around nine hundred eighty six at the time of her terminations she was fifty seven or fifty eight years old just just so you know she's been there while her job was accused clerk the q c clerk for u p s handles damage packages if you order a case of wine two bottles come broken they re part of the eight stick a letter and it says something was broken they send it on to you she was the only  facility in the fort wayne facility where she worked at severely large i think i could be wrong the defense counsel may you know i think they had around one hundred forty drivers i'm she worked late afternoon and got off work around midnight or a little after as i said she was the only q c clerk she did have assistants mostly from joe groping guys or who is the person who shows up throughout the whole case two issues on appeal the first one is whether the district court improperly ruled that she waived her failure to accommodate claim because she didn't state in her pleading that quote the requests for accommodation were denied there was kind of  beef before we got up here over the charge that was attached to the pleading and i argued federal rule civil procedure ten see the charges to exhibit c attached to the complaint it was incorporated by reference to use for any purpose it was actually perpetrated amended in a paragraph three of the complaint that's the appendix three thirty six to three thirty seven  federal civil procedure requires a short plain statement showing that she was entitled to relief we believe she satisfied that burden we stated she suffered the loss of her job she was the respondent was motivated by complain it disability and furthermore retaliated against the complainant by firing her complain it tried to engage in their protective conduct complained that tried to engage in the interactive process and tried to get reasonable  accommodations complaint contends or term nation was discriminatory on account of her disability complain also detention was retaliated against for trying to engage in the interactive process making requests for reasonable accommodations and she was terminated at least according to the defendant because she brought in this taser which they regarded as a weapon and threatened  co employee if if that if that was the reason she was terminated wouldn't that be enough regardless of the the disability issues that you've raised with that alone be enough to justify terminations it could be your ana yes it could be i believe though when you look at what happened to her it's not beautiful looking at it in a vacuum you're looking at all of the buttons and i argued good faith belief there was no real good faith belief in that claim plus the defense part of her the reason i'm here is the defense never moved for summary judgment on these two claims if you look at the statement used against her what did they move for summary judgment they didn't know for summary judgment on either of these reasonable accommodation claims the judge however granted it to them anyway  if you look at the statement by go girl k guys or you can see that linda rowlands never threatened him that's appendix three twenty six he talks about the fact she had on her coat and she reached in the packet as she's leaving work she pulls out a little handheld taser says on december nineteenth roughly about nine forty five pm linda rowlands pulled out of her coat pocket a black teens are after zapping it a couple times she said this is so if anyone wants to mess with me while looking at me from about ten feet away then turned around and headed out of the building i felt totally threatened and went to management immediately exclamation mark she didn't threaten him she said basically nobody should mess with me when i go to my car part of the evidence is the case is what u k s did to basically torture this woman to get her to quit she had to park away from everyone clear out in an unsafe lot her car been broken into twice she's the only person that was not permitted to move it up on her but they left her out there alone they found vagrant sleeping in the vans and she's out there in the middle of the night because she had like injuries she had been injured repeatedly they wanted her go and you have to look at the group you guys are statement as his coworker said you have to look is a big guy he's a five foot eleven bodybuilder he's a bully he's intimidating he was fired once for finding this guy loves to throw a punch it's impossible to believe this five foot three fifty eight year old woman with bad knees wearing a meat brace limping so much her coworkers are calling gimpy it's impossible to believe he was threatened by her we don't just have his statement we have a statement by another coworker one of the drivers her quote was u p s believing this is will at best laughable at worst an outright lie no u p s manager could have taken any statement written by girl joe group and guys are claiming to be threatened by real ones with a straight face as pure comic relief they're probably still laughing these are coke workers that work with these people day in and day out of guys or himself violated this quote zero tolerance policy when steve harms the union rep went to him and said joe i can't believe you did this to linda you write of this statement you get her fired is williams versus bristol myers squibb that i mean it there's a question over the application of that promise and then you look at the weapons policy itself i noticed downstairs when i came in here today on the on the door you're building you have analogy if linda had been in the in the lunchroom and held up in the file that sharpened metal technically i guess they could have said oh that's a threat we can fire you for that i mean it has to be believable good guy who reported her of that then miraculously applies for her job it's kind of not really really for and that to the first claim mr rowlands when the judge said that the pleading was insufficient that was odd to u p s in two thousand and fourteen filed a motion to dismiss and they find that to clarify the pleadings and at that time on june thirteenth  action that's exhibit c attached the complaint they knew was there the court on the motion to dismiss said the attach the e e o c charges legit she suffered three injuries those injuries substantially  interfered with her ability to walk she doesn't have to submit evidence to prove her case at the state the proceedings she only has to allege facts of the excepted true state of plausible eighty including the facts asserted in the charges and incorporated by reference satisfy the u p s however i believe forgot exhibit c existed ms rowland's was deposed for two full days and not one question came her way vacuum maybe maybe this pleading isn't this succinct as it should be but i think it covers what what we need to cover u p s sighted person per could see silverstein and said rule ten isn't a license to play by exhibit i would agree with that in i did not your honor i didn't even work at my law firm but was it pro said no i don't believe so and i know i can tell from the filing someone from my doctor must have drafted it because i c tell that it was actually notarized by someone there i did not draft it the court raved raised the waiver argument of its own volition and that was troubling too because when linda was never questioned over these exhibits this one especially in two days i had to draft a thirty seven paragraph affidavit to submit to the trial court and it was all about her requests for a reasonable combination u p s never filed a motion to strike even one paragraph of that's thirty seven page or paragraph af t they didn't submit any affidavits to contradict to say no linda didn't request any accommodations she didn't ask to do the computer part of her or her data entry job to sit down were the restroom meet because it was swelling so badly and they said no linda jo gets to do that she asked if she could answer the phones no linda you can't do that can i be trying to drive the forklift no linda you can't do that can i use the downstairs bathroom i have a brace on my knee i can barely climb the stairs oh no linda that's for management interactive process is interactive process they didn't even meet her half way they didn't they didn't interact at all church are you saying that that's improper that's not what i'd say your honor what i'd say is that ten c does allow for the incorporation of an exhibit into a pleading but i would separate the allowance of facts dismiss the disability discrimination aspect of the of the case we did not want to dismiss a case a claim we did not know about which is a failure to a comedy claim now this court has found this to be different cause of action with different elements to them and so you could not read from a disability discrimination claim in a complaint that an individual was also seeking an accommodation those two types of discrimination has a different she she alleges in the c charge that she had tried to engage in the interactive process what's the interactive process meant to do and generally your honor the interactive process is meant for the individual and the employer to engage one another but if you're miss one who has to to determine whether the employee can do the job with or without a reasonable accommodation you're right what else do you need your reason to believe that that she had restrictions and u p s would have no reason to believe she had those restrictions given what her doctors note said she was able to perform the essential functions of her job there's no evidence indicating that she wasn't performing essential functions of the job or evidence that in some way whatever issues she may have believed to have had that those interfered with the essential functions of her job and you know i can speak to  specifically right this court has indicated in the proof you'll be city of chicago case the a t o does not require an employee to accommodate disabilities that have no bearing on an employee's ability to perform the essential functions of their job so where she whether or not she has any kind of limitations and her doctors that said she didn't where they aren't interfering at all with the essential functions of her position then there is no obligation to accommodate and there's no need but she's saying she has disability correct do you disagree with that i do disagree with it but i think that the just report also she had a neighbor a she was elevating and icing her leg and claiming that  had the inability to walk to lift and do all these things without some accommodation and that sort of disability i think the more important distinction is it relates to the need for the accommodation which there wasn't one but isn't that a jury question achieve would switch between a short and i'm sorry large and small brace she also indicates this is again in her decoration that she had she wore an ice pack that would fit into that brace that so she was she if she needed that accommodation she was apparently receiving it because she says she had it and she was doing her job until she got fired for threatening the court with a taser so you know right now if you let me stop you there isn't that really the nub of this case that she was fired because of the state's are correct absolute and isn't that doesn't that raise all kinds of contested facts it doesn't and this is why the the question for the to the district court and here is what are the what they had is an individual filing a written statement telling that someone had pointed a weapon at them activated that weapon and say this is so anyone if anyone messes with me the voice and tone what have you what he said is that he said he felt totally threatened and u p s has the right to take that on its face value we also have an admission this is at the time of the investigation right u p s conducted an investigation into this complaint and u p s in that investigation they took a written statement from him he said he felt quote totally threatened ms rowland's admitted to having a taser in the workplace a third coworker who was not mentioned earlier also submit a written statement as part of the investigation that individual indicated he had heard of misrule and activate the taser in the workplace close in time to the period of time when she threatened mr groping guys or so on whether she threatened him or not is disputed is says he didn't she didn't threaten him at all she was walking out the door to this dark parking lot this remote parking lot and basically had something that she thought she needed for protection she also says other people carry these things she also says other people carried other non lethal type of protection like pepper spray and mace and that sort of thing this isn't that at least to put to a jury to decide whether or not whether or not one the employer actually applied there no weapon policy to this type of device and to whether or not she actually threatened this guy or whether she was using it for her own s counsel took no depositions in the case to question that many way so there was no way for them to determine or question that determination stated firmly in the declaration but there's also in the record that other people had similar devices and they're not as quite as as was presented by counsel there isn't one individual miss men a few who indicated that she had a weapon and that's that she had this this mace and that but there's no there's no other specifics there are just general statements that people had knives and box cutters which are used in a workplace full of boxes to open include those boxes and then generic statements that some unknown persons had maced with them but there's no evidence no evidence whatsoever that managers knew about that that state those individuals that this decision make this case knew about that that those individuals ever threatened a coworker that those individuals ever activated or used those weapons in the workplace and i think that's a pretty significant distinction to be drawn had noted they were there was a failure to accommodate but again they it was under the combination heading and this court found that there was not reasonable notice  the defendants that the individual was actually something a failure to accommodate claim i don't know the way the the procedural history here just briefly because she spoke regarding this woman's deposition mr owens was asked during her deposition what are you complaining about in this lawsuit she never mentioned accommodation of any kind also on on the opportunity to rehabilitate her testimony she was not redirected to talk about accommodation with regard to the words accommodat acting as if there was no accommodation claim she was acting as if there was no accommodation claim into a summary judgment because there wasn't one it wasn't played in her complaint she didn't intend to proceed on one and she only realised contrary to all what you're saying go i don't believe that her accommodation claims should be successful at for both the failure i also it might be moot for the fact that in fact she was terminated there was no disability discrimination asked her terminations if she was terminated because she threatened a covert with the taser because the peers u p s made an investigation and made a reasonable determination that she had done so and that this court you know as  laboratory without having to hike the stairs they told her no sounds like management knew this lady was still hobbling around council your post council said you know everybody called again i would distinguish for someone who is regarded as disabled only individuals who are disabled and then pairing out with group health the individual needs to not be able to form an essential function the ice she received there's no one to play she also asked for the accommodation of having a shorter cord for the machine or whatever it was and they wouldn't give it to her and she ended up tripping over it because of her disability i believe she'd been killed she tripped over it previously but it didn't interfere with the performer the court lin in fear with the performance of the essential functions of her position she was able to scan patches successfully until her terminations again for threatening someone she was doing her job she was able to perform the functions you do you treat that threat as if it were an undisputed fact it's isn't it highly disputed whether or not the fact is disputed i would say is a secondary question to whether or not unitless at u p s was reasonable in relying would absolutely disagree your honor respectfully and that you p s is reasonable in what lying on these statements especially with something so serious as a weapons policy and and that there isn't a way around that and she hasn't  there any kind of a disciplinary hearing or anything what are being to do is there time somebody in management sat down and said look ask this fellow exactly how this confrontation took place with the taser she had an opportunity to explain why she had to taser why she discharged each of alternative there was an investigation and they submitted statements the individual who was threatened submit a statement saying he felt totally management knows your honor and she there's no evidence that management knew about that they knew about it when it was reported by someone by individual who she threatened and they're after they conducted their investigation and they're after they made their term claim but if not prevail on the retaliation claim what is there room for your client in this she's the justification for as long as the company has a good face belief that she violated the weapons policy isn't a game over even if she had it would not be her subjective intention really isn't very policy when they talk about we let them carry pocket knives but the testimony is they carried eight inch knives well they carry and in the testimony as other people had tasers in their purses they didn't know that's the difference now isn't it other persons may have had them in their purses they were concerned about travelling whole but she displayed it in the workplace actually destructive in the workplace as she's walked out the door she she didn't pointed at him as the defense said she just clicked it and said this is some nobody messes with me up the door that she admit that she brought that she ever pointed to that no no that she deny that she pointed exactly her statement was i've carried this for ten or fifteen years i'm scared to walk out there alone in the middle of the night but she discharged she she it's tiny she puts a battery in it every night to turn it and she did it every night can then i'm healthy said i can't believe they're complaining about this now she didn't make a secret of it she carried it for you so your view your characterization of the testimony is that she was testing ye absolutely he didn't say even in his statement he doesn't say she pointed it at him he said she held it up and clicked it said this is so nobody messes with me and turn around and walked out again i get back to is there a good fa what given his history given her history given given when her union rep tried to get her back and said no one's been fired over this nobody knows that you can't carry a taser and her boss said they've been on my butt constantly about her i'm not bringing her back well what i believe is that in there he said that yes ok because of her need they didn't have any record that she wasn't doing her job this was just a convenient way for them to get rid of a any place in writing defining what a weapon was not absolutely not it just says weapons are prohibited and they displayed as you do a handgun with a line through it canada and he said i have not i worked there for years i thought weapons were