at discharge the testimony from dr cassidy was that he had a a record a physical impairment substantially lifted limiting his ability to stand not cast he also testified that the last time he saw land in february of two thousand and fourteen he was disabled from standing he didn't make that opinion in a vacuum land had in the last year and a half before he was discharge substantial physical breakdowns he had carpal tunnel surgery multiple cortisone injections in his knee surgery for partial knee replacement spondylolisthesis lumbar he was subject to substantial lifting and standing from june until twenty third and so i think he clearly was disabled under  the the us code twelve one zero to the trial court rested its opinion on the fact that there were no active medical restrictions at the time that he was discharged under johns the honda the court said that the doctor had said to go back to work right we had two treating physicians he had a back issue and he had a knee issue at the tower and that on october twenty third he had no active medical restrictions that was that your question but he did say he go back to work ok so why doesn't that support the district court why doesn't excuse me why doesn't that support the district co complaining to that his supervisors that he could lift a fifty pound bag or could whatever he was supposed to do there were he was he would complain to his immediate supervisor the store  manager he said he would complain that he couldn't stand and standing issue what it was mostly a standing issue yes your honor he was restricted from both but the standing was the thing that he was really restricted from so i believe the statute based on the statute of the record of disability qualifies him is disabled at that time based on the testimony of dr cassidy and and that's who he was report to according to the system and injure job description and that's who he talked to the district managers were either in another state or had seventeen other stores and he was on the active medical restrictions they talked about it in august emails about him being disabled and the district manager says we're going to work on him that he's clearly disabled and within while he's still on those severe restrictions for standing he has a meeting on october thirtieth and it follows that up with an august thirtieth followed up with august thirtieth e mail that says i go out i want you to be out of the office six to six hours a day at least six hours a day which would require him to be on his feet that's immediately after they talked about the restrictions were crying just to be on his feet for two hours  this is knowing full well that he's on active restrictions the other thing that i think was very telling about that was that there was  plan that he was going to work on him and he was he supposedly had quote about what those restrictions work and then he just three weeks later he  had him doing more than that based on the documentation so what's your take on the pretext point on pretext i think that it comes down to three things documentation if you look at the documentation everybody admits he did a good job of it that's gets back to your point that landon has had a pretty good relationship but has wasn't the decision maker  a decision made at everybody at one point in the depositions denied being the decision maker but they have argued that hash was the decision maker he was certainly the terminator was it was was hashed then his direct report oh that's way ok ok well that's my that our manager ok store manager so the store manager and land have a good relationship they have a it terminations to say how good a job that land had done and the term nation came as a  surprise on march the twenty first to when and when begging to not fire land he said i could make it without right but i mean if i guess my point is who cares about the store managers views if the store manager is not the decision maker that was what i'm trying to get at i think it comes down to whether he did a good job or not and the store manager who was there with him every day said he did a good job the human resources person that looked over the found said he did a good job even hash who reviewed the evaluations called it peaches and cream said he did a good job everybody in this case had said land did a good job yet they put him on this pip and which was a four to my right is a forty five day pick up that says if you don't improve you may be disciplined further including terminations and the date of the terminations is forty eight forty nine days after the start of that my right on my facts and not sure that i got the the exact days right but yes and the interesting thing about that was they put him on the pip which is a disciplinary type thing despite a conversation with h r they kept saying you don't have documentation to to do what you're trying to do to land they never there is there is no southern states documentation that says that he did not do a good job what he needed to improve on that he needed to improve and yet they put him on a pip plan in ford which was cited by southern states and i think is just absolutely contrast in forward it was decided on the basis of documentation they documented poor performance they documented that the lady  was in the bottom ten percent of her class the documented many absences that caused mistakes documented and they said the documentation was success substantial for it also said that  the fact that there was the documentation was significant in this case in this case it's the same rule applies but the significance is there was no documentation of any poor performance as a matter of fact at the pip matter of law is paper documentation required to show proof to show lack of pretext and he can help but it's not required by law is  well what we have here is they said he was fired from or for poor performance we think that's masking the real reason that he was fired which was his disability but if you but it couldn't have at least in principle putting them on the pip couldn't have anything to do with the retaliation claim because they put him on the pip well before this letter was sent write the letter no the letter was sent it that that's right the separation between the two claims that you're saying they put him on the pill without justification because of his disability but that couldn't have it the putting him on the couldn't have been impacted by the letter because it happened significantly earlier as the actual firing you could claim was affected by it but not putting them on the pill that's exactly that's exactly right you're so out of this is really a question for both of you on the pretext points there's a pretext point with the discrimination in retaliation claims right so that rejects the pretext would be this i know that's that's my question is so in other words if you if you if you're right that on the just discrimination claim the evidence there's sufficient evidence a pretext to go to a jury i take it you would think the same is true for the retaliation claim but that's a helpful way of saying it is the opposite true if there's no evidence of  the question is whether they were put on notice human resources donna garcia testified specifically that in this case when clay when as part of the documentation good morning he was josh soul spirit and counsel for southern states may please the court this is a disability discrimination retaliation case about a man who ran his own small business for decades but after thirty years of doing that and frankly it was not able to adapt to working for others in the larger corporate corporate culture granted judge who had found that southern states didn't handle perfectly things perfectly and were not disputing that here but because the law doesn't require perfect decisions because mr land can not show he was disabled are considered disabled at the time of terminations and that is the law because this court needs to evaluate southern state stated reasons for terminations by looking at the facts as they appear to the decision makers and because mr land must produce significant probative evidence from particular points of record not subject not mere disagreement he's got to go beyond that to show his case the court needs to uphold judge wood's decision to grant summary judgment which which what's your take on my pretext question is it the same analysis for both claims in other words no sir could be good it could be good for you because you could show there was no pretext in the discrimination claim and therefore you might say follows there was no pretext in the retaliation claim but it could be bad for you because you cou think a big part of the problem here in this case is that our plaintive is conflated is discrimination retaliation claims and that's why we have this hang up in the briefing on whether or not mr land was required to show he was disabled at the time of terminations to your point conflating them and why i was conflating them because i don't understand what his letter is the letter that's the source of the retaliation claim doesn't really spell out the minute the misconduct except to say hostile work environment and what i thought but when i look at the record you help me on this but my look at the record all i can see is an environment that's problematic when it comes to discrimination get someone with a disability discrimination based on leave so that's why it seems fair to think there there's a lot of connection between the two claims that what's the retaliation is about complaining about dispose discrimination that leads to the question whether it really was there really was discrimination so that's why the conflation is going on i think that's why your friend on the other side answered the question the way he did but you seem to be thinking they were there quite separate i think there are two different issues your honor with the discrimination the issue is was the actual physical condition the disability was that in place at the time such that it could have motivated so the state's decision to take determination action what do you think the retaliations about i think the retaliation by mr land's own briefings and pleadings on appeal anyway is about what he said in his march tenth performance improvement plan response march twenty thir where he says listen i think i'm being discriminated and harassed now on appeal mr lantos position i was signaling and southern states should have picked up but that was disability discrimination there's a significant problem with the record not supporting that number one it was vague and not just vague in the sense of well you didn't use magic words it's lacking the context that exists in the other case mr landis cited to this court where additional facts such as the case that was just submitted earlier this week that if you monkeys complaining about disability discrimination you know there's no such thing as retaliation claims about they're not liking me it's retaliation for protected conduct so protected conduct would be complaining about being discriminated against in violation of the n t you know discrimination laws with respect to disability if you get that you understand the point i'm making i do understand the point is what your theory of what he's retaliation claim is if it's not about disability discrimination i think he says his retaliation claims about disability criminalization i think he thinks and i think the record shows he thought he was being retaliate against for things such as perhaps they want to replace me with this younger relative  discrimination which is abandon on appeal or enough it is a thing which of course we know is not a cause of action i think we're that's all we're still left with only disability we're left is this bilious is theory but not with the record supports is what he was complaining about that's his theory on appeal that is not what he was complaining about and that's not what the record supports he was complaining about at the time you're saying this is not a stab about claiming to be related to that disability or you or doesn't like anything i'm saying it  to anything that is actionable around before this court on appeal the warhorse analogy brings it back into context here he cites in talk about context matters were raising big claims correct that's the case law they're looking for context his context is the warhorse case which judge heard correctly found no reasonable jury could find was inferring anything in terms of protected class or status in fact the record shows that mr lamb thought if anything warhorse had to do with his age which he's completely abandoned now or perhaps this desire to replace mr land with the relative here none of those are disability disability action that he's presenting beef to southern states that time if anything but the fact the matter is he was incredibly bay we know that while you don't have to use magic words you do have to give some context to show you're not just throwing the term harassment or discrimination around generically and that gets done quite a bit in the employment cont this retaliation that that he should have said what he did but because older because i can't stand that rather all day long or something like that to show exactly what th if you look at the other cases that were cited you have for example in a gender discrimination case a young lady not only saying that i'm being harassed but saying he's treating me with derogatory comments he's being incredibly diminutive towards me you have a clear may feel male female dichotomy but more importantly than this you have a timing issue and that's the other problem the retaliation claim doesn't work the law is the record of uncontroverted uncontroverted beyond speculation that the decision to terminate was already made by the time the march tenth letter was submitted that's the record and there's nothing in it to refute it but let me take you back to what we were we that basically you're a legitimate nondiscriminatory reason is his poor performance as indicated by the pip which doesn't get cleared up isn't that therefore since your reason is legitimate and is not undercut by any other evidence there's no pretext why isn't that exactly the same for both claims i would have thought that since you at least  definitely below got a finding of no pretext on the first that you would want them to be the same so i want to get your theory as to why they are not the same the claim that the claims are different but i would have thought your defense of legitimate nondiscriminatory reason and no pretext are legitimate nondiscriminatory reason defense is the defense to both but you're looking at a different issue in terms of what is each claim based upon the claim  you win if you have a legitimate nondiscriminatory reason in both cases in both claims it defeats the pretext of you were screaming against me because of my disability defeats the pretext of you would discriminate you retaliate against me because i made this complaint big though it may be they are very closely related i do think there is some separateness to them but you know i can't deny their close related the first thing i'd like to do is dispute he said there was absolutely no reason to think that the decision that i had not already been made donna garcia with human reasons was an enterable integral part of that decision she was working with pas with regard to land at the time she was opposing at the time the letters which were transmitted to hash she was opposing terminations she gets hope to have success in not having him terminated hashim cell said we didn't even consider any other options and wouldn't go elaborate in terms of what those options were until seven to ten days before after of the submi that letter submitted on march eleventh on that day garcia who oppose terminations in a change of protocol was taken off the case that same day the fowls that she had on hash were taken and given to somebody else in human resources to review obviously the decision had not been made and there was significant change of protocol to get to the point after that that he was terminated and that's in the record and in it it it it's certainly rebuts anything that mr salisbury just said about that but your best evidence of times he basic history in corral g of the case and then the doctor says one doctor says you could go back to work without restrictions and so i guess i thought at least up to that point when he said he needed accommodation he got it and tell me if i'm wrong about that and then tell me if what happened after that that shows he asked for an accommodation he didn't get it which we did not agree with that that was the judge's opinion what's what's the give me the give me the most glaring example of why the judge was wrong on this point just in instance like you know on this day he asked for this and that didn't happen what comes to mind for me is that october aug thirtieth when hash says i want you to be on the floor six day timers he is still subject to not being on the floor on his feet for more than two hours at a time he has to report to  october i'm sorry i meant august in the other thing that i would head it's august thirty is what we're talking about i guess the best example of something where he won an accommodation didn't get it that's right when did when  tell hash about this complaint of august thirty we had no proof that he did he said he would take care of it and he when he when he said he would take care of it and they did take care of it they   he'll talk to hash and he didn't i don't i do not know provided i know that there was no chill when communicates to land i'll take care of it that's right isn't that important  out in august there was increased scrutiny and every two weeks when he came down he would have something else another task for on land to do which mounted with what wind was doing at one  point land complained when he said look he's telling me to ignore you i feel caught between a rock and a hard spot what's going on here and that's all in the record the final thing that i'd add about the record is the judge's adoption of the record the record was solely based on the world testimony at deposition a year and a half after our land was f far and and and found substandard performance despite what the documented record says or in the face of the documented record all right thank you thank you act and thank thanks to both of you for your helpful briefs and argument for answering the questions we appreciate it case will be submitted in the