rebuttal here as the district court erred in allowing this case to go to the jury and in awarding nearly four hundred fifty thousand dollars in attorney's fees to intervene our councils intervene or point of counsel for the reasons that i'll discuss here today and as briefed and charging party on the actions of prosecuted this case from the outset miss ak and as we all know used to work for dollar general as cashier during a loss prevention audit of her store she and two of her coworkers each admitted to violating a policy the dollar general has against taking any of its product without first paying for it even if you later pay for it you have to pay first all three of those individuals were terminated very briefly there are three independent bases  reversal of course judgment below i'll discuss each more fully time permitting first the underlying charge in which the entire case rests was untimely it was to be filed not within three hundred days as alleged by the plaintiffs but within  and they do have authority to grant relief for this type of discrimination you know it seems funny to me even if you're right hypothetically about one way of proving discrimination why do we have to worry about it i mean it ask whether there's authority to grant or seek relief and that undeniably is true in this case they could have granted relief in this case your honor on the point that the statute first there's mention the  baseline is that a charge under this section shall be filed within a hundred eighty days there is an exception for the three hundred days but the charge shall be filed within one hundred eighty days after the alleged unlawful employment practice occurred unless in any case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with the state or local agency not just with authority to grant or seek relief but with authority to grant or seek relief from such practice the practice that is challenge here is that ms act in says that she was not reasonably accommodated under the a d f a that there's also a pure disability firing which which is also go to the senate you can go to tennessee and get relief for that but that's not the theory that they pursued at trial but the theory they pursue to trial is that her discriminatory discharge claim is premised on the on the notion that had she accommodated then she would not engage in the conduct that led to her discharge they specifically disclaimed that anybody had any bias against her because of disability so to me the analogy is in discrimination law you can have intentional discrimination and then you have disparate impact there is of discrimination when you ask a question is there authority to grant or seek relief you don't ask how many paths did they allow you to get to the conclusion of disability discrimination accommodation is just one path of getting the not the only one but it's one and the quote the point is they have this authority and you don't ask yourself do they recognize disparate impact discrimination you ask yourself can they provide relief or discrimination and it makes perfect sense to me even if it's true that only one of their paths is recognized you still want them to do this and the reason you want them to go down this road is they may fix the problem that's good that's what exhaustions about and you're on to the distinction i would ask to be drawn here is that the tennessee human rights act and tennessee disability act in particular it does not have and never has had the concept of reasonable accommodation the fact that i buy words by words when you have a you know you don't have a tennessee supreme court decision you go to federal court decision in tennessee lower discrimination is that that individual should be treated equally without regard to a protected category here the a t a i went one step further and imposed an affirmative obligation to take steps not just treat those with disabilities equal but to engage in this concept known as reasonable accommodation which does not equate sure you're wrong often quite sure you're wrong about that eighty eight comes along in one thousand nine hundred every state in the country had anti discrimination laws and i'm highly confident many of them had requirements of reasonable accommodation hundred seem a not of been one of them and that's the heart of your argument but it just doesn't make sense to me when they say the authority to grander seek relief it doesn't say the authority to grant or seek relief under this or that theory well it does say authority to grant or seek relief from such practice and the notion of employment practices it's a fact is something that he lacks this is a firing at the practice is a firing it's a it's a hiring it's promotion it's a reasonable accommodation these are things in fact this is does not in our brief that even the e e o c when it on its own website notes what it considers to be unlawful employment practices it has a whitney of things that it considers practices that include hiring promotion and reasonable accommodation as a separate and distinct employment practice and so with tennessee not recognizing the concept of risk but here there was a firing i fire ring that the plaintiffs contend resulted from the failure to accommodate you know but if there's a fire and tennessee will give you relief for being fired based on disability discrimination that actually leads to the second independent basis for this this case to be  reversed and that is that the plaintiffs specifically disclaimed a disparate treatment theory at trial by conceding that they were not accusing dollar general of harboring any bias against mr miss ekins diabetes the court nonetheless allow the claim to go to the jury and in a manner that allow the jury to find for the point is even in the absence of a finding of discriminatory motive finally even if this akon charge of untimely where you where you were is that coming from i mean you don't have to i don't know any theory of discrimination required animists and the whole point of the a da is deal with the problem that there's a lot of quote innocent discrimination against the disabled so i guess i'm just puzzled by that i realize that is a sufficient grounds for getting relief but i never thought of it as a necessary one well and i believe it is your honor in fact there are cases decided by myself and by judge kohl that addressed this point  and goal vs with only a public school district being one of them which notes the americans with disabilities act requires the pointed to present sufficiently significant evidence of animist toward the disabled that is a but for cause of the discriminatory behavior i mean listen i'll go read it and if you want me to i will but i'll tell you what i think it's going to say what the law says and you tell me whether you still want me to read it because of right that's the question because of the disability that doesn't prove you have to have animist towards the disabled in other words someone the can't get into a building because there's no ramp to prove discrimination when you fire them because they can't get into the building you don't have to show you don't like the disabled you have to show you knew they had a disability and you fired the because the disability all right you could have a innocent state of mind on every other thing and if you if you want to keep i'll read it but i will not be overjoyed if when i read it i learn that what i'm saying is accurate your honor i would be remiss if i were to tell you to read it or not to read it but i would submit that the distinction here that does not require you to read the opinion is that miss x does not say that she was discharged because of her disability she says she was discharged because her disability was not accommodated it's because of the notion that she was not accommodate it that she was discharged and here the third independent basis for the reversal of the judgement is the low blood sugar she needed to ingest glucose in some form and that they were equally equally effective that included glucose tablets which most africans own and in fact carried in a car rather than carrying on her person  it could include glucose liquid it could include juice which she brought to work with her each day in care and stored back in the break room here miss actions chose instead of carrying her glucose tablets you to request a reasonable accommodation right to say i'd like to bring my own orange do you think people would counter that maybe you could have said no you need to have a tablet but you didn't say that at all you just said well no orange juice not need one in the first instance because she had equally viable options available that's incurred larssen establish that she starts larson's question why didn't they say that isn't there some other way that we should've been obvious to mazak and she already owned them sherry kept them in a car she knew that she needed to ingest glucose she the hypoglycemia immediately and that's not the case with the tablet so but she did have a chance to do that here as i understand the record am i wrong about that her testimony is that she felt that she was unable to get to her own orange juice back in the yourself oh well that's the policy requires store by herself she's not allowed to cash or sell well she had she had her own she had her own orange juice there in the back and if she'd left the customers alone in the front hollow and she still could have drunk still could have been drinking it at the county i believe the testimony jerry west employee relations manager testified i believe and i forgive me if i miss state that it would not have been a violation  she ate or drank at the register and that was a violation if she ran back to her to the break room to get the juice that would have been a  violation there was just nothing she could have done without violating the rule the defendant says it's a zero tolerance policy but they didn't use a plan or even reprimand the supervisors who were not enforcing the rule and their own little office who really wasn't a zero tolerance policy and in fact the rule itself said discipline up to and including discharge i'm sorry i side of the debate is is we small combination of free standing i realized a freestanding path to showing disability discrimination a failure to accommodate but i've never thought of it is like its own claim by itself in my hypothetical to illustrate that i guess i am revealing which side of a debate i'm on but that you couldn't knock someone that said i have a medical need to come in at ten o'clock on wednesdays i mean just  and they ask for accommodation and the company says no and then the person says but are you going to fire me will they reduce my wages to say no we're just we're not going to say you can do this but we're also not going to a single thing that's hurtful to you you wouldn't have a reasonable accommodation claim would you and you probably wouldn't have any injury right so i guess my point is used you have to have a does a discriminatory act which is something whether it's a firing reduction wages failure to hire so it's that's what makes me think some kind of responding to your friends argument on the other side just is there just one claim here or these different passed to the ultimate disability discrimination i'm a little embarrassed that i don't know the answer to that the a b a defines discrimination it says to illegal to discriminate based on disability on the basis of disability that's the un it says in part some part b and discrimination is defined to include and that has a laundry list of things that would be considered discrimination one of which is failing to do to provide a reasonable accommodation has that has to be accompanied by an act that hurts the employee well if they did i suppose normally that's true that where they really dovetail very closely the determination and the reasonable accommodation  you i suppose if the person there are cases for example where an individual is denied the a stool needs to sit down because of a back injury or a leg injury or something like that and there she denied the stool and it's in she's kept in great pain great pain great pain great pain and is constructively discharged you have the construct the discharge i suppose before you get there there might be some kind of compensatory damages because of the pain that she was experiencing but normally the what does that discussion how does that help us figure out this timeliness issue because it seems i think his response is their only to victory was through reasonable accommodation and we have these cases that suggest the tennessee courts would recognize that claim under their disability discrimination law and i was thinking to myself well we have that's true that's one path but there's also just the question was there disability discrimination well that's exactly yossi takes the second approach we say that and agency is a is a fee if it prohibits discrimination generally it doesn't matter what there is they recognize right exactly if and that's a there's a practical reason this is commercial office products all over again there's a practical reason we have over  hundred theaters that we are involved with each of them has multiple statutes all with multiple claims and our investigators are the ones that have to make the initial cut what what's being complained about here and not all complaints are as nice and clean as this that can say is because a lot of our the charging parties are not represented so it takes a while to unravel what it is exactly they're complaining about it they come in they say i was fired because of my disability ok that looks like and i've heard all that leads you to the punch line if there's any possibility that the state an idiot could give relief the three hundred day rule applies if there's not a i think split that statutory exemption in the statute saying we do not cover x then we assume that the disability discrimination is what th is what wars happen in this case in terms of three hundred verse one hundred eighty days if the tennessee supreme court had said explicitly our statute does not cover reasonable accommodation type claims with a what would have happened and everything else is the same in this case what would have happened well you know i know i i i'm not trying million with any cases where we were involved with the tennessee supreme court or any other supreme court interpretation of a statute normally what and we have discretion to or don't and to interpret this provision and we interpret it to say that if the people will make it easier just the tennessee statute says we  this is the statutory language as the district court did here to say that if their feet and is authorized to go but i'm just i'm just asking a hypothetical hypothetically the tennessee disability discrimination law exams prohibits a claim based solely on reasonable accommodation what would happen with this case would you have said well the want to name the day rule applies or would you have said well this case has reasonable accommodation but also has a straight up disability just like in your honor i understand absolutely that person is complaining about disability discrimination one form of which was failure to accommodate but she was terminated because of her disability that was what she was complaining about point out i think the timing issue has been addressed by both parties already who have spoken before me but this issue of i want to point out that if you look at the e e o c charge form that parties fill out when they're filed their charges it my understanding is they're looking to see is there a disability discrimination claim and two side whether or not tennessee would be a deferral state for the purpose of that claim you look at is there enabling legislation in that state that refers to same basis of disability in this case we're talking about disability or same basis of discrimination in this case we're talking about disability so tennessee was a different state for purposes of this claim and i also want to point out that the tennessee code that the defendant's point that the only claim that we are pursuing is a reasonable accommodation claim that's simply not true the court actually even over our objections instructed the jury on a standard  fashion the standard mcdonnell douglas burden shifting analysis and so the jury after four days a jury heard the evidence and the jury heard the exact arguments the substantive arguments that mr graham and dollar general are making to the court have made in their the arguments regarding the accommodations whether it was necessary the arguments regarding whether or not there was disability bias or animus the jury heard all those arguments the jury decided that in this case miss atkins's turn nation was because of her disability awarded her damages based both on a failure to accommodate claim and on a disability discharge claim the disability discharge claim one component of that was that their failure to accommodate her led to her discharge but another component was just that they discharged her because of her disability and there is abundant evidence in the record that the jury could rely on to show that and so as your honor knows the difference your honour's know the deference as given to jury verdicts is great and what  general is trying to convince the court is that regardless of all the evidence of the jury heard that there is something has gone so a raw in this case that the juror that the court should disregard the jury's verdict and reverse that and  of course we leave your honor that is not the appropriate result for the court to reach in this case i did want to also mention in regards to the goal case and i did review that case and it was a case that was authored by yourself and my understanding of that case was that the defendant does cite a sentence from that case but the way that case goes on to interpret the the facts in that case is that saying essentially can do you have circumstantial sufficient circumstantial prime of fashion evidence that would lead to the presumption of intent and if not is there any direct evidence of animists as a way that i read the whole case your honor the goal case you know i guess if and it can pick out a sentence from it this is one thing but if you look at it in context i do not believe that it's creating a burden on every single disability discrimination plaintiff to prove that a defendant dislikes a person because they're disabled because important for your honour's to realize that when the defendant says that we acknowledged or are seated the fact that there was no animists what they're saying is that there was a statement made in closing argument in which we said there is no evidence that we understand this not the type of case in which they were not saying they fired her because they hate disabled people or that they fired her because they dislike the fact that she had diabetes well obviously ana that's not what we need to prove in this case they may have fired her because they don't want to accommodate her because they realize not only is she a disabled person with diabetes but she's someone now who want some sort of exemptions from our rules and if that's the reason that they fired her then that is disability discrimination that's unlawful under the ada regardless of whether they generally like people with disabilities or diabetes regards to whether the manager said no i think you're all your honour's dealt with that the manager in there were multiple witnesses who heard the store manager say you can't that that she can't have her orange juice with her because it would violate store policies  she couldn't go back to the back of the store to get her orange juice and so she elected she took in my opinion the most appropriate option she had available at her to at the time which is to grab a close by bottle of orange juice and it's important to note your honor that that the defendant's decision maker said well reported that conduct the we may have excused it will she did so for port she told her manager right away her manager who was not trained in disability accommodations perhaps thought she was making an accommodation by just not firing her for this so called one strike policy that they're claiming that the grazing policy is a one strike policy when in fact manager store managers seem to exhibit a great deal of discretion in terms of whether they allow people to whether they want people at all for that policy because there's evidence that need a combination right so the glucose to the test may also by the glucose tablets was miss akon said that she had purchased it once you heard about him purchased them looked at it realized that she would need to take four to five of these alka seltzer glucose tablets in order to get the recommended amount of sugar in her system to overcome her hypoglycemia so she never even opened the packet she left in her car it's been sitting in her car for years it was sitting in her car yesterday when i talked to her so the fact that there is suggesting that she should have done that means she made miss thayer is not was not testifying as a medical expert she was testifying as miss miss atkins's trading medical provider she said that yes there's various ways that people can treat hypoglycemia but it really depends on each person there is no testimony that miss actions that all of these treatment options would have been the same for miss actions miss atkins testified about why she chose orange juice and the key and i think  you're the one who brought this up was that they offered her nothing and for them to say that she's not entitled to the option of her preference they were she was given no option she's given no option but to violate the defendant's policies their time for now that she should have known which policy to violate she should have known that the grazing policy was the big no no and that that one would have got her fired but the fact is that she had in four or five different policies that she could have that she was left with just the decision of which one of my going to violate and she violated the one that was the most appropriate in her situation was to relieve her condition as quickly as possible while also not leaving the store in a vulnerable position by leaving customers at the front of the line and attended so in this case and again  purpose of the interactive process is so you can reach the conclusion and decide what accommodation is appropriate for both parties they failed to do that the myth that there would not have been undue burden in accommodating her and undue hardship and for that reason alone she should win her where if and again quoting from the work your agreement that in recognizing the differences between the t d m a and the a t h r c will transfer to you for initial processing each disability charges originally received which includes alleged issues covered by the special definition of what it considers to be discrimination on the basis of disability to include not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability i would submit that if this act is believe that she was not reasonably accommodated when she was told about the jews at the register that alone would have required her to make a charge if she felt that she should have been reasonably accommodate say i was fired because of my disability well she she would have first been on notice of a charge related to her alleged failure to be accommodated  forward looking next incident let me buy the orange juice well for looking next incident she should have accommodated herself in the way that she had available to her which would have included conservatively captures your position it's about to yourself in the reason for that your honor is that it's like if i have a headache i don't need to ask permission to take an aspirin it's common sense i have a headache i take aspirin if i have low blood sugar and i take glucose tablets i have some in my pocket right below as an example the genetic information nondiscrimination act which is not recognized under tennessee law there's not a statute to says we don't recognize genetic discrimination but the e e o c again notes that the briefly like to address the attorney's fees issue the court had very recently established a prevailing market rates within the eastern district of tennessee that was completely disturbed by the court's decision here in fact increased the prevailing market rate which is designed to attract competent counsel to accept a case increase that hourly rate by forty percent in this case and in so doing we believe erred by basing the hourly rate on the result obtained in the alleged complexity of the case which are matters that if they are to be considered at all should have been addressed after calculating the hourly rate and establishing at what it had already been which is two hundred fifty dollars an hour in that district and in fact miss actions council has been specifically recognized in one of those cases as  in one of those cases that recognised that raid but that if the results obtained were particularly good and if the case was particularly complex which i would submit this case was not of the straightforward case that that should have been addressed when adjusting the  they pursued identical theories at trial they acted as co counsel and the court here erred by rich by not reducing the field war to it to account for those deficienc