the facts in the light most favorable to the plaintiff on the motion for summary judgment also he applied the incorrect law with regard to the issue about the disability discrimination in this case mr n had worked for h for a number of years and began working there two thousand and eight then he was a he was a delivery driver carrying heavy water bottles by the the beginning of june two thousand and thirteen he sort of started to feel more and more pain in his left shoulder and in his wrist due to the amount of lifting he had to do in his deliveries and at that time he asked the part time warehouse worker  noonan yes yes he was terminated he didn't quit voluntarily absolutely all right and what was the reason given by the employer employer the reason i gave was that the due to budget cuts the warehouse job the part time warehouse job was eliminated and therefore mr news would not have that position despite the fact that they had approved the switch a few days before that and i know what basis but that's our position with regard to the incorrect law that was applied you know there are several definitions of disability one is the regarded as you're speaking about another one is so called physical definition yes did you did you argue that below i know the judge ruled on it but i'm going to a hard time finding where you actually raised that oh well i rewrote my argument before arguing the case before this court and submitted did you submit any any written arguments with respect to this so called physical definition of i don't recall that but i know that at the argument i did reference this shoulder injury in the wrist injuries and the fact that there was a lifting restriction on the judge that asked me about that and then the judge specifically asked me if this is regarded as situation and we went on to discuss you and you and you briefed and argued to regard it as issue i'm trying to focus on the physical definition of disability i know the judge ruled on and the judge has a portion of his order that deals with it and it's briefed on appeal like the other side suggest that maybe you didn't preserve it some trying to find out if you did well i believe it was mentioned in  posing papers that that would be one of the three criteria for this ability the written record of and also the regarded as perceived disabled and definitely on the argument i did discuss that issue and the judge understood because yes we specifically is a regarded as situation and yet your yes it was did you give my definition at that time or were there any discussion about what is regarded as mean what's the definition again i'd have to review the you don't recall if you know recall i just gushing about that i think i mean i frankly i think we did discuss you know what that means in terms of if an employer regards an employee as being or get together during oral argument there or did he say something about you know what it is i law we were talking mostly about the facts and what the theory of the case was so that i think was more in his order that came out with a focus focussing on their guard as are you assuming that the district  light the facts in the light most favorable to us mr new knees said early june he wanted to switch to a lighter duty job they told him on june fourteenth that it was approved that on june seventeenth he told the the management that he was having the the pain in the left shoulder and then two days later after you work two days in a row with no discussion about anything he was falsely told that the job was eliminated so position that they said just no longer available because of budget cuts and then the testimony and the evidence that on june twenty sixth they actually advertised for the pacific and between june seventeenth and june one thousand you said he was working definition of disability he as mr brower said he had requested a transfer and it was approved and high holding says that when he asked for the transfer  mention of pain this is important because as congress amended the definition of regarded as disability thing folded in an element of causation and just to back up the a step  individual meets the regarded as provision definition of disability if they have an impairment and the employer takes an adverse action because of it it's that simple  regulations and in the portion we resigned in our debt and we explain that if an individual has a skin graft so that is a a disorder of the skin or a condition of the skin it's been altered and the employer fires them because of it no evidence that they cannot do a job or they're limited in any way in doing anything they have met the definition of regarded as disabled and congress altered the definition that way because courts were tripping over who was covered under the act instead of looking at whether discrimination based on disability occurred and courts and congress wanted courts to move in that so he needs a definition because when he asked for the transfer and it was approved he had not mentioned shoulder pain and then two days later he first mentions shoulder pain that would be june seventeenth nothing happens that day but he mentions and so the there's there are notice his manager mr tabu later says in his declaration that he had never missed a day of work and he never expressed any pain other than normal aches and pains that one would expect when you're lifting heavy things regularly and so i would submit a jury could find that that comment on june seventeenth mr whataburger heard i have shoulder pain as normal aches and pains that anyone would have but two days later so after doing three full days of the delivery job at the end of the day on june nineteenth he says i'd like to go see my doctor for the shoulder pain before my medical benefits run out which would happen when the approved transfer occurred because he was going from full time to part time and at that point when he notifies them he's going to see a doctor about it now it's not ordinary take x and pain sets the first time the end of the day june nineteenth that high holding is on notice that there's something more wrong with his shoulder not that he can't do the job and he has no obligation to prove coverage to show he's limited in any way just that he has an impairment and at that point things start to happen and there are conversations back and forth with honolulu and later that day the job the transfer is withdrawn so we can taking those facts in a light most favorable we could reasonable and that's why i was asking should around the question merely the fact that he did mention shoulder pain earlier on would that be enough to get to a jury anyone could feel sore for any number of reasons so it was only that he he gave indication that it was something a little more serious and that all of the evidence in the record shows that that was in fact an impairment very soon after that his doctor diagnosed a rotator cuff syndrome and he continued in treatment for more than six months that we know from the record because high holding put those medical records in in there somewhere but the fact that he had the impairment isn't really relevant to us today as it is completely relevant the only grounds on which the district court granted summary judgment was instance the and the only reason i mentioned the medical records and because there is an exception to the regarded as a definition of disability and that is if it happens to be something temporary minor and dead as more than six months or less than six months would be temporary minor transitory a minor i'm sorry but the condition has to be both transitory and minor and so here we know from the medical records that high holding put into the summary judgment record that i'm sorry i'm approaching my time that we know it wasn't transitory because it lasted more than nine months and it wasn't minor because the pain was very intense ask you the following  in other circuits we have found are just missing the fact that congress amended the statute in two thousand and nine and made this the change in the way disability is evaluated coverage under the act is evaluated this court so in our statement of interest we pointed out that there was another case pending on appeal baker and that case we also participate as an amicus and this court correctly applied the amended definition to to reverse summary case looked to the only authority i could find from the ninth circuit and that was the walton decision in two thousand and seven so before the amendment one last question for you that there maybe i should have asked you mr brower this well why don't we just in this case if you right tell the district court what the correct standard is it really meant for the court to apply the correct standard to the facts as opposed to applying it the first instance ourselves the definition is so straightforward and the facts are so simple and clear there's nothing to be gained by allowing the district court to apply its discretion there is no discretion to be had here and if i could just point the court to the regulations that we attach and  are the appendix to our regulars the guidelines that explain it it we recites some of the congressional a legislative history that accompanied the amendments and it is so straight for that i would i'd hate for the district court to be misled into thinking  applying the amended definition of the record is that another word that you know made an error or are you saying that the record is such that then under the correct an actual disability and issue when the argument appears to be whether or not he was regarded as well your honor below him to be for the district court mr argued that he was actually disabled at the oral argument because it was unclear from the moving papers the opposing papers the district court was confused as to what the argument was during oral argument mr barr youth that he was it was as argument so but he but there's two different definitions and one might be disabled under one but not under the other correct right so and i take your point that there's some confusion in the record below about whether regard as argument but if you answer that way they have sounds as though you're waiving the argument that the failure to brief it by mr brower makes any difference what i would request that i be permitted to argue without reading any of our we are argument thousand right and whether or not you should have won or lost stay was the easy issue i'm sort of asking the other side isn't that isn't the applying the wrong last something we should tell the district court now that's consider i don't believe it was sufficiently raised where a patent had only cursory christer really addressed on it on its moving peepers or at least in the peel papers that well you weren't you're prejudiced in were to send it back down on the basis of you know air of law on that definition is is there any then anything further you could present to the just record in you know i harbor even if this court finds that the district court applied the wrong standard it should still be able to research same result based on based on the fact that the limited univers summarize it is that the day before he was told the job was wrong he told his employer that he wanted to go have a shoulder checked out while he still had economic benefits and a job that taking a it's not a smoking gun it's all circumstantial but why isn't it enough for reasonable jury to conclude that the employer regarded mr new users program as a discipline that's a good question objectively reasonable person on there's the common person would say from that you know that's that's some evidence that i know enough to be enough to create a question of fact i think that is not enough to create a question of fact and i don't i don't believe a reasonable jury plaintiff would have them which is to say i had to transfer approved to the warehouse i told my employer on july seventeenth that i was experiencing shoulder pain and i wanted to go to the doctor for  days later on the nineteenth my previously approved transfer is denied then within the next week there's an advertisement for the very position that i've been told is not available in the newspaper what explanation do you have to me the jury or the from the employer side is an innocent explanation or you can argue let me first point out one misstatement of fact that the e e o c needed in this case the mr known as did not state seventeenth mr known his claims that he reported to mr koppel that he had generalized right right we all agree but it would focus on this statement that i've got to go see the doctor was that made out occurred on june twentieth he never he never told mr he never told mr watada with that he need to see a doctor all a doctor on june twentieth which was the day after that conversation took place regarding it i use the client off of that part time position so we would argue that withdrawn i'm saying that there was no discussion that he's nothing in this record to reflect that discredit all we have here and all that's relevant to the the inquiry is what age i e knew prior to declining to offer an apart y processed as having voluntarily resigned and that his two weeks which is customary for an individual resigning and his two weeks what and on july third if a child even regarded him as just a can find on appeal that the district court is correct in its conclusion that mr newman is did not establish that he was disabled under any of the problems of the definition of disability even to appeal one of my concerns about us taking up issues in the first instance is there really isn't any appeal from us as a practical matter so when we do that we really deprive both sides of appellate review you know i'm reading addition according to the evidence of the plaintiffs he was then given a false reason he was the reason he was given was listen to the opposition has been has been eliminated because of budget cuts but if we believe players evidence that's just not true so why are they covering up and giving him a false reason if it had nothing of the real reason was one that they could admit to i don't get it but which which tells me why this is a case that the jury could find against you ok ok thank you so you have very specific questions like yes or you referred in your opening remarks to a conversation on june nineteenth and i'm trying to find out where that is in the record and on page four of our brief we cite to a document that high holding put into the summary judgment record that would be document number twenty six dash twelve before this court high holding again and clued in there supplemental excerpts of record so it's beginning on page two zero three and going forward for the next two pages that is the summary of the unemployment insurance divisions examiner who interviewed mr new knees and then carefully recorded a number of details most of which overlap entirely in this is the one piece that is added in now it's it's a state it's a state official record  fight him he was asked if going to file a worker's comp claim and state just because he got hurt on the job claimant later inquired with no reason if boss spoke with honolulu nor in such he didn't know but boss would be back and if it goes it goes on and just gripes a number of phone calls between mr what tabu and honolulu and back again and then coming back and saying you have to resign he says why do you why you all you know says he's had he asked for a transfer and it got approved now he's being told you have to resign right after he said it was ok if i go see the after june twentieth that that one piece yes i don't know that's that's why i waited consistent with his declaration but not on a material fact to his id a claim that would be relevant perhaps on the worker's comp claim where the question is did the employer take action because it or didn't know about the intent to put in a worker's comp claim but for the a b a the only thing that matters is did the employer have some indication that we're no longer talking about sore shoulders that anyone might get if they just do a little that high put into the record which fills in a gap that mr newman is didn't see as necessary to elaborate in his declaration but is still another statement is somebody else recording new statement he's the plaintiff he can certainly get on the witness stand and testify at trial as to what he said on this day and would you point me to the precise page as c r two o three break ok if you said to night before i could if i'm sorry i meant two or three and it goes on for the next few pages through i think two or five and this is this purports to be the examiners recounting of what mr nothing has told him yes he's not making he's not making factual five now in fact at one point he says that mr news came with a narrative that he had written down and