one whether the district court erred by granting summary judgment in favor of the defendant finding that the i e d claim is time barred when there is in actuality a dispute of material facts surrounding the appellant insanity tolling argument and number two whether the district court erred in granting summary judgment to the defendant on the i e d claim by finding that the claim lacked outrageous conduct when there was enough evidence when combining the defendant's actions together with summary judgment is appropriate when there exists no genuine issue as to any material fact and we contend that there were certainly issues of material fact in this case genuine issues the credibility is something for the the jury to determine but in this case the inferences should have been toward the nonmoving party now with respect to the tolling argument the record contains an m r i revealing that the appellant had four lesions on his brain as a result of a traumatic brain injury was there expert testimony that you submit to or the counsel below submitted that showed that the lesions on the brain are raised an inference that your client was insane during  relevant period of time i know your honor there was not expert testimony but the lower court counsel did stand on the the m r i that was part of the record and can be found in excerpts of record on page three thirty two my client had an m r i revealing that the relations on his brain the fact that in sworn testimony in both the deposition and later in an affidavit he testified that he was incapable of caring for himself or his affairs after his constructive terminations but one thing he conducting all kinds of things to continue carrying on his affairs was any negotiating his severance package rejecting the offered package resigned looking for a new job wasn't there a whole lot of other things he was doing during this time period we honor's it's my understanding from the record that that he was doing that prior to his terminations but when he was terminated or when he did finish with valiant it was at that point that this incapacity began according to the testimony according to the medical evidence provided that the statute of limitations as pertains to the statue of limitations the insanity didn't manifest until august fifth two thousand thirteen so what works what is the evidence other than his saying you know i couldn't conduct my affairs what is the evidence that shows for example on aug fifth or aug sixth your client was insane in the li most favorable to him other than him saying i couldn't manage my affairs or your honor and that's that's why really i'm underscoring this m r i because we don't just have an appellant who is simply a party who is simply saying i'm stressed out and expressed in the cases actually requires only some mental condition which renders the plaintiff incapable so when we look at the definition of insanity we're just time the standard is somewhat low in that we only need some mental condition  believe that that mental condition was shown and had this gone to a jury there be more evidence there probably would have been expert testimony there would have been credibility determinations to be made but just on its face which with the district court had in front of them there was enough to say that there was a genuine issue of material fact and that's our argument comes so you're not counsel below i was not your honor so i mean basically this came up after there was a motion made and somebody figured out maybe they filed this complain one day too late or your honor that is certainly probably the argument that responded with me and i can understand the court's skepticism and perhaps the district court's skepticism but we have a an appellant that has multiple sclerosis right diagnosis that has some significant health issues and that goes to the second issue about an eggshell plaintiffs that the lower court didn't consider how grievous their respon entire course of conduct was against the appellant in light of his more fragile emotional state that does apply here and that the court didn't take into consideration the testimony from my client that his supervisor was aware of this illness and in getting directly  to answer your question your honor the statute of limitations if there was not enough evidence to make that inference there we have here an m r i we have here testimony from my client we have some very significant allegations that were made by my client that he supported with evidence about what this employee who we are going to is functioning as an employee or employer and making these threats about blood sport about finding it funny somebody committed suicide by client was submitted was subjected to all this this hostile environment that coupled with the m r i that coupled with the brain injury that resulted from the m r i for lesions on one's brain is not something to take lightly i understand so didn't the lower court find that it was on that day that he was managing his affairs he was negotiating his severance packages he was rejecting the offered package didn't that happen on that date and that's why that that this statute is not being told isn't isn't that what the crux of this is and we would argue that the lower court for too high of a burden on my client based on the standard again the standard being only some mental condition that my client did testify and did talk about his multiple there very now says that you're doing the very discussion that you're bringing forth are is a discussion of the issues and the argument here is that that discussion of issues should have been before a jury that credibility should've been taken into consideration  package and yes my client perhaps you know declined it but he believes he did make the right decision by the client because he felt like it was a hostile work environment and that they were trying to essentially get him to take this buy and  him waving his right he's making that decision on the exact day you say he was incapacitated well and i think that being that we're not medical experts right we're not equipped necessarily to make that determination of of incapacitation that's why dad should have gone to a jury well i mean one could say that's why you're you're the you're co counsel your counsel below needed to prove that evidence to the district judge incapacity that he was dealing with the fact that the metal conditions were intertwined with his mental and emotional breakdown that persisted because we believe that the record would show that you know yes we there was a severance agreement that was turned down but there's nothing saying that later that day he couldn't have been shambles and unable to care for himself and unable to make any decisions on his own and and their leaders didn't save mine save five men yes your honor thank you preserve the rest of  three thirty two and three thirty three there's testimony from mr weinberg saying that at some point after he rejected the severance offer from valiant and likely in conjunction with the time where he's trying to pursue a federal  disability benefits claim he makes note of the fact that he had had an m r i and that m r i showed certain lesions on his brain but when pressed and in the record when pressed in testimony he was asked did multiple sclerosis multiple sclerosis since two thousand and nine he has had at least eight or nine employers between two thousand and nine and this time joining dalliance in two thousand and thirteen and when asked if any medical provider had connected his lesions with this time of valiant five or did they exist at the time he said nobody ever wrote it down and he couldn't he couldn't make the connection and that's the evidence of the record  i at some point after his separation from valiant but as somebody who has multiple sclerosis the fact that he may have a lesion on his brain that that is not synonymous with saying that he was insane within the meaning well enough to the extent that he was one of the few people within i t that there was discussion that perhaps he could although his scottsdale site was going to shut down perhaps he could come to new jersey and work from new jersey there's nothing in the record there's nothing  record showing this m r i showing the lesions on the brain all we have is his testimony regarding lesions he opted not to present that evidence and more importantly there's nothing suggesting that the lesions rendered him incapacity even after during even after his separation from valiant he was pursuing a disability a federal disability claim for disability benefits the employee was in a coma for twelve days so there is the news there does in fact need to be something more than just some condition the person who's seeking to apply the twenty argument needs to actually be incapacitated and unable to deal with deal with their affairs to understand legal consequences of action and thus there's there's no evidence of that here to establish the benefit of that the limitations of courage to be told that was mr weinberg burden to present evidence to that valley and presented evidence that on august fifth he showed up for work and in fact on august fourth he wrote a dramatically great well formatted multi paragraph email explaining why he didn't want to relocate to the east coast the site because his site was shutting down he gave an explanation for that and in that e mail he i think you'll be in the best interest of valiant and the best just interested myself that i have a term that i and employment on the six and that value give me three months severance and the response from h r on the fourth goes well we'll show you the severance agreements that we have and on the fifth at his request the company met with him so had a workplace meeting on the fifth he had she says that he reviewed the severance agreement in the seventh package the materials that went with the actual agreement and he testified  t he rejected the seventh agreement and he testified i rejected the severance agreement because i understood they would require me to waive it would be require me to waive my rights so this isn't even just a matter of being overwhelmed by a document he made the conscious decision that this would have required it was a release severance in exchange for release and he understood that and then on august fifth you have the wherewithal to then go back to his computer workstation and type an e mail to his boss  of it was there something more to the fact that your why would anybody reject severance there i reject it because he was being asked to waive his rights which were church other than the fact that his lawsuit was filed a day too late he was going to be shutting down on the sort of long wind and somebody because he was an i t in because he was a valuable employee of the severance agreement that was presented to him was not on the give me three months and i'll walk on on the weinberg because he had known that this shutdown was coming in to why he interviewed he interviewed for other employment and he received an offer from another company and related to valley and called data shield so he had this offer in hand on august fourth when he sent the e mail saying hey i propose that we end it on august sixth give me some severance and and i go on my way here he had a job offer so i think staying until october would have as to why why would anybody reject money on the table in an accident despite the fact that doesn't solve the waiver of rights as most releases different feelings about one may have been stresses that one may have it can take it to the next level and had he not been an actual plaintiff and had he simply been someone that was experiencing stress and financial strain that would be one thing but he has this condition and that has to be taken into account and it's our position that the district court really didn't take that into account or kind of devalued or minimized that condition and that condition alone we believe coupled with the hostility that he experienced and his testimony about now not having a job he just had a second child having no health insurance and having to pay for cobra the dire financial situation all coupled with the hostility that he was experiencing at the workplace which i believe there's there's significant evidence to support that all would lead to the conclusion that there was a genuine issue of material fact that had to proceed to trial there would have been expert testimony there would have been an additional credibility determinations to be made because unfortunately we can't make that now we my client is not here he can't testify that opportunity was not provided to him and he did explain in depth in his deposition and his opportunity all of the very difficult strain that he was going through coupled with the mass and  testimony that there was there was not the opportunity for the trial judge to determine his credibility and determine whether he was telling the truth of what his motivation was or whether he was just doing this because they missed the statute by day the role of the lower court was to take all take his testimony essentially as true and supported by his his reasoning that he provided and to really determine whether or not there was a genuine issue of material fact we believe that there was believe also that the briefing satisfies the second issue that was brought before this court about the outrageous conduct and there's plenty of case law and examples of the employer