on i think it comes down to one question what is temporal proximity now the case law had been and may continue to be and this kind of a case that temporal proximity is measured from a certain time the court below measured it from the she was looking for the date of the applications for  workers compensation and she measured and to a great extent that plus in the second time the time  date that we would look at would be may twenty third teen when he was going to come back to work and we would say as far as the this issue of the workman's compensation issue we would say you got to measure it that way and it was this almost the same day with is that basically your argument that's true concerning lesser category because he did still have a few issues from that first of all of working at that point i beg your pardon you capable of working as a package a package driver at that point i couldn't i resigned unclear on that score you got it a limited lifting limits yes or yes if he had not been taking narcotic drugs which he was at that point he would i was always a caution but he obviously couldn't drive a car kind of drugs but assuming he didn't take those for for pain purposes took tylenol or some ibuprofen or something like that where he cleared was he physically able to do the job after the first  that's a question yes or i believe he was well i guess that's right the red lights and later on he got a better f c f c right yes or which was he clearly exceeded standards the first one said that he could not do very heavy the second one said he c off them and not using narcotics after the last three scription was issued july twenty thirty as ma'am so from may till at some point after that last  prescription he was using narcotics weaning off them is that correct that's the evidence we have here and not looking at looking back at at the doctor's letter on om on may the sixth the doctor states that that he can't drive if he's using hydro coating and and that he was using it on the day of the sectional the second functional capacity evaluation and at the end of the letter dr rodriguez was that when the second one was done that mr mcguire said that he had taken during the day that mean or that he had taken it previously that did not necessarily mean that he had taken it just before the exam or was still under the influence i think that's an inference that can be drawn but not this fairly well the doctor went to had on his deposition and explained the the  prescription process and just if you count the pills he he was still taking the pills because he got a quantity of forty and he was  told to take them every six hours and so on april the second then he got a recall refill request on april the twenty third if you do the math yes he was either taking the pills or throwing them away or was taking the pills what's not clear is that he would have had to take in the pills to do the job and there is a colloquy with the doctor dr rodriguez that we had and i can't cite specifically at the moment but can you say how fast that would clear his system at he taken so say the night before would he be cleared to work in the morning that's what we were going for and that's what we thought we had established but maybe we didn't but i think the real problem here is that the court didn't even bother to look at that the court right but let's focus on the prime aphasia showing  this or you've got to establish three things it's one that he's disabled or he was perceived as being this able which is the route you are taking here to that he's qualified is a qualified individual three that he was subjected to unlawful discrimination because of disability let's assume for the purposes of my question you made a prime of his showing about the first and the third they perceived him as being disabled and they discriminated him from account of that disability the central question here is is there other material from me or other material facts in dispute concerning the second element whether or not he is qualified and if it's an interesting issue here because you do get this letter from rodriguez he sends a note to you p s it's dated may the sixteenth two thousand and thirteen if i have it right he says based on the information of both functional capacity evaluations he is released to full duty with no restrictions that is just to me he can work he's qualified yes and then it goes on to say worthy has informed me his employer has an inside warehouse position available for him i think he'd be a good candidate for that based on the information of e s and then we come to the final statement he can take anti inflammatories for minor aches and discomfort but cannot take narcotics while on the job i don't time that's plainly a narcotic drug how could he have been released to full duty with no restrictions i guess what i'm saying is i don't i don't understand what's going on here i i believe what the doctor was trying to say was if he continues to take the oxy you can't do that but i can prescribe he was on the oxy at the very time when i said your doctor said he can be released to full duty with no restrictions notwithstanding the fact that he's on narcotics but by the way he can't take narcotics understand that but in what you just quoted the doctor also said i can prescribe other medications for his relieve at least that's the way we took it and when mr mike why would he have been qualified if he was on oxy at the time isn't the answer plainly no according to what rodriguez says if he was taking it and it affected his work yes and he doesn't say anything about effect if he doesn't say anything about affected his work maybe he had as you know a strong constitution and the oxy didn't have much effect on him or maybe the dosage wasn't high enough he says he's fully able to work but he can't take narcotics on the job yes or but he also says there are other pain relievers that he could take in order to perform the job right but he continued to prescribe it wasn't that he was telling him to take ibuprofen or something like that cortisone pregnant zone he says you can take narcotics but i'm going to continue to prescribe them and i do continue to prescribe them that's where i'm just i'm sort of hung up at that point because it looks to me and maybe i don't have it right that you can't meet the fir that showing that he was qualified to do this job if he was on narcotics at the very time the determination is made maybe i've misunderstood something here i don't know that you have your honor because if he was it the way that it was read by my client and by the union representative as he was released if he did not take thousand and thirteen letter from dr rodriguez a last prescription he received i believe was in july but at that point when that last prescription it was clear from what michael recollection of the doctor's testimony was that he was taking less of it that he didn't need as much as he had before and that he was waning so we're talking may june july two months maybe i have another question and that is leaving the prim case if if the company understood that he was taking our contacts during this period of time that his doctor was prescribing them why wouldn't that be a legitimate nondiscriminatory reason not mcguire appeared with this release saying full but that's the supervisor said well we can't employ you but we can't tell you why and we can't write down why because you think that's where i'm going let's assume that's not where i'm going the five percent would in no way affect his ability to drive according to dr rodriguez and  but according to dr rodriguez the taking of oxy cotton would affect his ability to drive and he was taking it during this period of time question and it's the way it effects perhaps affects the analysis here is something that is a disputed question and therefore summary judgment should been on or during that period what let me what is the cutoff period certainly by july the whole everything it shifted now to the inside job the doctor was saying he couldn't do the outside job he couldn't lift things he couldn't climb stairs and so forth well at that point that's a cut off at least as far as the the government the companies having a legitimate nondiscriminatory reason not not to give him an a driver position correct if they had  sir but they did not what they kept saying is we might not have work for you he's now saying that i can't do these doctors now saying i don't have the capability of doing that that work that the drivers job is too tough it that that those restrictions ladder climbing it's applied only while he was under the influence of a narcotic that it did not if he was not under the influence of a narcotic affect and those restrictions were ones that had been imposed in the first or course comp claim and after that worker's comp claim u p s put him back to work as a driver which is how he got injured the second time so if they would put him back to work that first time with those restrictions i think it's not  senate was taking opioids he was doing it at night not by day during the actual time when he was driving is that what i heard you do say a little earlier that's what i believe was true does he just if i could follow up does anyone support that proposition does any medical experts say that he would be qualified to drive by day if he took this dosage of  said maybe maybe not it's an individual thing so was he asked in the deposition here is the dosage if he took this dosage at night was he qualified to drive by day answer yes answer no answer maybe i don't know i mean was did that colloquy happen not exactly that way but generally speaking that way and the answer was yes i'm not going to say maybe he was qualified and maybe he wasn't he wasn't sure but the problem we have is that initially he was cleared to go back to work in march under the first yes he was taking narcotics at that time and probably more heavily than he understood and they turned him down and he repeatedly asked for twenty one twenty one times and he was turned down from march through july but the march through november so well november but certainly through july which is when he changed his contains his whole approach he wasn't looking for that particular job anymore was working for a warehouse job a crack i mean that's it look for warehouse job because he was told that there would be a warehouse job right would give him full time employment it turns out at time he had no employment at all right i understand that but the whole narcotics point which i don't think you can gloss over is is rather serious here if  the job because taking our contacts while driving is apart from the fact that maybe criminal is is certainly an impairment of of that of that ability  i can only rely on the fact that the doctor said he is fully qualified xcept and so we do except should we're talking about here all the fight and then later and as i said when he went in after the may statement from the doctor and said ok i've only released they didn't say oh you can't because you're taking narcotics they said we're not offering you a job and we can't tell you when we can't even write it down now later when he was well after he was employed under i would point out an aide a contract in november that's what it was it was an eight placement then he applied for for example for an air driver and the doctor said he could do the air driving he had applied for driving around within the complex before that and the doctor said that's fine he can do that specifically and there was no reference to that he was not released to go back to being a package driver never a march two thousand and thirteen he was given a lifting restriction he could only do medium to heavy the job of a package driver required heavy lifting he then was offered an accommodation because of that f c when he went back and he refused it he then went back and asked for another abscess did the company at the time you can't get the job because it requires having a heavy lifting to notify him to that effect that all this is a limited lifting that you've been your f c c says you have limited lifting capabilities therefore we're not giving you a job because that is what the job the job requires more evidence i don't believe that's in the record and if it is i don't you're saying and i don't know whether you're saying it as a matter of fact or just argument that we should know it's a matter of fact because the f c e says it and dr rodriguez when his deposition was taken said yes it's true he was medium to heavy i'm not first i know that the f c c says that but the question is what the what does the job require can you work with the medium to heavy the functional of the i believe in the record there was a description of the job and it did require the heavy lifting and in the f c e it said he could only he couldn't lift over seventy pounds and i believe the union rep and i don't know exactly also said that that is generally what is required so the u p s relies on the f c e in the report of the doctor to determine whether the employee can go back to that particular job so and i think that's the crux of the case here that mr maguire felt that he was released to go back to full time duty but not full time duty as a package driver which was the job that he had course the irony in this case is the employer encourages him by one right or pressures him by another to accept what happened your honor was indeed he did in the march two thousand and thirteen f c e was not not able to go back to package driver and because of that automatically he was referred to a d d eighty eight commendation which he refused and then he went back and requested a second on his own accord in order to be cleared to go back as a package driver unfortunately as as the panel has but but didn't the employer say he was in  applied to go forward because you can't do x so you better get in the comma dacian for y and then he goes forward sort of over protest and does y and the employer comes back and says ah you can't do it because you your you can perform the essential functions of your initial job what you're should he couldn't get up to the plate and swing from the right side he couldn't get up to the plate and swing from the lexx left side looks like he was pretty much shut out maguire why is that a poor or in accurate lens through which to look at the case because in fact mr maguire did not want the package driver job what he wanted was a full time job inside that's really what he wanted and  i thought that came up later well that came up in in may when he went and asked for the second f c e and said there's an inside job that i want and if you look at his testimony when he kept coming back for work he kept asking to do stuff inside can i sweep can i do ha if i can't do the heavy lifting can i do that and he wanted eight hours and the problem was that there was no nonunion position that would in violate the collective bargaining agreement that would allow him to have eight hours as a full time with full time benefits so that was the issue and that's why i say through that lens because they were trying to accommodate him when in fact he couldn't be a package driver but he yet he wanted eight hours and that was the issue in may he abandoned the a ny request for being a driver after it after he went back and got his f c and they said he's cleared to drive except with without being on narcotics bus by the way dr rodriguez was asked that question and he said it would be  his opinion that nobody should ever drive on narcotics and when asked about and i'm sorry i'm not answering but i just remembered that you had a question as far as whether dr rodriguez was asked that question whether he was qualified he said nobody should ever drive on narcotics and as a matter of fact when he was asked well what if you took the medication in the morning would it be out of his system and dr rodriguez said well it's a case by case basis however there is a half life to the medication to the narcotic to the oxys what was  and to do you say no he just said there's a half life and he would have to know when that person took it when the employee took it and when when the driving or whatever the function are essential job requirement he would be doing in order to be able to answer could have operated without them our cottage easily and and kicked at our comics i mean there's nothing firm about that if the doctor had said something like well he's on our contacts now but if you were off in our contacts you could definitely do it and there's no reason why i couldn't be off in two weeks then we have something determinative but here we don't seem to have much that that's determinative and i'm wondering whether this is better by jury well say that there's a two part response to that her first of all your honor i think there is there is sufficient in the record because he was asked dr rodriguez about narcotics and driving and he said no one should be no one should drive and we know for a fact that the doctor testified and we know he was on narcotics because he had a prescription up through july so even though the f c c said he's cleared for driving we know he's on narcotics i don't think that's a disputed issue of fact he had a prescription and he was on narcotics as a matter of fact he was on them when he did the second eval help me with that this is what i don't understand about what rodriguez says rodriguez writes that note may sixteenth two thousand and thirteen to the boss the he is released to full duty with no restrictions the cavity is he can't he can take in anti inflammatories for minor aches but he can't take narcotics while  the job he was the treating physician here he prescribed opioids prescribe them before he prescribed at the time that he wrote this letter on may sixteenth an prescribed them through into the summer of thirteen how does he say he can be released to full duty with no restrictions at the same time he says he can't take narcotics at the same time we know clarifies that later on and says he is cleared for an inside job not for the driving yet but was he ever asked in words or substance he dr rodriguez in that deposition to tell us what he meant when he said he was released to full duty with no restrictions how could he have been released if you were describing and he was taking narcotics well i think that goes back to the first one where were they released him with the condition that it could only be medium to heavy separate something that changes but then there's another i mean there are a series of letters from the treating physician sort of it's a work in progress correct but i'm focusing on the may sixteenth letter at that point he says this guy can go back to work full duty no restrictions nothing in bigger was about that he doesn't say if he's weaned off the narcotics if he's not taking them during the days taking them  i he's he's able bodied go back to work and we later learned that during that f c yes that's correct your honor and we like couldn't that be a basis from which you could argue to a jury on the central question the second element whether or not he was qualified that the treating physician said he was because that wasn't the final opinion of the treating physician he clarifies that made it with a note first saying for an inside job and then had to work i i release him to full duty with no restrictions and then he comes back and he says later that he was released only to an inside warehouse position but that's in the inside warehouse position is not full duty with no restrictions for the outside packaging job well i'm just saying there's an obvious substantial inconsistency between what rodriguez says on may sixteenth and what rodriguez says on july twenty nine and i'm simply not asking the same question judge walker has to which is why are there not knopf disputes material fact going to whether or not he was qualified to do the function of that initial job so that summary judgment was improper for the judge to decide it rather than the jury because i think eventually when you look at the whole if you just look at the may f c e yes you're i'd be enough to take it to a jury wouldn't it if that was it but you have to look at everything that followed afterwards and i would disagree to a jury because i think there was there was legitimate nondiscriminatory reasons that that that would even if he met the prima facia case of the eighty eight that would still keep it from the jury and what would that be the two soundest the two business decisions which were not rebutted below or in on appeal your honor which alone is sufficient to grant affirm the summary judgment included one that they relied on and that's why you have to look at the big picture the whole picture not just in that microscopic moment of maybe i have no doubt they perceived him as being disabled i think the first problem is clear well the only question is whether or not there is a debatable issue of fact of whether he in fact was disqualified or qualified to do the job well they perceived him of his able because he said he was disabled filled out the checklist and his doctor said he was disabled so the case all says that the perception is not if it's not a roni it's based on a recognized fact then the a d a s does not need to protect him i would say that number one number two getting back to the pretextual the reasons the legitimate reasons that were not protection will number one he himself said he was disabled he gave notes from his doctor his doctor said he was disabled his doctor said he couldn't drive or least of the package driver job and secondly the job that he wanted the inside job the full time job which is what he wanted in which he's complaining about is the could not be given to him because of the collective bargaining agree and he did not qualify and they would have to have violated the seniority of other employees and that collective bargain barring bargaining agreement and the case also supports that and says an employer does not have to provide an accommodation create one which is what mr maguire wanted he wanted to he wanted to work two part time jobs which would have been to get full time benefits which is answer let me shift to just for a minute mr workman's compensation claim just because one one question on that on page six of the district court opinion the district court in looking at cause ation said that there was no causal connection between the application for workman's comp benefits which was twenty twelve according to the findings of the district court and the defendant's denial of work when he was cleared to return to full time duty on met in may two thousand and thirteen then counsel supplied supplemental authority which  case of an f m a retaliation should be measured from the last day of the employer's f m a leave until the adverse employment action and issue occurs this reasoning in that we have saying you picked the wrong day no your honor and explain why because first of all you hit the nail on the head jones is an f m l a case and here we have a case under four of the workers compensation retaliatory statute which expressed the provides with the protected activity is and that's when that you measure the time it says and i quote no employee shall discharge him to a course any employee by reason of such employees valid claim for compensation the case law in the federal circuits and read federal circus have interpreted the protected activity requirement as requiring in a firm and enough temp to seek worker's comp so the statute itself says that the affirmative act of seeking or attempting to seek worker's comp is the protected activity and that's where the clock starts measuring with the f m l a case you have any florida cases i would i would cite two  actually it's a district court case and it's one four three feds up third eleven ninety five in his job back versus michael stores in and in that case your honor it's instructive because it does cite florida cases and it says no published place in florida has held that a worker's comp claim is viable in the absence of the filing a worker's comp claim of an a firm or an affirmative attempt and then in that case they say all federal district courts have also said that is the affirmative act of filing the claim or attempting to seek to claim which is the protected activity and we know under the statute you need the protected activity you need the the cause and then you need the cause of the adverse action and then you need the causal connection between those two so i don't think that jones is a political jones and if you read jones it says in the context of f m l a it says it several times it says because of this particular statute we're dealing with another different statute and we have lots of cases that say that you can't even start the clock running or measure the activity the temporal proximity from the time that the person's injured or the time that the person tells the employee that they're injured it has to be the affirmative act right if you could just bring it to i'll bring it to a close i would just say your honor that there that he did not meet the qualify that he did not meet the essential functions of a u p s package driver so he did not meet that prima facia case and i also would say even if that were the case that there was legitimate non descript nondiscriminatory reasons submitted which were never rebut it at motion at the summary judgment at all and that alone or here on appeal requires affirms of the summary judgment your honor thank you very much like you very much if judge black in response to your question i would point to the bruner case which we cited in our brief which was a case arising under the worker's comp retaliation statute where in the florida supreme court held that it was not the filing date because that was a case where there was a nexus showing that the discrimination occurred more than two years later by a different employer that different employer did not hire mr brown or because he had previously filed a worker's comp and sation claim so it's not the filing of the claim your honor the filing of the claim is essentially a sort of a condition precedent if you have filed a claim and you later have a discriminatory act or a refusal to hire or whatever it may be under the retaliation statute or even harassment under that statement the such as in the attic case that's what matters it's the time of the when the problem arises i mean mr bronner had gone about his work you know had done stuff for about two years he applied for a new job he got turned down because he had previously applied and the supreme court said hey this is a protective statute so i'm curious and your in your complaint you don't speak to the retaliation  facts of the retaliation and as an example the the five percent that u p s kept telling your client to to take off but yet you have that in an attachment to the complaint is there a reason why you didn't put that stupidity i don't know no i knew it at the time that's why i attached it it is in the original complaint which is a sworn charge which was sworn by my client just as my client said when he took this to our at one point i ve from h r told him this isn't right they're going to get sued this was when he was trying to go back to work full time now me ask you one question just the practical question i noted that judge  judge's order to the district judges order that was issued by judge bork lower in june twenty sixth two thousand and seventeen was characterized as quote a sealed order right as and there's a footnote that she dropped saying the order is sealed based on the court's reference to the exhibits the depositions and other materials that were placed under seal at the plaintiff's attorneys request however the court notes that pursuant to local rule when the woman see the order submitted from yeah i know i understand but i know what i got a very heavily redacted version and there is an under ducted version but from your perspective everything is on sealed by the natural operation of her order is that right my client was invited to do an idea he did the way he was later he was told on that a t f location though he really didn't want to do it that he was not qualif that he could do his full time job ultimately under the way he got the four hours part time work in november late november of  that year but that was termed an idea accommodation now two things mr rothman the union agent testified that he knew that there was eight hours of work that mr maguire could do available and if they wanted to do it as an aid they could do it any time that he would do it he offered that at his deposition he said i can create a position for mr mcguire that the company that will not violate the c p a and we can go forward and the company refused and the other thing was that i wanted to clear up is that when he asked for the warehouse job it was not the only job he was asking for he was asking for that job if you read the specific request that says i am told there is a warehouse job i would like to know if i'm qualified for that and the doctor said yes you are but again every time the doctor said but no narcotics while you're working and that continued even though the doctor knew he was off thank you counsel i appreciate you both for your efforts thank you