condition that affects somebody system here is a must school skeletal system and the second part your theory now is is not that he's entitled to disability is that they fired him because they thought he had a disability right that is one gesture and since it strikes me that it's pretty plain that there's no genuine issue about that because they didn't know he had a disability in fact that they asked him for a doctor's he didn't provide one and they didn't believe ms forcing till another day they didn't ask them for a doctor's note but he did provide that with his testimony that he provided one and he also told them verbally  that he had a back condition that had been the doctor that he was put on a medical leave as i understand about the doctor's note the doctor says he never wrote one in the supervisor says he never received one and the judge said where's the note if you're going to prove there's a doctor's note the best evidence is that doctors know not your hearsay testimony about what the doctor's note said yes all of all of that is true except for the doctor never did not say he didn't write them no he said he didn't know one way or another whether right you know he doesn't always record in the records whether it's all right and i thought he said he had not written a note to give this guy two or three weeks off now if we resolve that issue a factor in favor of your client and we decide there was a no or that he otherwise told his employer that he was hurt that he hurt his back isn't another problem you've got that they didn't fire him for that reason they can show a legitimate nondiscriminatory reason because they and what they admittedly fired they have a nonviolent policy right and they carried out an investigator's report that indicated he had violated that policy so even if the report is wrong and are they were mistake that would still mean they would be entitled to summary judgment if they filed if they relied mistakenly on their understanding that he vial at that policy their testimony was that it was not against it it was it was in compliance with c time is there any indication that they fired him for anything other than violating that policy that an investigator look into in the investigative reports that he violated the nonviolent policy is my understanding that is their testimony later is about their conclusions at the time so their conclusion at the time was the exercise self defense but they also think they may have been wrong but that doesn't mean they acted in a discriminatory fashion if they thought he was sometimes going in self defense and he the terminations and if they thought that he had violated the policy even if that turned out to be mistaken that is not a discriminatory state of mind it may be a negligent or incompetent not what is the policies that are actually alive and active and the lie that these policies is that my client is is both is that c b s allowed you to exercise self defense that was their state of mind at the time that he their state of mind at the time was that he was acting in self defense and that they do know that their policy was you do not fire someone for acting in self defense only what that would mean what that would mean if i'm understanding you correctly is that there investigator blew it and wrote a report that incorrect it reached an incorrect conclusion in concluding that this individual violated the policy what if he's wrong here's what we're trying to get you to grapple with what if the investigative report was wrong about what the policy did or did which concerned failure to accommodate their failure to engage in an interactive process what are the damages that you think are associated with those claims because your client continued to work and be paid throughout that time so what are they damages if any from those two cl assigned from the this is the question aside from the actual separation in august of two thousand and thirteen do you attribute anything else to your emotional distress answer no so as i understand  think in context the way i read that question and answer let's be fair he says he's getting his full pay and he says you didn't accommodate you didn't engage in this interactive process and he's asked where you did you suffer distress from being fired yes i did just suffer stress from other stuff no at least that's how i read it so is there anything else in the record that demonstrates that he did suffer emotional or other damages on account of claims five and twelve i'm not sure i'd disagree with the reading that question is i understand that you disagree with that i'm asking sort of the flip side now which is is there anything else in the record not in the complaint because we're past the complaint to summary judgment here is there anything else in the record that supports any damages that flow from claims five hundred twenty i'm not sure because defense and scuffle in the store as i understand it looking at the record now there's a genuine issue of fact on whether he acted in self defense because some employees say didn't some say he did and he says he he did i watched the video and i couldn't see it but i'm not on the jury to me it looked like he tried to apprehend the shoplift by force and held him down till the cops came and then handed him over to the police and but some people say otherwise certainly if a shoplifter came at him with a broken bottle based on  on all the evidence c v s would have said well we wouldn't fire him for defending himself against a shoplifter coming at him with a broken bottle and that's basically your theory if i got it right so far yes ok now let me get to the  crux of my question if what c b s believed when they fired him was that no shoplifter came after this guy with a broken bottle with a lifted bottle to hit him based on news examination of the case at the time they concluded he just tried to violently to apprehend a shoplifter we ended up with a scuffle in the aisle and that's just the kind of thing our no store violence is meant to prevent so he's gone if that's what they thought and there's no genuine issue about whether they thought that there may be a genuine issue about whether they were right but there's no genuine issue about whether they thought that why doesn't the public policy argument disappear and why doesn't the retaliation for disability disappear the bottle overhead where we swing it down everyone testified that that's what they saw and when testified that that's reported everyone knew about that and all the other employees by the way had got into interaction with this gentleman as well and none of them got fired about thirty seconds from the end of your time and if you want any rebuttal time this will be the time to say thank you very much  prove any damages with respect to the alleged failure to provide an accommodation he said we had not raised that in the motion for summary judgment we actually did raise that it's in the record of page twelve twenty two that was phrased below for both claims five and twelve or just claim that if someone was being attacked obviously they could defend themselves that wouldn't violate the policy but the policy i was referring to is a policy that says if you suspect shoplifting or if supervisor again do not pursue a shoplifter out of the store and do not physically engage with the shaft put this in page thirteen eighteen of the record and in page thirteen twenty of the record has a policy against violence in the workplace who is the decision maker to terminate his decision makers would be i  on the conclusion of the investigation i can get those for you but i think no we do have it and i have the determination paperwork which is at page thirteen seventy seven of the record which was has the district managers name on it and it would have been reviewed and approved by h r and they did rely on the investigators report to reach the conclusion in no where in here does it indicate that they concluded he was acting in self defense whether they concluded that he violated policy because he showed excessive force right we've got to act ok so i think this case comes of all that with respect to most of the claims to the point your honor for making with with opposing counsel even if you give him the benefit of the doubt that he could sta the discrimination retaliation or wrongful termination public policy claims it comes down to kenya stablish pretext because c b s has stated the legitimate to the video there usually multiple surveillance cameras in a place where there are surveillance cameras that the video flip from one to the other so that it would be possible for the shoplifters that come out of the res bottle and we wouldn't see it on the video my understanding of the video your honor is that there are two cameras  captured thing there is one that showed the front entrance of the door and i believe the opposing counsel had that smidgen you don't really see anything from that angle and the other camera was faced at a register area which only kind of focuses on the still fred astaire and you see him coming in and out of that but there isn't like the camera was moving or anything it's a set still camera so there are some there is a sub split second where the altercation starts it is not caught on the camera and that's it that's what the opposing counsel point is because you can't see  he looked at the video and he concluded based on that that he had violated the policy that report was made to the district manager and h r and ultimately the term a nation was approved if we if opposing counsel can prove that it was mistaken or wrong that tenth eleventh in portions of the eighth and ninth kinds of action with respect to this failure the failure to accommodate the district court didn't reach this issue i do believe there is a credible basis to find he didn't properly fall on that with respect to the cause of action for failure to engage in the interactive process another basis to uphold that would be there is nothing to be gained by the interactive process here he didn't he said he didn't need leave which is the only thing the alleged note was supposed to say on the other hand he said he didn't need to leave he also submitted a declaration to the court which is that page ten twenty nine of the record where he said he was able to do all his essential job but he said both things counsel he also said that he couldn't lift question what parts your job were not able to do he may have said that if the position but he submitted the declaration thing he actually did continue to perform his job and he didn't need any help didn't ask for any help the only thing he ever told either manager was one said i've hurt my back would fall back on the issue regarding the failure to properly untimely exhaust and that the second incident is not asking for an accommodation by just saying my back is bothering me the final cause of action i think is a failure to prevent discrimination and harassment and that easily falls if the court finds for us on the other claims also because of the mcdonnell douglas issue here also if there is no we believe the case i hold there's no private right of action for that but more importantly even if you get to the last reason the record is replete with s s policies against discrimination retaliation unlawful conduct in the workplace appellant admitted he was well aware of those policies and appellant never reported to anybody that he was having any issues or concerns so believe the record there is a basis to uphold summary judgment on all the claims either on the same basis as a district court or any other basis that supported by the record let me get you back to the workplace violence just for a moment i want to make sure i understand this right and i may not theory of the discharge was that an employee who engages in any violence at the workplace gets fired at the defendant thing contended well that can't be that simple consistent with california policy because an employee's entitle to self defense and i thought about that and i thought well if somebody is coming at you with a broken bottle surely you could push a chair in between you or cart or something just to keep him from cutting you up with a broken bottle ad seems absurd to say no you can't do that you have to just suffer it  but now i understand that they fired him for excessive force rather than any force and they're saying that it that they really don't have a policy that it says and they really don't have the written policy that's not their real policy their real policy is just not too much force or beyond what you need for self defense and at this point to get a little lost i don't know exactly why they fired them and what the policy is the policy broken bottle guy there is no finding that that's what he did not believe the two managers that he asked if somebody was being attacked they defend themselves without violence the policy if the policy is no use of force in self defense then when they're deciding what to do about it the three might be arguing well you can see why did this and somebody would say it doesn't matter we have zero tolerance for any kind of violence in the workplace whether it's just protecting himsel shoving a cart between him and the guy or by wrestling with him so it doesn't really hurt somebody just holds him down or whatever we don't care if he had a physical contact he's gone and and what you just answered a moment ago makes me think that's what the policy is well the policy is what's in writing to managers being asked if they thought there was a policy that prohibited something they testified to that wasn't a written policy regarding that but i don't believe there is a public policy claim in california with respect to this so you're saying that they did have the written policy no physical force and that that's the only policy and it really doesn't matter what the managers testified to a deposition and if you work for c v s you can't use any force to defend yourself from an attacker that's what the written policy says i know it's what the written policy says and you're saying that's the only policy there is yes so why isn't that against public policy i don't believe it i don't mean back up i mean let's let's take a somewhat more dramatic nothing claim here about doesn't he admitted he understood our policies strain on the policies and kids counsels never claimed that our policy is against not apprehending shall pender shoplifters or no violence in the workplace or unlawful he contends he exercised his right to self defen and that's why we terminated him that is not why c b s terminated him c b s conducted an investigation and it concluded based on that entire investigation that he did not exercise self defense rather he violated policy by going after a shoplifter which is against c b s policy and then after he apprehensive apprehended him he used the word was excessive force by wrestling to the ground choking him and things of that now why would they have concluded that he didn't act in self defense and  policies and procedures right that's what you're relying on this report that's the report i was reading from the determination people recommend i know i prefer it that i mean but i had to go to go to kleinfeld point he could have been wrong right this investigator could have been wrong about whether this conduct violated the policy that's my understanding of your argument and i think it's an important point i appreciate your backing up and well i can say but i think posing counsel raises some legitimate arguments that this investigator may have been douglas pretext there can be there was timing based on how close in time the firing was in their quest for the for the letter you know the condition and there's plus every other person that was involved  treatment there's a cashier that physically tried to stop him talking about it seems to me the obvious response to that is because we've watched the video is that once he jumps on the guy and there's an altercation it's not surprising that the other employees jump in to try to control the situation  it seems to be quality so just to make sure you can respond to my question i'll just finish it ok it seems to me to be qualitatively different different to initiate the physical confrontation there were three prior to his interaction with them the cashier b