judges counsel for appellate if you have reserved or wish you had remembered to reserve time for rebuttal please tell us that at the outset of your argument because it helps us to keep track as well to make all the first case phobia of children received some sensational attention and ridicule frankly in the press and by members of the administration for rapidly but really this is a classic employment discrimination case involves a situation where there was  evidence that my client's disability was used against her in a way to constructively just charger and ultimately replace her with a younger worker and it really for purposes of this appeal and why we're here it goes down to basic summary judgment law and several errors by the court including repeated occasions where the trial court made factual assumptions that were not in evidence ignored evidence that created material issues of fact and repeatedly viewed evidence in the light most favorable to the moving party instead of the nonmoving part and there are several examples of that regarding the americans with disability claims for example the court ignored evidence and viewed it in the light most favorable of moving party in making a determination that my client did not ask for an accommodation first of all there was evidence in the record that since one thousand nine hundred seventy there was an accommodation in place for my client was not to teach below the high school level and indeed that had happened up until she was transferred to the junior high without any seeking any input from her and that was completely ignored well i mean they eliminated the french teacher position right because that that is correct they did and that was another example of one of the examples of how the trial court improperly took that full value was eliminated and then they transferred her to the middle school right that's correct and obviously that's part of what you're complaining about but the a t f does not require the employer to terminate another employee in order to accommodate the person with a disability and they already had a spanish teacher well actually they did they had  my point was that when the evidence was viewed as a whole that is certainly one explanation and the jury should have been allowed to the jury to make that determination but we're talking about my client who was a native speaker of spanish senior i'm sorry i know just to finish the point i guess i mean it seems like you're running into a hard obstacle in the act here which is there's no liability if the accommodation have required the school to displace another employee and it just doesn't matter about her prior you know arrangement or whether  just kind of you can't get past that well unless i'm missing something about the facts of the case i think you are and in fact one of the pieces of evidence that was ignored was my client had seen on mary months website an retirement for a spanish teacher and she took that to her principal and said i think you let me stay at high school for her spanish teacher he said no it's already been decided for you so that is one example of a request for an accommodation that was honored and again after she'd been transferred to middle school she is again asked in writing to be transferred back it was put on hold and she was constructively discharged for the reasons i discussed but what we're talking about here is the senior teacher in the district a native speaker spanish they didn't accommodate her they didn't ask or didn't ask her for input at any time and the evidence as a whole shows that she was moved down they knew about her disability they discussed it they didn't ask her the court made its own finding that well what a younger person was in fact there was never any expert testimony what younger children were she was transferred to middle school it caused her distress there was evidence of her blood pressure they knew about it in fact plenty of the emails that we discussed as evidence of the hostile work environment were ridiculing her corner crazy she would ever request time off to the doctor for because of high blood pressure they would make snide comments about well must have been too much for general attitude of hostility and using an example of using her disability putting her situation where she was very uncomfortable to ultimately she it was a foregone conclusion that this was done and i asked dr reiner well did you ever consider you know would you consider taking back the high school i don't know was never an option and the totality of all this evidence is so now i'm talking about what the trier of fact could look at it and should have been able to look at this and determine what inference they were going to from the evidence whether they believe the school that hey we reshot positions we didn't really have a place for her you know we offered a position but you know she just resigned and we were surprised or you could look at the evidence and say you've got your senior teacher in the district they don't get input from or they know about her disability they transfer her down to middle school they know she's having blood pressure issues no she's having problems requested to stay she requested a comeback and ultimately  resigns even though she had enough sick days she could have if she had hoped that there would have been more she could have you sick time but instead they constructively discharged her temporarily replaced or position with someone who was  over forty but then got rid of them and permanently replaced with a younger person well i mean on that point can you cite any authority for the proposition that if an older worker is replaced by another older worker who is then replaced by a younger worker but the first older worker can and can bring suit under an age discrimination claim even though she wasn't replaced by work i would is there any case that you can point us to i'm aware of a new case this is that and i'm also aware in no case has been brought to my attention to the contrary and that's why i believe that this attitude self says they have to be replaced by a younger worker which would seem itself to be to the contrary it's why i believe it was an issue of fact for the jury to determine the motive here the trial court why the mood of the matter if he was replaced by a younger worker it matters because there was a temporary replacement used to circumvent the statute and that is why i believe that that is a factual issue let's try a factual should listen to all these facts and determine is it a fact that when she was replaced it was mid year she was replied now that the begetter what well when she was replaced when she retired she retired there were a few months to go but that's not the worker you're complaining about the replacement now that person that gentleman was over fifteen then his contract wasn't renewed they got rid of him and then put in a woman in her twenty's who is not a native speaker and less qualified and earning less money i believe there's a case there and it's not appropriate matters of motive and why things are done in the case law cited in my brief that's typically not appropriate for summary education that's why i believe this should proceed to a jury the jury should decide what all this means they could believe the justification provided by a police certainly but you can also draw an equally reasonable inference from the evidence that well this really does look like you know about her disability broken accommodation moved her down there factually different and i think when you look at all the facts here you can draw certainly more than one reasonable inference from the evidence and one of them is discrimination and just briefly there were also claims we had on a remote to dismiss some breach of contract and i would submit that there was certainly enough evidence in the record on those claims that there was an agreement and cond school and then thirteen years of conduct in accordance with  what you tell me we're in the record that was that the way i remembered that the letters and you tell me where in the record that letter is that letter was attached to several depositions it was and it may have been even part of my client's deposition as well ok thank you very much thank you volume one of her deposition and in that letter there is a note by her counsel to mr harris this is after she's already not being required to teach forty five minutes a day to the primary school students there's a note in which she indicates my client has indicated that she suffers from a mental disorder that is extremely ass abated when she must work with young children her present job assignment poses no problem since she works with teenagers and then her doctor dr friedman she's treated since the early ninety's started off the process by sending a letter to the then superintendent  jerry harris and she he she indicates she being dr friedman currently miss walther is stuffing with an issue of infertility and her desire for a child this subject produces much distress for miss walther she has not yet reconciled this issue and remains very upset when around babies or small children so the issue in one nine hundred ninety seven was whether miss walther could was physically able to teach in a richmond program to the primary school she submitted letters from her attorney she submitted a report from her doctor and as a result of that she was not transferred to teach part of her day in the primary school level at no time during her entire career mary mind did she assume met any letter or report from a doctor which indicated that she could not teach seventh or eighth graders letter to which your own for is that it is his council's understanding  and hers that she would not be expected to teach below the high school level was there any response ever to that no there was never a response to that and since these are you know this was a letter dealing with a medical condition he's letters were not exchanged among the faculty from one nine hundred ninety seven through two thousand and eleven and and this is a case where the french program was being phased out she was notified in february of two thousand and nine that the french program was being phased out but then she would be assigned one and a half school years from then to bring spanish to the seventh and eighth graders they had not had spanish program in the junior high for almost three decades so that from february of two thousand and nine till she retires at no time did miss walther as accommodation based on any phobia of children any medical condition or to accommodate a disability instead the evidence in the record indicates her enthusiasm for bringing this program to the seventh and eighth grade a i mean she was communicating with her junior high principal for a year and a half before this happened in no time did she say i have a phobia and i cannot teach seventh and eighth graders at no time did she tell the superintendent i cannot teach seventh and eighth graders at no time when she was there the during when she talked the fall did she say i cannot teach seventh and eighth graders instead she talks about the success of her program the difficulties in that fall because students had had no exposure to this language until she said she was there with them for the first time as a seven as a seventh grader an eighth grader and bragging about her achievements so this request of that somehow an accommodation was denied there was no accommodation and if we really wanted to get rid of her because of her age or disability there's no evidence of that in the record and why didn't we get rid of her  two thousand and nine when the students voted with their feet and no longer took french and none of that's in the record where you just said well you know that the idea that the students left voted with their feet because they didn't like her honor and is that the program numbers were dwindling and as a result of that they created a new program for her in the junior high which had not been there for three months and there was no indication that she could not physically teach this program and if she truly could not teach this program then it was up to her she has the initial burden to request an accommodation and she did not do so even though at the time she was still treating with dr friedman and dr freeman could easily have written a note indicating that at this time it's my professional opinion that she can also not teach seventh and eighth graders that never happened in this case and there was no indication that  miss walther willard ever shared any medical conditions or concerns about teaching seventh and eighth graders to the superintendent who was in charge of transferring teachers between buildings to her prior building principal d or to her then super supervisor dr caney with whom she said she got along very well with she had no disagreements she retired as a teacher with tenure no one forced her out of the building and so even beyond the issue as far as age discrimination about not being replaced by a younger person she was not subject to any form of an adverse employment action she left on her own accord she left with thirty five years of retirement credit and she left a position working for a principal with whom she got along well and had been in constant communication about her expectations for this new program since february of two thousand and nine as far as the hostile environment claim is concerned there was no evidence in the record of any disparaging comments regarding miss willard based on her age or disability during these meetings that she had with any of her supervisors this is a one time disagreement that she had with the superintendent imhoff in two thousand and nine in no time did she veil or self of any any of the school's harassment procedures even though she was tested on these and had to sign acknowledgement yearly he did never disciplined her her never had any physical interaction with her and the only other time since december of two thousand and nine that she had any involvement with superintendent is when she sent a  request and part of her request was not for a mid year transfer but a transfer of for the two thousand and eleven to think i mean the two thousand and seven school year when she said that she would like to be returned to the high school miss willard has admitted that when she made that request she was not asking to be transferred immediately to the to the high school she was asking for the next school year she also testified that at the time the request was made she understood that staffing decisions it was too early for staffing decisions and those were usually usually took place in the late spring early summer there's been no contrary evidence to suggest when she's already retired i think that she made mention i think those are the ones you do as you were referring about the fact that there was an e mail which she said at the graduation she was flying over in a plane and she could see everybody but there  no evidence and that she wasn't even copied on these e mails so there's no hostile interaction between her and any of her coworkers any of her supervisors and in fact ms willer indicated her deposition the only allegedly offensive or hostile interaction that she suffered at marymount was when she had that meeting with dr imhoff on december eighteenth two thousand and nine didn't complain about anybody didn't result in her suffering any type  of monetary damage and she really had no nothing nothing offensive happened to her at that time so she retired on her own accord we have no doubt constructive discharge we have no hostile environment and we have an employee who taught thirty five years at the school retired on her own accord and was subjected to no illegal conduct by marymount and based on that we asked for a  thank you your honors i think that mr smith's argument is kind of help to further reinforce the point i was trying to make in that we're talking about issues of facts and there are many facts and different versions an inference is it can be draw from the evidence sufficiency is the evidence though is not a matter for the trial court to decide it was improper for the trial court to decide an example the counter with mr imhoff this is an example where the trial court adopted the moving party's version and ignored my client's words my client said it was a very heated exchange he took her into a room scream matters spit flew he threatened to punish sure she never spoke out again she left the room was sick live in terror after that his version well it really wasn't that bad i don't remember it like that in the court adopted that and ignored my client's words and that's a material issue a fact of those e mails she was not at the time but this is all evidence of an undercurrent of hostility towards her and i think will work well she may not have been directly aware of it but clearly that  well because there are some of those e mails were she was called into the office she maria's update she's in the bathroom hyperventilating she's lucky she has a job she was physically being affected there was evidence of an undercurrent of hostility here that segue  were the evidence the court overlooked probably the biggest part of the evidence as to a hostile work environment and that was the fact that transferring her to work around younger children when they knew about her condition and they knew about it they discussed it before they transferred it there they asked her no did they ask any of the doctors including her own doctor that confirmed she had the condition back in ninety seven no they didn't it was a foregone conclusion and that's what the evidence shows that the court also for example made its own findings of what is younger while that's just we're talking about an issue that never even was addressed by the experts but the combination of the agreement as far as my client understood was i'm not going to teach bill high school  uniform agreement on what younger men though it was never discussed or part of the conversation it's one of those red herrings and the court just said well should be clear because they're not young well retirement mr price at this one now we're talking about what constitutes a younger child being around and working around your children the court said well the on the face the documents don't preclude her from working with middle school children want the whole context of the prior conversation and the reason she got the accommodation was she was asked to teach an elementary setting but it doesn't exclude or provide a certain age range they're just making an inference and difficult at the time she was transferred to teach in the junior high school did she specifically put the administration on notice that she could not teach these children she did not try to stay at the high school but she from her perspective he did not put them on notice that her be extended to junior high school children we put on notice again of the accommodation that was already in place she put them as i understand the facts she made it clear that she could not teach elementary school children that she had a medical mother mental problem dealing with children of that age is that correct well that was the context but it was never really discussed in the record and never came out what was the experts never discussed what a younger person was the accommodation as far she understood it was we're not going to teach her the high school to which you need some evidence that there was actually a concrete explanation to the people you accuse of the discrimination that she couldn't teach in junior high school in order to claim that they were discriminating against her by making her teaching high school i'm not aware of any continuing duty to put someone  notice or something they're already on notice of the existence of an existing accommodation