terminations claim not on its merits but on exhaustion grounds and finally policy error in the district court when it entered summary judgment on her breach of good faith and fair dealing claims i'll be addressing each one of these in turn record is full of evidence that paul requested a transfer at various times because of her disability transfer was also discussed ad nauseum behind the scenes among the various actors that whole  venza but transfer never took place your honor well everyone want to transfer out of the drop the jobs of her stressful job that doesn't you know everyone likes a job that's not stressful but the fact that everyone would like to have a less stressful job does not mean she was requesting by reason of her of a disability a transfer yes you're on a she was requesting a transfer because the job was stressful there could also show boss so was everyone else yes your honor but transfer was not on the table for missed call because of whole benson's lack of title three compliance with their facility the record will show that tut that that entire facility was not title three compliant they were transfer was not on the table for miss paul because if she was transferred they would have to to make other parts of the  ce of the of the facility title three compliant which that which was never done therefore she was contained in a position that was stressful and she needed a way out and they failed to transfer her your honor well the fact that she had a stressful job and no one denies that that doesn't mean they're discriminating against her because everyone's got the same stressful job and then it's not a pleasant job let's put it that way it's morning hours and you got to watch your stuff otherwise you're going to get killed yes your honor we're not disputing that but no one wanted the job but you know she was treated what she got the same as any other away and see it short rather badly i don't want to criticize there the i believe much she like everyone else was not treated there with kid gloves as a practical matter how can you really rule it out how can we really rule her favor when your client was found at work unconscious responsive and you know because of her lack of a doing our job they terminator your honor they didn't terminator because of lack of her do her job they terminated her because he did not want to accommodate her disability any further your honor which titles title around for her remodeled or bathroom for her hum any more things there's a company need to do for one employee your honor title three required that that facility was supposed to be compliant in terms of access there was never an a v compliant bathroom her coworkers are required at some point in time to wheel her to the bathroom to use the restroom your honor title title eighty eight was designed to protect the dignity interests of the sealed employees for them to require her coworkers to pick her up well they could accommodate her of a don't they don't have to accommodate her exactly as she wants to be accommodated as long as the accommodation allows her to perform her work the combination directly impacted her ability to be able to get to receive that promotion to document supervisor the people the cool caucus to the panel a caucus to choose our credit to our hearts act ability to act up a supervisor as one of the reasons why he was selected paul wasn't chosen to act up a supervisor because one of the decision makers i don't determine that working at nights would be too hard for her because of her disability that's objective evidence in the record all right let me say she and other specific question on the wrongful  district court suit was filed at and e e o c complaint was was also filed prior the parties were in litigation so many things occurred including her terminations after the s honor they stipulated to it just give us more discovery they said we said we stipulate to their an amended complaint that should act as a waiver of any claim now that they that we that that paul failed to exhaust your honor the court allowed them an even that was required to determine whether another member was would be futile these these along the paul into thinking that there was no further need to exhaust all of these factors qualify for several equable if this is a good faith decision that management can make we're not here to second guess whether or not they they made the wrong business decision you've got to show that they that this decision was based on something other than oh i stated previously both doctors sort of by the she could do the work her disability caused her to be ill that the she was she was using different medication there was some issues with her son that caused her to be under stress and stress i that you all had before you and as you can see it's quite a lengthy task it's quite a detailed task and after doing so issued a fifty six page opinion in which she clearly demonstrated a masterful understanding of the facts she applied the law that this court and each of you have applied hundreds of times in title seven and eighty eight cases there are no novel issues of law before you and the facts are not in dispute before i get into the merits of the case your honor i would just ask that you please view the facts through the correct lens and that you refer to judge thompson's opinion benz's motion for summary judgment in our brief it is our position that without looking at these facts through the correct your you know i think that the argument is i believe that the counter if i can if i can characterize it was well maybe those facts as you've said in your appendix are not actually in the record but we're allowed to make inferences was going to be fired because of her disability and basically you just set up the file by not transferring her and to stamp the ofc position the way you should and i appreciate that argument but your honor there's nothing in the record there's no record evidence there's no question it's undisputed that she passed out at work in two thousand and eight there's no question that during two thousand and eight in two thousand and nine hole benza went through an exhaustive effort to ensure that whatever physician returned her to work understood the nature of the o m c job and the risks associated with failure to do so it set forth many questions of her doctors about whether she needed accommodations what did she need and in fact event that was very criticized by ms hall for this for this process but ultimately at the end of the day in august of two thousand and nine her physician indicated she needs no accommodations and you can return her to work and what's ironic in this disability case is that miss paula now i saying to this court whoa venza should have perceived her as disabled it should have assumed that when she performed poorly over a year later she couldn't do the job because of his disability that would absolutely run afoul of the a d f a and i would be here on a different case your honor as you pointed out this paul testified herself that's the record evidence that she could perform this job i ask this court to say that well when she was performing poorly  should have assumed that her disability caused her to court perk or firms would be a violation of the idea moreover after the september incident they investigated that incident thoroughly they interviewed mr hall this hall never said you know what i made these mistakes because of my disability the eighty eight requires good faith on both sides both the employer and the employee in this court has held that numerous times that interactive process goes both ways had this paul in september in response to her first incident had said hey time now out i don't know if i can do this job anymore i need it i need to get out i need to transfer i don't want to overstate there enough evidence of this record to show that  pretexts obviously the issue of pretexts has come up in many many cases the court is very clear that it is the burden of the plaintiff to demonstrate that the reasons articulated for the selection decision are unworthy of credence or that discrimination is the real motivation it is not the employer's burden to prove the reason they gave that's number one number two the reasons that were given for mr olive harv's selection well i think that to the extent i guess i would disagree with the characterization that his background doesn't look so hot so well for the accused of rape or was not it is true it is true that he was accused of that he went to trial and was acquitted and i believe there's certainly to the extent that you characterize his background as not so hot sometimes the i suppose that's the the the thing in his background mr al a heart was accused of a very serious crime he engaged in his constitutional right to go to trial he was acquitted and well is that something for her to take into consideration as to why he was acquitted these documents but that's not something that she can bring to the attention of a fact finder i don't think that that raises a material issue of fact as to whether or not the the whole argument that well to the extent they didn't think she did it was because of driving and we speculated as coworkers and like her well there was no testimony in the record that anyone said we choose you mr all of our because you miss paul have terrible interpersonal skills no such record the fact that the panel thought he did a good job is a don't see that he had good interpersonal skills and sat in an interview in which he was very impressive and provided a written plan the fact that he was facing that different decision there's no question that the definitive case on point is the amtrak versus morgan case both waiters and hits were pretty side and create amtrak amtrak the supreme court could not have been any clearer and even if you were to the fact that and obviously that was certainly judge fisher you obviously reiterated that point in the o'connor opinion citing to the morgan case and obviously adopting the fact that terminations discipline are  acts your honor but even if you look at hicks and waiters we are still confirmed for this court the relevant test in determining whether appellant was required to exhaust her administrative remedies is whether the facts alleged in the subsequent suit are fairly within the scope of the prior e e o c complaint or the investigation rising therefrom in that case it was a retaliation case the eco see in that case had never concluded its investigation it she said the district judge considered this as part of the of her disposition your honor i could not disagree with that more i i did not wall anybody i'm up against a very worthy adversary one of  and your honor when the district court judge issued its order allowing the plaintiff to file its second amended complaint mr hall having been terminated yet what happened was is that in the first initial this point in the courts as well the charge mentioned disability the first amended complaint some of the facts had disability in it even though there was an eighty eight claim so we're going to say it relates back i would argue your honor that the plaintiff's statement to this court in her brief that the district court and this is a quote agreed that hall was not required to continue exhausting discrete acts of discrimination appears in  the you know the issue of whether someone similarly situated and which of course goes to whether or not an inference of discrimination can be made the courts have held because obviously it's a big deal to say i was treated differently because of my identical but most respects the incident to which she refers occurred in two thousand and five under a totally different supervisor it was it was a totally different action and all of that is in the record so i'm not going to repeat it here but it had to do with a faulty temperature gauge decision maker has two situations that are virtually identical but i'm going to treat you differently than you and that allows the court to create this inference of discrimination this occurred in two thousand and ten these instances in two thousand and five under totally different management super none of the managers were on the same council let me ask you about the wrongful termination claim and the timeline is so that the district court find that that was time board  miss lawrence argued that you consented to the following of the third amendment complaint and consented to the the and waived the requirement to cheat exhaust and she asked we're going to move to amend it a third time the fact that we understand the rule fifteen and the district court's application of rule fifteen in that it's a liberal standard certainly did not mean there are not an objection to her filing a piece of paper in court that hey we can see why ability we waive all our defenses we immediately asserted a defense we knew that she had exhausted administrative remedies there's no need for us to it to be any clear to argue from a policy perspective that a defendant who does not object to the areas of accommodation but isn't there a genuine issue of material fact here as to whether or not as to whether or not events  properly accommodated isn't there enough to get this question through i don't think there is your honor because i think that the two accommodations that issue in this appeal which are the transportation from the front gate to the terminal building and the automatic bathroom door i don't think there's a material issue of fact on either certainly on the transportation it is undisputed based on his hauls own testimony that she was fully accommodated and this court has held over and over you're not entitled to the accommodation of your choice and with respect to the bathroom door the issue really that the district court faced was whether or right thank you very much very much this thank you homans a raises a few issues i'd like to respond to first with regard to the amtrak case on the issue of exhaustion the amtrak case did not overrule waiters amtrak was a backwards looking case i events are still unfolding there is no point for further exhaustion expressly here as in the case where holmgren's us pacifically requested more discovery let's just get this all done in this forum we will all there to get it all here it was not just a matter of consenting to the filing of a paper they consented to litigating that the terminations claim in the district court requested more discovery and the extension of the discover bank to resolve this issue but we do not believe there is such such conflict going also that we have to follow the first case yes your honor it also says you have to follow the first case you are correct with regard to caps whether whether when they weren't cast your honor she was placed on caps when other people for similar conduct would never have been placed on your nice for my question  dollars and he was not terminated paul made no such errors of gravity and it's a for a jury to determine whether or not the errors of paul were these are all created post h and these issues were created to how high the fact that they wanted to terminate her urine or best evidence that they just charger because of her this and or because of this city or gender or   appropriately just what's your best ever that made the statement that he did not want to transfer ophrah her as a problem to another department that's in the record and it remains as they try to accommodate it and it didn't seem to satisfy her the combination was to transfer her out they didn't do that they transferred everybody else out your honor they didn't transfer her out because that required that more title three hundred fifty thousand dollars who remembers that if it wasn't because it was in his brain that any place she goes they would have to spend money to be able to to to fit the the facility and actually meet their title obligations that's why everyone else who was who was not this able to find a path out by paul was stuck in the one sick ordinator they didn't want to meet their title three obligations and spend more money to make the facility compliant period that discrimination and paul was terminated and not transferred out of your honor because they did not want to make the facility come pliant and the cockpit performance issues when   complex case big record and will take the matter