particular i want to give the explanation required under cleveland and shows that a reasonable juror could be convinced both the truth of the good faith belief mr thompson had when he applied for social security high school the position he was there in it all but think created for him based on his experience and he understood the job he knew his physical condition he was out the because he had total right moving placement but he also had a series and a history of other why he told the social security administration and the company's a o p de insurer that he was totally disabled and now claims that he isn't totally disabled that's with you've explain it to a jury it would be that i could apply for both because i was ready to come back to work for the injury i had my name floyd had allowed me the five days i needed three business days to get the note from my and which cleared him to work i would have been back to work but when i lost that job i decided to apply for social security and the reason i applied for that is i had all these other injuries which i went to work with for years even treating with the doc the stouffer pain for seven or eight years he dragged himself around on these knees and the reason he went out and applied for social security was only because he was fired if he had to but is not one of them that none of that explains why he told the social security administration that that several months before he was fired fired that's not what he said and that's not what the s are saying fine and that's right in this case you run a falls right into what just right was talking about with cleveland he files because any social security attorney and i did not represent them and that would go back to the last day of employment which was that many a date in this is when i say it applies to cleveland is just as brian talked about disability changing over time that the effect of them changing and in that case this application had to do with his knee and there's no question his doctor kept them out for three months in fact that's not the basis on which and which social security found him disabled they found representation was on the application may the last day you were ok and not yes so the difficulty then is that's too early for purposes of you getting around to leave them unless you can somehow explain how you could be permanently disabled on may and yet under thievin he could somehow have been ready to go back to work i'm a again because on this case extra days to get to know that as approved said he could go back to work at that taken place that's all the employer or you wouldn't known that's all it would have happened instead he applied for unemployment and he didn't get on unemployment because of his name is dr he wouldn't go on long term you could tonight for other reasons because his doctor language he said he could go back to work on that date just for his knee what he did is when he applied these other long standing injuries that predated this and of which there's no evidence that between may and september on august it became any worse that those injuries my expectation is he could have put nearly a day that he could have gone out before this happened but that's the explanation is that he was not permanently disabled other he decided to go on social security at the age of just so i understand that you seem to be offering an explanation of why he decided to claim that he was permanently disabled on may th when he had previously made such a claim but i thought what you need to explain is why it would be consistent with the a b a claim to permit that to go forward and that seems hard to do if you're conceding that he represented he was permanently disabled at that time so i understand what explanation you're giving you're making a very practical one about why he suddenly chose to say he was apparently disabled on may th when prior to that he wouldn't have and i'm sure had he not been fired he wouldn't have made the request but having made it that does seem to a stop an argument that you could now find him to be that's the other part of our argument not you want but i do believe this these explanations and the distinctions between this and say no explain why he they are not inconsistent because his position is i'm sorry i think you were breaking up a little bit you may want to repeat your question for the attorney regress and secondly we are contending apart from physical and we think a big part of the social security this is in was psychological that the only consult the only consult was his whole life and testified before you did lee as to how significant it was to to him and the effect it had on them so we do contend that those two there were those two differences between the date of the discharge and the firing completion of the  people in this case he goes for making seventy three the nothing and you've got an obligation to represent them and they've got to make the allegations and i don't see where in the circumstances of this case where  unable to work on the other hand he's taken the exact opposite position in this litigation and has represented to the court that he could go back to his position a cool little big group he has not presented either in his peepers  explanation for how he can reconcile these two divergent what if what about the point he just raised with us that the firing put him over the edge psychologically and because of the lack of treatment during that period so that even though he suffered many of the same elements and with able to soldier on and go back to work as a may th but after the firing in light of the psychological effect of that and the lack of treatment when he went to get the benefit is he no longer within a position to do that why wouldn't that be a way of reconciling so few points in that your honor st he represented that he was completely disabled as a mate he didn't say some point after determination nd the psychological evaluation that he relies upon in that report of doctor and the doctor see it's that he's in fact psychological issues that he's experiencing flowed from his physical limitations and that's in the record it twenty two dollars or one hundred and twenty three dollars there's no connection in that report which is the only psychological evidence in the record that links his suppose it psychological issues with his determination instead there are linked by a doctor to his physical limitations so that just doesn't hold up and that's the argument that we just heard that he somehow wasn't able to get treatment months that is correct or out of the security administration found him to be disabled as of may two thousand and sixteen that was the day before he was going to go for knee replacement surgery and he was not let go until august of two thousand sixteen so there's many months in between and let's be clear when he record made his application to so security administration he did not make a one off statement that i am disabled as of x date he went into great detail on all of the various physical limitations caused by his hip and back problems and need problems he's claimed to be in such extreme pain that he couldn't sleep at night you say was unstable and couldn't put his pants on he said he couldn't even sit through a movie because he was so distracted by the pain he needed to  cane on a daily basis according to his own statements he could not have performed the functions of lots of different positions but certainly not his position at gold medal bakery which based on his own testimony the javascript reputation to social dear mr was a very physically demanding job that required him to lift and squat and climb over equipment and we'll climb stairs this is a difficult job and for him to represent on the one hand that he was completely disabled and then say no i actually could go back to work into this physically demanding job there's no way that he can reconcile those two statements and under cleveland and under claim i like to just briefly run through a few quick facts on that which with my brother touched on referee st gold medal had an attendance policy that mr thompson is aware of that specifically states that all employees who are out for more than he was fired for failing to follow that policy a policy that he was aware of that he was reminded about and which goal though even gave him a few extra days to secure a doctor's appointment to get that piece of paper he has asked not come forward with any evidence of pretext nothing to suggest that he was retaliated against for taking actually leave in fact the person who is supposedly the bad actor here who supposedly have until retaliatory animists is actually the person who policy adopted policy to allow him a set period of time there's nothing inconsistent in the after all a with having such a policy and although there was no positive policy here the company did give him a few extra days when he was still on evil to get the necessary doctors know and there's certainly no suggestion that the company well there's no evidence in the record that the company of a climate policy inconsistently or we don't know whether he was going to be able to get the dispute get the know if he if he got even have those after a couple days he actually didn't provide the team the doctors know until i believe it was october and so it's unclear from the record whether he would have been able to provide that know even if he got the extra couple days that he asked for it and what about him the repetitions in the record that actually under the company policy he was entitled to even more weeks because he had worked there for twenty five years so your honor those are those assertions reflect a prior policy of goal not all i'm not i'm not the policy that was in effect at the time of mr thompson suggestion in the record that even if there was other policy out there that it was applied to mr thomson differently than it had been applied to other similar situation poor but together is if he was entitle that the twenty five year old long employee under company policy to stay longer than he and the f m l a incorporates or defers to company policies that let you stay past that time if both of those things are true i took his argument to be that terminating him because he hadn't met that deadline under the f m l a doesn't make a whole lot of them and therefore arguably supports the conclusion that the only reason they relied on the  that a jury question what part well what policy within in the fact that time or not i mean isn't that just a fact which is if he's right about that and could a jury find he's right about that about what policy was in place he has to provide an evidentiary basis for that assertion and don't that under the company policy that wasn't a problem and to be reasonable for a jury then conclude that their explanation for why they fired him doesn't hold up and therefore they could conclude it was pretextual so that might be possibl the requirement that he provided fitness for duty form i don't believe there is any suggestion in the record that he ever requested this additional time off and as you said before you don't believe he's establishing evidence or basis for the existence of the whole city and your honor you don't need to wade into the issue of what standard of causation is appropriate under the ethical a in order to decide this case we didn't argue below and continue to believe that mr thompson did not establish causation he's only evidence of causation that he or to kill aided was the timing of his terminations a relative to the end of his leave in effect saying it was so close in time to the end of his leave that you can infer causation we argue baloney continue to believe that in the context of ethanol a that sort of temporal proximity is completely inappropriate because if you were to adopt that argument then every time someone was terminated shortly after the end of an atom lately including for doing things like two is a payroll change form signed by christina my case my client testified in miss my case that's the fight that seek she told him about the twenty five week employment when they met in  april for his leave so that is whether or not the policy existed in some dispute about whether it ended in may of sixteen or april or after there's no question that he was relying on it that he had been told at the meeting if that was the policy that that's the time he had and she filed the payroll change form that day april th on with the company indicating that he would have twenty five weeks opposition on the  about them in any further went on and said well i consider him for a brief no more than a week or so months that i need another week they repeal something i consider it otherwise gone and that he wouldn't consider it for anyone so we believe that thank you mr i have one just question just what i understand how this works is that this is reference to something you allude to i think in your argument and i'm just trying to understand how after cleveland you know person and mr thompson situation is supposed to different reasons for their finding little disability in social security which is consistent i believe in this case with making the point that he was out on a very limited figure which bed and if the employer the explanation is if they had allowed me back i would have been back and i wouldn't apply for social security i only had to do it because they put me in this position thank you thank you