deviations from the lower court's decision from the federal court standards decision making standards which are required to be followed on summary judgment in all atrocities and not a particular order because i think each of them are concerning the first and that all addresses the lower courts opting to rely principly on a fact not of record to the effect that mr reverend probably pretties attendance made him attendance was the central function of the job or context was not something that mr belcher argued because it's not something that has school corporation would contend because as we showed there were naing to the thirty six witness again that struck at number three seventy two there were approximately one hundred and forty leaves virtually unrestricted leaves ranging in size from seventy days  to over two years time to the white and lawyers and the district court did not even acknowledge the district court decision not even enough the the fact it was bound construe most favorably to mr predator some of those facts include it that he was left in the classroom for some three months after clancy principal clancy determined that he was so toxic to the in the educational environment of the his students that he had to be removed no mention was made in district court decision that there was no remediation necessary for any of the students in his this the next thing that needs to be addressed i believe by this court and highlighted in the lower court's faulty decision making process is that there is no pretext analysis the thirty three six witness the clue elementary school teacher ever at the first comic con schools in the last ten years that the eight issues we asked her specify what was it that was complained about my parents what was repeatedly complained about she said she had no evidence at all so she acknowledged that there was no substantial basis for any of the rationales offered except for the attendance issue and the attendance issue is where we showed there was  treatment with regard to hundreds and hundreds of similar situated white colleagues in the elementary schools of particles in the county now it's interesting to note the the school system left him in the classroom for months on end not after they allegedly determined after clancy allegedly determined he was toxic to the children's learning environment now what else do we see in this decision that was a problem that shows that it was perhaps freelance ad hoc haphazard kind of random decision is not only did the lower court adopt its own version of the facts that tenants like all the white elementary school teachers for mr prodi was an essential function a job that could not be accommodated by the use of substitute teachers the lower court and she extended the court extended the discovery of lines to september eighteenth but the court then disregarded its own law the case saying oh well just because you file the motion for summary judgment a month late and we're not going to pay any attention to that we're going to allow you to provide a summary judgment motion which in this case is important because mr pretty reverend pretty has undergone a substantial health and that concern has resulted in his having to have a transplant he would have been entitled to the disbelief insurance proceeds that would have been available to him had the school district which was the his taking the time off he could have had he not been told he was going to be terminated for taking leave time sensibly apply for family medical leave after that  after that fifteen days after he came at because it was an obviously cute serious most serious medical condition but when the the decision maker in this put time place clancy says you're things up earlier well i can't address pairs of the court before they are an and that's why we are addressing them to this court and i would also suggest that  any interference claim if he never provided sufficient notice of his intent to take he doesn't his own deposition testimony says he did not do that he was asked specifically if you ever requested death emeli if he said  there was testimony from dr clancy that after mr prodi used up his eighteen contract days of paid vacation that she had a conversation with him that he could apply for f n l lately she told him what the application process was she gave him the name of the person within the school corporation to go talk to to apply for ethanol leave and he chose not to do that so how can we have interfered with his f claim if he voluntarily chose not to apply for work with all due respect your honor i don't think that the reason that the reason that he chose not to apply isn't the fact that he chose not to apply is important if he would have applied we'd be here with a different set of facts but he chose not to and he was well aware of what the f m l a provided for his own deposition testimony indicates that you know that  prior employment position he had was a manager of a company and in that capacity he dealt with that by mel lately so he had personal knowledge of it the school corporation reminded him of it told him that he would not get any more he never requested time off to attend his disability the reasons why he didn't do it do not relate to this problem we face a case that he must prove to survive some rejection and so under the interference claim illiberal being taken by the school corporation from students from student teachers specifically and all address that obviously it's important that that a future have adequate lesson plans in place whether he knows that he's going to be off of work or not and probably even more important if he to plan ahead so that if he is going to be unexpectedly off of work the student teacher who was then called at the last minute to come in substitute for him would know where the classroom is and know where the lessons plans are and would be able to take over the class well he had a problem right off the bat lesson plans the school put in a plan of action for him to improve and he failed to improve in spite of that plan of action he didn't even follow up with the two mentors that the school put in place for him to mentor him to help him with his deficiencies he talked to one but he didn't reach out and talk to the other one and the one you talk to is on with temporarily so he didn't improve in spite of the school wanting him to improve giving him ammunition to improve so the real reason that he was terminated they were like six of them but it centers around his job performance that had the evidence is undisputed that he couldn't perform the essential functions of his job in spite of the fact that we implemented the plan of action to help him prove there was no evidence to the contrary that he was able to perform so well as the district court s he can proceed with his retaliation claim under either the direct method of proof or the indirect method we've discussed both of those in our brief  i would just ask the court to review mr prey's deposition testimony in these regards fortunately what lawyers say really isn't evidence and what's important is what mr prodi said and what the witnesses have said and that is there is no evidence anywhere in the record that race had anything to do with any of these decisions mr pretty himself in his affidavit and his deposition testimony offered no evidence that race played any role in th court or in the school's decision that he couldn't perform the essential functions of his job and that his contract needed to be not new contrary to that you haven't seen as mr soros already mentioned a school put in a plan of action to help him progress and it just didn't work out that way and i think that the district court's conclusion is probably the most accurate assessment of the situation is unfortunate that it didn't work out with the courts not super h r department personnel decision makers that the school can make its own advisement kornel stand in recess