you moved to the third case this morning cody versus kind of  the terminations defendant's actions as minor trivial and frustrating or volatile or tease and consume all the evidence as a whole not consume individually as the court that the district court erred by finding there was no casual connection to defendant's actions the issue that the defendants punish mr coty first protect effective that he is the one that should have been for the jury to decide mr cody had witnesses that were in management roles the claim that the sheriff's moving mr cody to the courthouse was punishment i'm not sure people wise people like mr cody want to be in front of bullets but he worked them special operations on top of the i'm sure this is a job that he he was discrimination claims and know how to investigate them so little information is required to put employer on notice to flee from the first count on discrimination we had to show that he had a disability which we didn't even effectivity suffered a verse action and has a casual connection his requests are not to be was simple he had a medical condition that was a disability instead he was immediately moved to the court house he gave the takes medication injections and patches he's limited to certain vehicles because of that he can't lift heavy objects or lift overs and after driving he must remain stationary for a while so that's all the complaint and we believe the court had a hair and we should have been able to move how we believe to jury but at least the summary judgment  prior dr no that side and that's uva is something that he should be kind wasn't absolutely required but there was no interaction by the employer at all  alternative we could either sundin paul or move him to the courthouse but as we know that's not true the s u v was an alternative it didn't work and then ultimately he isn't enough to be favorite thing for them to do those kick him off the road so so there's there's a case that just came down i think it was an april the freeling case it was after we drafted our after we wrote our briefs that says the questions are whether reasonable person in plain of circumstances would be dissuaded from engaging a protected activity and what we're arguing is that's not the safest  is a gentleman his life is to stand in front of bullets is to protect people and so he even went and he's one of the few will eat that's on swat it's like taken someone in a job for example that works drive and he's allowed duty and there's no dispute he can do the courthouse chop in fact he can pretty much do and think that the question is whether someone in his circumstances whether that was  punishment and the the record shows that were two people management the quartermaster and chief bilodeau that said going to the courthouse is a punishment and so we think the jury should have been able laughs that's for me nots but that's what he wants to do in his life that's what those altruistic attitude is so we have the transfer the duties are different training is different in the court halls and so if he sits at the courthouse too long he may never be able to go into swath he loses some benefits from that on top of just the actual job than what they do shortly after they transfer him they say now you can't be on swat because you're in the court house there's no policy there's no reason and we not only did they have no real reason for taking them off swat but they have explained we can keep them on swap while he's on the court and the other thing they do and one of the things is the in or says you can't just keep looking at each one of the elements and say ah that's not a big government that's not a big one you have to look at the pictures a whole and all the things they did the require him to make a plan for his  to reactivate and to swap pal sees no procedures in the record no one else has ever had to do this and swats a twenty four seven job quality only missed a few training exercises he didn't lose any player never curse and so one of the things i thought about that is if you know you just punch tap someone in the chops one or two times it may not be too bad but a few times a discerned point it's clear it's a punishment it's clear don't file an eel seek complaint it's it's that's the question though where the court draws a line and letting this go to the jury does the record indicate whether any of the other officers who carr question so the record is clear all the people in swap including mr cody when he's not running around in this car they use their personal vehicles and they do that and they never had to create a policy for they don't they may be out with their family and when they get a call they jump in and go to the sheriff's office and their personal the air is a policy i don't know about your situation federal system where you are required to have make sure you have a secure walk up thing in your personal car if you're going to be doing courthouse in and and and and that would be fine if there was this policy we went be able to argue this issue but there isn't anything  remember to come back that i don't believe there were any camps that that were using their private vehicles i believe every car other than was a in official be able under cover vehicle that they that brought the record so this was obviously an unusual case for an officer to be and to be brought into a situation where he was now on the way in court services instead of on purpose i don't think the record contained the swat may not have anything to do with it though if he has a personal weapon correct and he when he was in other words to get like this person weapon in a vehicle or use efficient weapon inside the courthouse correct right he then this is the swat weapons are separate apart from the if they do carry out a weapon inside the court indications that he's substantially limited in a major life activity it's that that is specifically absent from that complaint which is why i got dismissed several times a paragraph of  operative complaint in this case which is the first man to complain paragraph asked asked specifically states that he assisted financial limitation in the major like activity of driving certain vehicles which this court has has found in the w case the driving in and of itself is not a major life take pity so clearly driving in a crown victoria or driving in the school or or any other type of vehicle is not a major life  in because that would have affected his ability to be a police officer possibly it could have affected the essential functions of that job and he would have been able to be a law enforcement officer in the court services was dismissed on the twelve b six so i mean the main crux of this case relates to the retaliation claim i would respectfully submit to some action that might be taken against him that he didn't lie in this case it's clear from the record he did not want to go to the courthouse he wanted to get a different car he testified to that in his deposition and the restriction at that time was he can no longer drive in his assigned vehicle it's up until that time it was he would prefer it would be preferable to have a different vehicle and that particular doctor's note that was kind of along the c chart was he can no longer drive in that vehicle so that the sheriff now is confronted with either having him stay home or  going to the court house and that's what they chose and that was a perfectly reasonable accommodation for that for that restriction and i know the court is aware  sheriff's terminations that there was actually more leg room in the crown vic so the explorers essentially taken out of the mix whether there were some available or not is kind of a red herring there wasn't any occurred after that there were five alleged adverse actions if you'll notice from the complaint there's only one that's played and that's being moved to the courthouse all of the other ones the other four i brought on myself by asking questions that his deposition is there anything else a train that you know kind of whack him out for later out and saying oh but this is also retaliatory so at his deposition he came up with the i was placed on an active swat status  i had to have a safety plan approved when i returned from the court courthouse post surgery they put me back in the courthouse and then once i went back to patrol i was given the midnight shift i point out to the court that it summ courthouse post surgery and being placed on the midnight shift upon his return to patrol so really the only argument that is made in summary judgment and before this court is his transfer to the courthouse and the not surprisingly i would say that the district court got it exactly right as far as his attempt to repackage failure to accommodate claiming as a retaliation there was no adverse action and there was no evidence of a pretext as i mentioned the measurements had been taken to the car and that was ruled out because because the labor was actually more in the crown vic when you consider that the seat pan that argument is not addressed in in the plaintiff's brief  that the only at the only other evidence that is set forth in plaintiff's brief is the argument that it was a punishment post and that the testimony was from three other sheriff also not being considered by this court ultimately what we have is with respect to the retaliation claim is a lack of that evidence of a bench kind to support any of the elements  time left for your argument t day well that wasn't communicators for him urgency was it had to be done right away part of me is far is what the doctor said no but that that was not the first doctor's note there was two that are acknowledged in the complaints of the sheriff's department they had risk management come in and take these measures measurements which would indicate and cody had testified in his deposition there were previous doctor's notes so obviously they knew there was an issue with leg d what i have issue with is that they had no interaction with with either the doctor or cody there were those notes saying that like an s u v they want to concentrate on that lady from word they to and how have you done that that is true and i in the complaint it does say that he is he has a medical diagnosis of this hip impingement and that effects his ability to year old you've been able to show us is that he couldn't work in a particular car in a particular job but i think what i'm getting at is this under the a v a under the statute  and in this instance he had this disability although he could perform his job when the doctor said he can't perform is a patrol officer it was just this one it was the one function of being in the in that particular card that aggravated his diagnosed medical hip impingement and so he requested a reason he made a reasonable accommodation request i mean i likened it to someone who sits in a wheelchair and obviously perform administrator for administrative function they ask for an accommodation to their desk because of the wheelchair and does that mean they should be put in the cafeteria in front of the cash register i you know i'd liken this to that he made a reasonable commendation it wasn't one that created a hardship for the sheriff's office the sheriff's office had the s u abuse and there was sheriff was unaware of of the doctor's note if it was before that time but the judge in the just district court also says the sheriff's office was aware of the problems that the plaintiff was having from twenty eleven on the sheriff the sheriff's office was well aware that there was a problem then he got a medical diagnosis in the dr so started sending notices indicating the same and also  saying that and then like an s u v was was requested and then when he submit c e o c c complaint a simple call to the doctor as to the intent and meaning of the doctor's notices would have cleared medical form to have this doctor fill out and although and he returned that this was in april he returned that in may and that doctors note that form indicated that it was an elevated seated s position that was needed they claim when they want to return him to swat which was the next september didn't know that tells him that he's going to be returned to the swat team said that they are now in receipt of the additional form which he gave them in may months earlier and their form clears up very well that it's an elevated position that's needed a simple call to the doctor when that ido see complaint came in and would have told them that immediately and there was arthur but was it ever ruled to be inadmissible or missed no it was never ruled to be inadmissible and i question to me that's one of the reasons why this is not properly dismissed and a summary judgment motion because it has been acknowledged that their testimony by three different officers is in the record and why that testimony should be dismissed without unto me those are questions general and questions which are a fact that should be decided by a trial not just disregarded by this ruling our son and it summary judgment in favor of the defendant