about two different request you're saying this one email was sent to search acuteness prior supervisor and that's sufficient to be a request for combination let's focus on what how mr sergeant murphy responded he went to h r he was asked by the prior supervisor to go to h r work on an accommodation that's clear in the record that's not contested he goes over there and he says in his deposition i don't have to tell them about the disability and the stroke because it's that's none of their business that was his reaction how is he supposed to relate to h r what happened and how to respond to this e mail by not telling them that this gentleman had a stroke and disability and has been accommodated by prior supervisors and what's his motivation what is murphy thinking murphy is reacting to exactly the idea in the service that weiner's get fired which is u ltimately what happened this gentleman was fired six months after murphy threatened to dismiss him if he did not do everything he was assigned to do without complaint  similarly situated your honor we're talking about one man which is another reemployed and militant who is working on fuel systems horiuchi horiuchi was described by my client as someone who had no disabilit why my client testified and which was never contested by the air force that he is just as qualified and had prior certifications to do fuel systems and that is why the false statement by no bought me and his justification in the declaration attached to the motion two percent three judge meant it says that my client had no experience or training in this subject of fuel systems is a false statement which your honor is exactly why  that was transmitted obviously by murfree because all the bought me did was rubber stamp a recommendation by a sergeant who six months before had threatened to dismiss him not because he wasn't doing the work but because he had the temerity to ask for a work reduction you want to save your remaining time yes thank you thank you honor may please the court case in iraq the united states plaintiff alleged discrimination on a variety of bases on a number of theories and the district court correctly rejected each of them on all of the events pre dating plaintiffs terminations from the air force t court correctly dismissed those claims because plaintiff failed to consult an equal employment opportunity counsellor following the alleged misconduct and out of claims arising out of plaintiff's terminations the district court correctly rejected each of the claims because there was insufficient judgment insufficient evidence to survive summary judgment on each of the claims as to plaintiff's claim that he was discriminated against on the basis of his disability there was no evidence that he was terminated because he was any unable to do his work in fact as plain just counsel just conceded he had stellar performance reviews throughout his time in the air force he was also not retaliated against in retaliate scuse me he was not terminated in retaliation for purportedly requesting disability accommodations as a judge beatty commented the communication between plaintiff and the air force was merely expression of frustration with his duties that he had been performing since two thousand and six long  predating the stroke and plaintiff presented no evidence that the events following the stroke caused him to be given additional work or that he was ever stressed in his position again plaintiffs stated in this deposition that he performed all of his tasks admirably and without any particular complaint from his supervisors he was never written up for poor performance and was because it's consistently given positive performance reviews and plaintiff's claims for a hostile work environment simply bear scrutiny there is no evidence that he was subject to and abusive environment in his workplace and he that we claims that he was purportedly walking on eggshells following the exchange with sergeant murphy in two thousand and twelve there was simply no other evidence its address that he had been subject to any particular working environment that was hostile to him if there are the court has any questions about the record i'm happy to address them it's would have been aware of plaintiff's physical condition plaintiff was repeatedly given tasks that would accommodate him and he has played just counsel admits he was not unable to do those tasks well i have a question so mr pryor argues that he he made a request for an accommodation or what should have been understood as your request for accommodation when he asked him do his his assigned task and not do more than he was supposed to do was when he was terminated and so then we go to analyzing whether the air force had a legitimate reason for the termination they have posited the reduction of forces that was mandated by you know higher forces by command and they had to do that but the record indicates that mr pyne was the only one the only reemploy to know it and who was terminated as part of this process others are retained such as a historian and  months after this process the air force hired somebody else back into that position how do you address that response is your honor st the historian was actually a i believe excuse me so the historian was part of a different squadron who would have been subject to different mission critical needs and as the air force's enterprise wide directive explained that each squadron would have had different mission priorities and there was substantial flexibility given to commanders to evaluate those particular needs of each squadron there's no evidence in the record that the individuals who evaluated mr pio also evaluated the historian and in any event it's natural to assume that a historian would have specialized certifications that perhaps you or i would not be qualified to perform that is the historians position was sufficiently specialized that no other employees could have performed that work  master sergeant murphy explained and which certified up the chain of command several other employees in the th maintenance group could have performed the functions associated with plaintiff's position of does not contest that and there's plenty of evidence in the record supporting that statement and there's no evidence that sergeant murphy's recommendation was inconsistent or that there was any reason for him to to lie all of the evidence supports that fact i can direct you to excerpts of record one  floor of the maintenance group and would have seen all of the employees in action that is he would have understood which positions were and were not mission critical and there's no evidence in the record to suggest that any of the other commanders in the air force hierarchy were biased against m in any way much less that master sergeant murphy was biased against well what about hiring somebody else in a position six months later going to responses your honor for one there's no evidence on the record as to what that particular person was or what the demographic characteristics of that person plaintive provided no evidence and to survive summary judgment on that fact nd that the position went on occupied for six months only underscores the fact that the position was not mission critical for those particular for those six months other employees in the th maintenance group were able to fill the responsibilities of that position and backfill them in addition to their own responsibilities so that the position was subsequently filled is no evidence of discrimination and in any event well i don't think there's any doubt at least in my mind that there are tribal issues of factors to a sadistic zachery what nobody knew whether there was any independent investigation or whether or not he just simply signed something that came down from murphy through authored the recommendation that went to washington that's in the record that's what said signed it he was the major who is above it is so it is so clear if you look at the declaration that  know what was going on he specifically said he never heard of the disability those were not reported to him by it if you have a situation where you were direction for visor and asked to recommend whether someone should be dismissed and you will hold from higher chain of command that you threaten this guy would dismissing him six months before you are prejudice you compromised yourself if if nobody had known about that threat he would have sought information elsewhere and it avant need to make to false statements of fact which is that number one my client had no background in fuel systems and number two that that was in the qualifications and experience were important when the judge found that they weren't important that the only mattered was the job duties it is clear there's a problem with that recommendation keep in mind that that letter from washington did not say what mission critical meant it did not order a reduction it just said get rid of anyone who's not mission critical it did not even tired to keeping airplanes in the sky it set up a perfect situation where a sergeant with a vendetta and it's enough of a vendetta that somebody comes to him and says you're giving me too much work and i need a reduction and you don't do that to a sergeant without that sergeant getting even with you to say there's no motivation for murphy to get rid of him when he's threatening him with dismissal six months before he fires some is just you know ignores the record there's enough of evidence in this case to pass this case to the jury thank you thank you thank the council for argument this morning the case of capoue ever since wilson submitted