court i'm steve curry i'm here on behalf of the appellate general most so in this case is a court's aware from the breaking of the parties this is a case that was dismissed by the district court on summary judgment it involves issued by this court and both of those cases the court distinguish between discrete acts of discrimination which would trigger a charge of discrimination versus a hostile work environment kline which the court says is continuing in nature it's our position in this case that the complaint of activities are evidence of a hostile work environment climb and it's  continuing bowel ation argument that is consistent with the e e o c charge itself which has continuing violation checked it's also consistent with the evidence presented during the summary judgment for savings mr mozes was grippy eight years old he was the oldest employee at falcon jet that's not really disputed in this case mr moses also was was an actual disability known to the falcon jet and human resources department to the nurse there he was required to report to these individuals because of his disability because of the medications that he took the and what is interesting in this case and the district court didn't really address this is the record shows that for mr moses a valuation is if exceeded expectations that he got positive reviews that he was a value asset to the company that he makes expectations during this time he was having back issues he was required to aware or you have the employee has to make a request for reasonable and tom accommodation to trigger the employer's duty to evaluate the situation engage in a maining full conversation and to craft an accommodation that would address a disability the undisputed evidence in this case mr moses is that he had gone to his supervisors he had reported to h r he had told him that i am being placed under undue stress by the harassment of must supervisors and he mentioned some bad name he asked to be removed out from under their supervision and transferred to a work assignment that would be outside of those supervisors control after that assault boughton j it was able to make that accommodation they made the transfer his against his work performance was was receiving positive comments but for some reason that is not articulated by falcon jet they reversed that position and they took mr moses and put him back into the environment that was causing him to cope and to the stressful environment with his supervisor it's when he was placed back under this supervision that his job performance became an issue his stress level became an issue his blood pressure increased he was having trouble in performing his job should have mattered to us that you know if you look at it we have a mr moses reports but there doesn't seem to be medical evidence that addresses that his blood pressure spiked in that the numbers were what he said as does that matter at all does it matter that he was experiencing well doesn't matter that the only evidence we have fight for it is his statements without any medical record evidence thank you the real look at the report of dr karley which was what they call their i am a report even hate cooperates many of the testimony of mr moses right which i think would be credible under the circumstances because it's cooperated both by dr karley and if you look in the evaluations even there are there's a calming out in the evaluation of it's it's a it's evaluation that was dave's september the thirty first of two thousand and twelve but was actually signed by the supervisors tobar the twelfth of two thousand  twelve i think it's in the record it to nineteen through to twenty six there's a comment made by the evaluators who happened to be those people that were harassing mr moses that he he was on able to get along with the supervisors so if if you look at outside cooperation of the testimony of mr moses yes i think it is there but there's no there's no doctor's report in there that supports a request for accommodation and i would submit that none is needed because they employ or recognise what was being requested of them and accommodated by doing exactly what he asked for by moving him out from under those supervisors right to sue letter before he was terminated correct a received his right to sue letter your honor was yes it was the right so i unlawful termination looking and hindsight yes but the thing is that and what the district court and not address is under the arkansas discrimination act he is still covered under the one year statute under the arkansas act so he's got one year from the time of the farm a nation which can file his complaint which he day and the district court does not really address the arkansas  aspect of the case which i think is is certainly subject to this court's consideration because even if the terminations had expired under federal law under state law he still preserved under both the ninety days after the issuance of the right so a letter as well as down under the one year statute under the arkansas act i wanted to talk or address the issue of the i am a report and the in this case the employee has requested accommodation he was expanded on accommodation then he goes back again after he has been rea the signed accommodation at this point in time his employer rejects that request and it took them some time we have the evaluation and then there's an i am a mating that is set up on set or yes september the twelfth of two thousand and thirteen with dr karley again we don't have any testimony from dr carli is what actually happened so were the facts and not just me the facts come from mr moses he climbs that the met the meeting actually lasted three minutes during that time he wanted to tell dr karley about the harassment and the treatment plan afforded to him by his supervisors dr want to talk to you about that i don't want to hear it it was not put in the report there's no mention in dr carley's i am a report anything about the harassment so therefore if he doesn't deal with the harassment issues when he makes a recommendation that there's no way to accommodate this request he's not considered what the real issue is he's not addressed the disability that is presented by mr moses and because of of harassment he was being subjected to that's consistent too if you look in the record mr mouse's says that at his employee reviews he wanted to to add to that only employee comment section i'm been subjected to the supervisor told him you're not going to do that he wrote it out anyway and the supervisor threw it away that's undisputed and so it it's almost as if ok we know you make these attempts to include it in the record he was apparently deprived that opportunity doesn't is it significant at all that when he was asked about the harassment his his understanding that the purpose of the harassment was because they were fearful he was going to take his job rather than ever stating that he thought he was being discriminated against as a result of either his age or a status of disability he does say that your honor but he also describes a situation where sabotage of the work the taking of the tools and the various things like but mr moses is of the opinion that was because of his disability but there's also testimony in there that he thought they were also concerned that he might take their job so it's kind of a mixed situation but the record does reflect that i've got five minutes reserved which i've got way into so i've got about two minutes of back and sat down and come back to corporate buyers and private buyers around the world and has a completion center in little rock arkansas where it employs about eight hundred employees mr moses was a flight avionics checkout  employee which meant that he had a safety sensitive job his job was to check out the avionics and like electrical equipment of the jet before the jet was delivered to the customer and that job included flying with the pilot on test the terminations claims judge movie judge really correctly concluded are barred and it's not that the o c charges on timely or that it should have been amended as judge smith correctly pointed out there should have been a second e s e charge after are thus barred and correctly not allowed to proceed i believe what mr moses is trying to do i think is misplaced or rely on a continuing violation theory i think morgan this clear that allow age claims does not allow proceed disability claims so mr moses clings to his actual disability discrimination at the term nation and we would contend that while the district court did not directly address that it did conclude that mr mose was not qualified to do the job because of the i am me and because he was not qualified he could not sue for disability discrimination at the term nation the harassment claims are also were properly dismissed there was no evidence that ada disability was a reason for the alleged harassment as judge erickson pointed out my deposition questions directly to mr moses ask him was it your disability and he said no i think it was because they were trying to take my job or they were afraid i would take their job and that admission is clear that mr mose didn't think it was his disability that he was being harassed or being picked on for but even if there were was evidence that disability or age was a reason to conduct alleges not severe and pervasive this quarter set that bar the very high bar to prove what  severe and prevail and here we have allegations that someone could accuse them of being drunk at work someone may have stolen his tools someone may have sabotaged his work once one occasion let's accept all that is true as we must on the summary judgment wrecker not severe improvises law requires much more than that title seven in the statutes we are here under the idea and a d n a there not a civility cold zero seven but transitioning to the failure to accommodate klein when he did complain of harassment and this was after his first incidence of poor performance  require a company to give an employee the exact a combination he requested and the law in this circuit and the c clearly states that reassignment is an accommodation of last resort but falcon did that out of the previously supervised mr moses in two thousand and ten and twenty eleven and when you supervise mr moses in twenty thousand and twenty eleven mr bonamy gave mr moses good review satisfactory reviews but in and thirteen mr biden then completes the performance evaluation and its needs improvement consistent with the poor performance evaluations from mr shrum earlier in the year and mr mos deposition testimony that he has no allegations no problems with mr bottoms never complain that there was harassment under his watch in short that accommodation didn't work tried it and the honor that the law of the a d a s requires accommodation for a disability and mr moses alleges that the harassment exacerbated or made his condition worse so they transfer him to some when where i think he's saying my blood pressure was lower i was i was better off in with this other supervisor and according to our records and his performance evaluations with this new supervisor who had previously reviewed him this new supervisor said his performance had not improved and there were still problems with his concentration and focus at work so that led falcon jet to the next step  how can we accommodate you in the workplace and they scheduled the i am me and august twenty third team and dr karley came back with his report and he said he's not qualified to do his current job there's no possible accommodation in his current job and there are severe restrictions if he's going to be employed including not working in a safety sensitive position and not lifting over thirty pounds at that what's interesting is i believe judge erickson made that the point that there is no contrary medical evidence in the record to contest dr carley's opinion that he was not qualified for the job and there was no accommodation possible in that job this case may have been different had there been that had mr moses complains well i mean was unfair i didn't dr karley didn't consider my allegations of harassment well that was never raised at any point before his terminations falcon jet didn't know that this guy was has been conjured during a lawsuit but let's say that happen he could have gone and gotten a second opinion he could have gone to another doctor and if another doctor said yes you are qualified or you can be accommodated in jet would have considered that but that didn't happen that's not this case in fact his own treating physician in february of two thousand and fourteen and a statement to support his application for disability benefits said that his condition had worsened now he had been on medical leave away from the facility for five months and during that time his condition had worsened while at home and his own treating p condition was permit and would not change the third accommodation that falcon jet offered was another job they continued to look for openings that would meet dr crowley's restrictions they found a job that became open in january twenty fourth team it was in the security department it was release or pay they offered it to mr moses and he rejected it and the and the law is very clear that once an employee rejects a reasonable accommodation the interactive process is over and the duty to accommodate is over so in sum with regard to the failure to accommodate climb we submit that tried three ways to accommodate him and none of those ways works the retaliation claims quickly the temp proximity just isn't there to prove causation between the protected activity and the terminations at the e e o c charges in november of two thousand and thirteen and the terminations occur in june two thousand and fourteen and there's no and we can't escape the sole fact that the i am me during this entire period declared him not qualified to do the job he was in there was no way to accommodate him in that job and that was the reason that he was not reassigned to to do that job with a different supervisor what mr moses would have my client do is to reinstate him ignore the doctor's opinion put him back in his old job with a new supervisor having him flying around arkansas doing the safety checks when there's a written medical record telling us not to do that and we don't believe the law requires that finally determination letter when it was delivered clearly said it any time it's your mission changes you want to reapply please do so and of course that that has never happened we have no indeed indication that this condition has ever change i would submit in closing your honour's that judge me got it right summary judgment was properly granted and we ask that you affirm that that order you have to entertain any questions you have a thank that argument of counsel reflects that this case is extremely fact sensitive which many of which wore out contin incorrectly considered by the district court i think that because of the fact issues that a jury should determine the issues that are presented in this case and on a way we get there is of this court work to reverse the grant of summary judgment there are several things if you recall counsel said that dr karley said mr moses maids to be removed from a security position they want to example he gave of reasonable accommodations made to mr moses was we're go you in the security check the guard check we're going to give you a gun we're going to pay you half of what you were being paid and mr moses said did that so one would think just from a credibility situation if mr moses really was a security risk through his disability why give the man a gun you're just you're the story that they present just simply has holes in it persuasive treatment that has been afforded to mr moses again what was being done to him was being done to him back his supervisors they knew about it they had been h r he'd been told about it th had been told about it and they allowed it to continue especially when they put him back under the supervisor's watch that had ben they the guilty parties and while it may not be persuasive or severe to us it was to handle because you've got to look at mr moses was suffering from a disability that was extremely stressed sensitive and because of that when it got around to the terminations letter i think the damage and that was not a bonafide at all for that's probably what thank you thank you mr curry for thanks both counsel for your presence in the arguments you provided to the court this morning will take the case for an advisement maybe