yes lang was an unloader and she worked at the wal mart distribution center in new hampshire as an unloader it was her job to get merchandise off of tractor trailer trucks in the first ten months of her employment with wal mart she had to take to personal use for injuries she had it not injuries but for medical conditions she had a ruptured ovarian cyst and she also had about a possible bottle of structure then about a year into her job there she became pregnant she went to the doctor and the doctor suggested that she should not lift more than twenty pounds she question the doctor about this because she was worried that if she went back to wal mart and told them this she might be put on paid leave which was exactly what eventually happened but at this point the doctor said ok that's not a restriction it's just a suggestion she went back to work and she maintained and continued in her job as an unloader for another month at this point she was injured she pulled a muscle in her uterus she went back to the doctor and the doctor said now it's a restriction you may not lift more than twenty pounds it's at this point that mislaying formally requested an accommodation from wal mart denied her request for an accommodation and it did so for one reason and only one reason and that is because it said that her condition was temporary had a policy in place that said if your condition was going to last less than six months it was it would not qualify as a disability under the age well wal mart's one reason is patently illegal there's certainly no hard and fast time limit for the length of time a condition or impairment  aviate request in writing did list pregnancy as a disability but then it went on to explain in several places throughout the medical questionnaire that was attached that what was happening and what was rendering her disabled was her inability to lift more than twenty pounds i submit that wal mart was clear from day one that she was not claiming that she was disabled simply because she was pregnant but she was claiming she was disabled because the doctor had told her work no the job description did not in fact wal mart's job description only listed four essential functions of the job one of which is relevant here and bat it reads unloading freight from trailer manually or with power equipment and that disjunctive is of very important or later in the job description wal mart does list list lifting up to sixty pounds as a physical activity which it believes was required in order to accomplish the essential functions but i believe that that's an area your honor i believe that what happens and in this case and what has happened in other cases is that there's an improper focus the function of this job of an unloader was to unload merchandise it didn't matter whether it was being done by hand or by machine depending on what was needed but if it wasn't that you had to do it by hand that was not a requirement of certain of the trailers had to be  the yes your honor but this lange put into evidence that ninety percent there were two different types of trailers one that was completely loaded with pallets and could be easily emptied using forklifts mechanical equipment another type of trailer where the merchandise was loaded from floor to ceiling and the entire trailer had to be unloaded by hand and miss lang put into evidence the fact that ninety percent of those hello to trailers could be unloaded completely with mechanical order in which the trucks came in so they tried to on load the truck mccain and purse were they moved to another well your honor i believe that how the trucks were assigned and how they were unloaded in the order which they were loaded is a fact question for a trial a question that ms lang put enough evidence in on that the jury should be allowed inside don't you know the answer work here i understand let me address that directly ms lange put in very specific factual evidence that the way the trucks were unloaded is that there would be a stack of papers one for each truck and that her supervisor and sometimes a fellow coworker with a leaf through those and choose which ones to hand her and other people and it was in fact this is just to explain a little bit more this is exactly what was happening to her soon as she told wal mart she was manager that in fact oh no you know trucks that needed trucks were unloaded in the order in which they came in and that it was random but i submit that the evidence that ms lang has presented a sufficient to reach a jury on that question of exactly how is it that these trucks were assigned because her testimony is that as i said when she first came back and said she was pregnant she began being assigned to those trucks with much more frequency and regularity she had very solid evidence on there she certainly worked there long enough to know what the practice was and could testify about how her assignments were given to her for all i know a bunch of rocks which require work on prior to her announcing her pregnancy and post announcing her pregnancy and that and wal mart itself at nets in terms of the number of trucks and when they would come in i meant that the record is a little thin on that but wal mart of self  mitted that thirty percent of the trucks could be unloaded completely with mechanical equipment so therefore given the size of wal mart the size of their distribution center it's very difficult to believe that they couldn't have assigned her to the non manual truck since they after her pregnancy after her maternity leave and she came back to work five months later she injured her arm at work she says she's a pension owner nerve which is very painful and it was a long term issue for her for which she received a lot of medical treatment so at this point wal mart has now got her packed and in their mind she's someone garou who is probably taking advantage of these federal laws a bit too often but from her perspective of course she was just a worker who have to get injured again and of course it was no joy for her at that point wal mart put her on light duty which is something else they could have done for her when she first became pregnant but chose not to anyway they put her on light duty at that point at the end of ninety days of light duty it is walmart policy to then make a decision and in this is what she had been expecting and rose and rose the head of h r knew that at the end when that ninety days was up that was just about the time of the lang family wanted to transfer if you're on light duty and miss rose knew that and that's and so at the end of this ninety day period she continued that light duty period yeah ninety days well beyond any policy that wal mart would well cover i no i don't believe so at all because at that point all the other policy well the at that point the other thing they did was that they denied her worker's comp claim and this despite the fact that in her affidavit in this court is lying admits that i mean  rose a wal mart employee admits that ms lang was injured she did injure that owner on the job so there's no good faith faith basis in the record for wal mart to deny that worker's comp claim it all seems to be part of this orchestration that retaliation claims that ms lange put a ton of a large quantity of evidence into the record concerning the disparate ways she was treated after she was injured and was injured multiple times wal mart we go back next seven months of your pregnancy you were not to lift more than twenty pounds and i believe this was because of the fury injury because there are many other types of injuries that pregnant women can suffer and she fears she was she had shown a propensity to suffer it and i believe that that is the complication from the pregnancy and that this is significantly different the disability wasn't just that she pulled one muscle the disability was the propensity to pull more and the lifting restriction it was her inability to lift more than twenty pounds that when compared with the rest of the population which is the test under the a v a that rendered her disabled we have to remember that the aviator regulations are very clear that even a temporary restriction something lasting less than six months can qualify as a disability a da has said that and the c has said that the e e o c also puts in as an example in its regulations the very type of thing we're talking about here they put in there are twenty pound temporary lifting restriction and they say that that qualifies so how can it be that that would qualify if it were not pregnancy related but somehow just because mislaying is pregnant and it's not going to qualify i mean the whole point of the two thousand and eight amendments to the a p a were to make the definition of disability easier for and that's what congress was trying to do it was trying to over turn what the u s supreme court had done in may the hurdle higher and higher so certainly it can't be that just because miss lang's disability her inability to lift more than twenty pounds was somehow related to a pregnancy certainly actions she asked for an accommodation she's told no because i don't want to have to make a similar accommodation for every guy who comes along who has a back injury is put under this restriction and then they start does remain a ding against her and retaliat hurt two times when she was pregnant was put on a lifting restriction then she hurt her arm this was a physical this was if i may finish my answer thank you this was a physically demanding job and this was an employee who had been hurt several times but i don't believe that like to argue that  but that has little factual connection to the pregnancy slash is the lady well your honor i would argue that there's quite a connection because she was hurt she had two medical conditions that she required leave for then she had her disability accomplish your complication of her pregnancy then she had another injury so this was an employee who four times in the course of a couple years needed to be accommodated by walmart they didn't like that that's expensive and it's a pain in the neck it's a lot easier just to get rid of her and i believe that's why you were reasonable accommodation claim had only to do with the pregnancy and not the other as well that's true it's a little difficult though to to carve that out because what this is all all going on in the backdrop of the discrimination retaliation which is lying has brought forth in her new hampshire put the lifting restriction in place at her initial appointment on october seventh of two thousand and ten a month before ms lang was injured at work that was fiction did not change at all from the outset of her pregnancy throughout the initial visit  twenty pound restriction after the muscle pull as the stablished by the request for accommodation forms that she filed with wal mart it was also a twenty pound restriction there's no evidence in the record of any sort of complication or other factor related to doctor told her that initial visit you are restricted from listing twenty pounds but ms lang said i don't want that restriction in writing because i'm concerned about what implications that may have for me at work and then when she does have now under both the a b a before and after the amendments act it's clear and i don't think my sister would disagree that pregnancy itself is not a disability what but pregnancy related impairments may that limit assists  have it may rise to that level here there's no evidence of any kind of any sort of additional factor other than just her pregnancy in the record in fact as i understand my sister's argument if she's saying essentially that any sort of lifting restriction imposed by a doctor regardless of the source or cause of that lifting restriction constitutes an impairment under the a p a and i don't think that here that we suggest that you not lift a certain amount going forward that that precaution would somehow be translated into it apparent for purposes of the law and the effect of that we've seen as many why and why do you keep harping on the suggestion versus restriction i don't think it made sandy difference to your argument and doesn't help you to say that this suggestion was really a restriction written down later isn't your point that whether it's a limitation imposed by a doctor or a suggestion it still doesn't make it itself which is the case here is not a disability instead the former rule that you have to have some sort of complications for lack of better term related to your pregnancy in order to rise to the level of complication because there is no evidence that it was anything other than a standard restriction imposed on someone at the outset of a pregnancy there's no matter if it was if it was just a standard restriction injury as a result of the with the news in a thing in the record to support that you know your honor i don't believe there is i believe the restriction stayed the same throughout there's no evidence to suggest that she had any sort of increased risk or proclivity for muscle shoals or any other kind disabled to a retaliation theory which you're going to have to deal with conceptually as a separate yes your honor with regard to her retaliation claim i think it's important to take into account the multiple extensions of the leave the ursuline absence that were granted by the alleged discriminatory actor here the human resources manager andrea rose she as a as the lower court found wal mart affectively bend over backwards to allow ms lang to remain in her position she was granted three separate extensions of this personal leave of absence so that she effectively going from february august six months of extensions those are not the actions of a discriminatory actor there's no basis in the record to suggest that wal mart was required to give those extensions those were given voluntarily to allow ms lang the opportunity to find a doctor who could treat her in florida who provides documentation to support her continued leave of absence moreover there's no evidence in the record that rose the human resources person harbored any sort of retaliatory a against ms lang either for her filing with a new hampshire commission for human rights or because of her requests for accommodation the sloan statement are the statement that they that is lying primarily relies on the statement that well if i if i granted your fast i have to grant everybody's request or respectfully your honor that was made before she filed her charge of discrimination with the commission and certainly as the lower court found it's a factual statement from  your corporate culture whether it's a pregnant woman or a guy what's the problem with trying to honor a weight restriction in the course of your ms there are a number of problems with your honor and first off when there are a number of trailers that come through some are stacked floor ceiling some are not you don't know until you open up a trail of what it's going to look like even this lame conceded that some of the trailers that she thought she might be able to use our equipment on sometimes she had to  use manual lifting because things would break in transit where they think things were not patched correctly and therefore it would completely destroy workflow if you had to ship a trailer assigned to one person and you had to bring in some people after the fact to do the manual lifting that this person couldn't this the system was essentially you know one trailer per person at least that's how it was that was planned out of originally and how many trailers are in there one time here your honor that's not in the record there's no evidence in the d the job description is not a legal document your honor into to suggest that this or in the job description somehow means that manual lifting up to sixty pounds is not an essential function of the job i don't believe has any basis in the law or in the position and in this case the fundamental job duties of the unloader are cheap unload the trailers that come into the distribution center and the testimony and it is clear that at least some portion of those need to be unloaded by hand and i believe that by failing to raise that issue below his language waive that issue on appeal and i don't think there's any circumstances here that would warrant a and exercise a discourse discretion excuse that failure to raise the argument below that this is in fact a essential function of her job is a fairly unique fact based question you need to one job one employer it's not the sort of broad based constitutional question that's likely to recur in a lot of different scenarios where an a relaxation of the raise or we role is typically invoked or over there would be prejudice here if this issue were allowed to be argued for the first time an appeal specifically wal mart if it had known that there was going to be a dispute about whether lifting sixty pounds without assistance is an essential function it certainly would have put additional evidence into the record regarding job functions as well as the genesis and wording of the job description so if there are no other questions i