good afternoon your honors my name is heather fox and i represent the point of appellant james graham in his case against a former employer arctic zone ice place referred to as easy i in the record this case is on appeal during the course of that employment and that resulted in subsequent treatment through the workers comp carrier he was on leave he came back was under restrictions of sedentary work only and to not be driving anything at work easy i provided the job of ice skate sharpening as his accommodation and it is disputed as to whether or not that is a sedentary job mr graham asserts that that job requires him to stand say something in fact mr albeit has that position admitted that they considered it insubordination when he complained about the ice skating job he did not use the specific characterization of you're not accommodating me or this isn't sedentary work but he complained that the ice skating job wasn't working for him but there's a big difference between saying that could be frannie number of reasons i don't like sharpening skates i mean he has to put for purpose of the interactive process for having had to put the employer on notice that he needs an accommodation because of his disability right the employer was on legal counsel for himself but so he didn't use any specific language but didn't say i can't shop and skates because it requires me to stand and i need to sit not those that are not legally right now if you use those exact words he complained about having to sharpen the skids and when he would sit down they would tell him get back to work so we'd go back to work and when he pushed back it was considered support mission and active is even included as terminations notice as insubordination the fact that he questioned doing the ice skating understanding from it is you have to get the right angle in order for you to cut the ice appropriately and to maintain balance and so my client explains that you have to stand in order to get the proper angle on the standing machine so is our it's our position that is an issue of fact as well as whether or not it was mr graham spalt or easy as fault that there was no interactive process engaged in additionally in addition to our failure to accommodate clean we also have failure or discrimination based on disability and that's the book a lot of the discussion in the brief because you know the term nation contains five items and two of the items directly relate to mr graham's work comp injury subsequent disability and restrictions i remember one is he was demoted or position changed from head mechanic to night mechanic as a result of his injury we questioned it  was considered insubordination the other item is what we just discussed which was he challenged the standing up job of ice skate sharpening and that was also considered sport nation there's three other items one of which women is is insufficient and that's the customer complaints mr johnson who is mr graham's supervisor he testified under oath that those instances of customer complaints were a big deal they weren't documented there was no record of discipline even one of the customers frequently complains and so mr johnson didn't think it was an issue it was insufficient to warrant formal discipline at the time it occurred months before terminations insufficient  sorts where he scraped the baseboards with the bottom or the blade of dizzy and bony this resulted in a piece of the baseboard being cut through and exposed as allowing your children or other people on the ice to quickly oversee the relative amount of the damages to compare to your rights so one there's an issue of fact as to whether or not that occurred my client indicates that the wall was repaired before any customers had come on the ice the only time easy i brought it up was after the computer was discovered and it was told that the compared only cause minimal damage when it was discovered the minimal damage was actually were fifteen hundred dollars whereas my client's damage that was categorized as point i came up with the defense that yes they were somehow danger customers but i think it's an issue of fact as to whether or not there was actually any issue of customers giving danger to customers and given the shifting reasons is the issue of whether a concussion even amounts to a disability the appellant did not even raise this issue in their brief comments counsel merely refer district court assuming for the purposes of this ruling however apparently has raised it in their brief on two occasions where we did dispute whether concussion even amounts to disability stated temporary not chronic incur months of short duration with little or no long term or permanent impact or usually not disability and even goes on to say including concussions that's exactly what is at issue here is a transient injury which does not fall under the a analysis should end there there shouldn't be any more discussion this does not fall under the a da however to the extent that the court wants to consider whether is impacted here we have to keep in mind that not every injury equates to a disability otherwise every anytime anyone is injured on the workplace you would have an eighty eight question and that's just not not what it's intended for that's the realm of workers compensation that was a separate claim which is currently in state court when the district court decided because he complained of skate sharpening or that there were customer complaints and then we have that the motion and we have to consider the time line here this individual was hired december of two thousand and fourteen and it was terminated in october of two thousand and fifteen that's ten months for approximately three of those months he was not even at work so in seven months he had at least two customer complaints he was not timely performing his job and then we have the complaints about sharpening skates well what we have here is not him complaining that it's not meeting his accommodation or that he can't do it or he can't sit down as far as those workers comp restrictions are concerned he's complaining because he doesn't want to be sharpening skates but this is all happening in a seven month period this court stated in munroe versus in the end of the part of transportation eight seventy one f there were ninety five in determining whether an employer stated reason is pretextual the question is not whether the employer stated reason was inaccurate or unfair but whether the employer honestly believe the reason it has offered to explain that this charge appellant throughout this process throughout this case has basically argued this is not fair but that's not the question the question is whether they believe arctics own eyes plex believed that at the time of his terminations those five points the bullet points in his terminations notice which is part of the record or were a justified reason for terminated turn let's talk about the the accommodation again we're talking about a job restriction that is coming from his doctor for work restriction related to workers comp arctics on ice plex disputes that this is a disability in opponents brief they argue or he argues that arctic zone recognized the disability or regarded him as having a disability because floyd johnson testified in his deposition that yeah concussion that's very serious that's really bad i think we all understand and realize in today's day and age especially with everything you hear about football that concussions are bad and they are dangerous but they're not a disability unless you have repeated concussions i think the medical evidence can show that you're going to recover it's transient and in this case we know be recovered but what's important about this is the only testimony in the record is that the only available position at arctic zone that met his restrictions was skate sharp and the owner of the company even called the worker comp case manager to make sure that he could do the skate sharpening job and while my coffee and floyd johnson both testified that it can be done either sit standing it does not negate the fact that it can be done sid it that's the evidence in the record and it's the only position under the a d n a an employer is not required to create a job this would have been the only option to have him come back when he checked when he wanted to come back when the doctor was allowing him to come back which to put him in this position the fact that he felt it was a better result with the skate sharpening to stand up does not change the fact that it can be done sitting down now the issue of the motion has come up also and i'll submit to this court that that is a red herring this is a small business and full of employees only two or three mechanics at any given time of the year or main i'm sorry not mechanics mean it's individuals one of which was he was told when he was hired during the busy season peak season you will be required to work nights my call he testified that the peak season the september of march the only reason at the outset of his employment was that he was working days was because he was still trained still learning still still having to understand the system  understand people understand what would be required of him so that he can then ultimately work nights but regardless of when he was working or what hours he was working he retained the same pay held the same position maintenance and type now whether you want to call it night maintenance or night mechanic or head mechanic or head maintenance it doesn't change the fact that you had the same pay with the same benefits one thing i want to point out for this court again has to do with the chronology of events at any given point if you want to believe that there was any and discriminatory animi from arctic so nice bikes they had from february thirteenth two thousand and fifteen when he was first injured until aug twel two thousand and fifteen when he was released without restrictions to fire him or to discriminate against they've brought him back they brought him when he had the restrictions that lasted for several months and even after he was without restrictions they provided the framework that the doctor required which was one week of half days then another two weeks at i think it was six hours per day and then back to full time work and then it wasn't for another month and a ham that they terminated him it was specifically on the night of this and bony incident n guard lists of whether they were inarticulate about about that incident whether it was a whole day's worth of damage or a you know excessive amount of damage you have all these factors the customer complaints the insubordination and that incident that led to determination and i ask your honour's to affirm the lower court's decision of summary judgment the issue here is that the district court gave e t i the benefit of all inferences and the when there's anything in conflict it was automatically granted to the easy i or the benefit of the doubt there are numerous issues here where is the guy's stories explanation statements have changed most specifically even in their own terminations notice they say that they changed his position because of his injury and subsequent disability but under oath in a deposition they say there was no change in position if it was merely because they're small company and they needed to move people around then they could only that and say that in their deposition rather than now lying and saying there was no change clearly says there was there along with the exaggeration of the image that's not required those things indicate there was pretext for discrimination those things should be left to the trier of fact to determine and not the district court judge to make those decisions wasn't mr graham's fault he fell off a ladder and got hurt shortly after being hired and to say that because worker's comp d d a doesn't apply well that's ridiculous because anytime you're going to be a work comp injury you could be very severe which of course the media is going to apply so yes there's a spectrum and i did not address the disability issue because i'm appealing the district court's order in the district court order said for the purposes of the decision there was a disability so i wasn't going to waste my briefing on that topic if the district court felt that was a topic that needed to be further fleshed out in its decision and i would have addressed it however it's not something that needed to be addressed miss graham clearly had an injury that had restrictions