the first issue is whether it's summary judgment the trial court erred when it misread this court's ruling in machall and in veeck county of san diego and erred by holding the plaintiff had to specifically required by that ruling to produce for both imperatori evidence as well as medical evidence that is simply a misreading of this court's ruling and is concerned inconsistent with federal law  federal regulations rather and both ninth circuit and first circuit authority i cited the cats in my briefing for the principle that a motivating factor applies to the a that case they also held that earth stated that there is certainly no general rule that medical testimony is always necessary to establish disability when properly applied when problem when mcclinton is properly applied to the facts of this case in summary judgment there was evidence that my client was substantially limited in not one but a number of major life activities including sleeping interacting with others and reading  that there appear to be no other evidence regarding the issue of impotence and how that impacted the major life activity of engaging in sexual relations  after noting that there appeared to be no other record evidence regarding the ability to engage in sexual relations the court went on to say in the declaration of self he states the simplest and that's enough to survive summary judgment of the other major life activities your honor is correct but there is nothing in machall in it maclin simply can't stand for the principle it's required because it itself applied relied on the declaration part of the courts doesn't need to make that ruling your honor the court simply needs to rule that medical evidence is not required in every case back you don't need to you don't need to make a ruling that in a number itself a declaration will always be sufficient but as to the facts of this case and given the nature of the major life activities in question there was sufficient evidence of admissible evidence based on the declaration itself to establish a substantial limitation in a major life activity there may  situation such as perhaps actual epilepsy or diabetes or some medical condition that doesn't necessarily manifest itself in a outwardly apparent manner or would say no i don't that's the way you presented those facts yourself and the way you structured those facts i don't believe that would be a severe enough limitation but worse he just doesn't in this case that i can only read three to five minutes not that i have difficulty your choice of difficulty has been rejected but you know there circuits and it may not be enough evidence if he has difficulty and then there are additional here we have those fracture on my client doesn't say i have difficulty reading and sometimes i don't understand everything which is vague that perhaps summary judgment would have been appropriate for my client comes in and says i have difficulty concentrating i can't cannot read more than three to five minutes before things get so jumbled in my mind that i have to stop now that is a factual it what is a doctor going to how is it the doctor's going to rely on his representations often anyway a doctor isn't going to change that testimony or or by agreeing to it add anything to the facts that are necessary for the court to rule or for the jury to ultimately rule there were the question isn't whether it's medical evidence or not the question is whether the facts presented are sufficient to establish a substantial limitation and i throw out that in certain cases given certain types of depression bipolar disorder and the major life activities that were substantially limited by that are set forth in both of our briefs but they affect it sleep interacting with others caring for himself concentrating and thinking clearly and reading not interesting we the defendant did not even address the issues of caring for him self concentrating or thinking clearly i think one of the simplest ways to look at this and there's there's a great deal of detail as to two of his difficulty sleeping and the fact the key factor there is that at times he couldn't sleep at all which brings us back to the  limitation in sleeping in the interacting with others the macro linden standard requires that your severe problems are characterized such as there are consistently high levels of hostility social withdrawal or failure to communicate with others here we have based on plaintiff's testimony the type of details facts to meet that standard nearly completed the completely avoided crowds and other social actions he stayed at home as much as possible he had trouble interacting with people socially only with people socially other than his immediate family and at times he could not bring himself to interact with his family if you avoid using this question  one of which i argue the current convert case it does not stand for the principle that successful treatment you're able to function because you're on medications negates the disability the question is still is there a lingering effect despite the medication still constitute a substantial limitation just as in the medical in the case despite the fact that the plaintiff was taking medication he still had difficulty sleeping such that it was sufficient to be a substantial limitation one of the key factors and in a substantial limitation analysis in this case applies to caring for himself and constantly interacting with others and thinking clearly and that is the fact that my client had both the language of interacting with others my client put a gun to his head at one point due to a suicidal thoughts my client got a gun and went after the his wife's lover not went after went looking for his wife's lover with that god that is evidence of hostility in interacting toward others it is certainly evidence of not thinking clearly reasons and being hospitalized due to these conditions where the depression and bipolar disorder were diagnosed and he was hospitalized because his anger was he was so out of control that it his family had yes i believe there is i believe that i believe the best analysis is and i don't like relying upon it but if it's the best for no analysis i'm going to win that's a north dakota district court case that started in  is court in the in this substantial authority i'm sorry not substantial supplemental a story that we started to this court in the stiegel case first if you will case applied the motivating factor mixed motive standard in a title seven retaliation case and i think i think the court needs to recognize that one way or another it's it is a motivating standard applied in either case a motivating factor is a proper standard for both discrimination and retaliation the issue isn't whether it's a motivated i believe the probably analyzed a motivating factor applies in either case and the issue then becomes what defense the defense is entitled to under the other two thousand need to em title seven the ninety one civil rights act and if i incorporating the two thousand and five g language that incorporates the motivating factor language and the reason it is if you look at two thousand for situations where the plaintiff has met the two thousand need to am motivating factor and then inherently that the motivating factor standard is also incorporated and you can't have the throughout throughout both discrimination and retaliation clauses now the one case that holds that the mitigating factor is not enough in discrimination cases is a sixth circuit rehabilitation act case law where it was soley because of but that was changed and changed knowingly by congress and the legislative history establishes that that's  because of was taken out for purposes of the ag in title seven and so since the motivating factor applies to both a motivating factor standard applies as a burden of proof to both discrimination and retaliation case is the crux of this appeal comes down to whether the court properly applied and in this case it simply did not because there was evidence of under the cost a standard there was evidence of discriminatory elements the court denied directed verdict there must have been and there was evidence of one or more other one of one or more other reasons one of which must be legitimate and here we had just doesn't stick we had to reason to sort of by the defendant they got stuck in the mud or they abused they have violated the equipment abuse policy and we have the evidence supporting that it may be due to the discriminatory everything in the record  the evidence is the is the litany of treatment starting from when he goes out on leave and statements such as if you need daytime work only you better look for other work the hassle of getting the multiple allowed leaks there's no question he's allowed to leave the question is when he comes back from the leave was he treated when he asked for additional accommodations by only working the day shift by not working overtime by asking for those accommodations and i believe the decision might be different had we been able to put on evidence of him being disabled itself we've been able to put on other evidence that related to the terminations that we weren't allowed to put on because of the summary judgment but that to your question is that the facts were that he was allowed family medical leave and so that was a very weak aspect of the case the facts were much stronger that his request for accommodation where we were met with responses such as if you need full time day time work you better look for another job and similar comments in con there's been i think a misstatement of what the court's holding really in terms of actual disability and record of disability claims that were dismissed in the calendar case what george marsh did here and found and says in his opinion is because of the type of major life activities that are being asserted that you need to have some specific  case and he says in that case that the court required evidence such asked i think that gives this court some guidance in terms of the ruling you're going to give to the problem here is this is not a case where it's obvious that the condition or the disability substantially limits the major life activity unlike somebody in a wheelchair can't walk someone who is blind can't read someone who's deaf can't hear this  much more subtle kind of case where legend sleep problems concentrating interacting with others well those are common problems everybody in society has to some extent or another and you can't just come  into federal court and give an affidavit and say i'm substantially limited in sleeping because i have problems sleeping or i have problems interacting with others or thinking clearly and the other things we're discussing here today assertions and i think the court said because you don't have medical evidence because you don't have compared evidence because you don't have specific evidence i don't find you a stab us for purposes of summary judgment that you have a claim why are his statements evidence they would be if you yes your honor we've and we've sided with for example on the sleeping we've cited a string of cases on sleeping that say the fact mere fact you can only sleep two or three hours and i or four or five hours a night doesn't mean you're substantially limited to major life activity about the vision that i think that's a good question and a good good example i'm talking about the eating commences i can't read that would be obvious i'm unable to read and that's a major life activity he says i can only read for up to five minutes at a time now as is that a severe permanent impact on a major life activity or is that a problem that a lot of other people in life experience taking his facts on their own we submit and judge marshall correctly found that's not enough you have to have some other can you maybe it's comparative evidence maybe it's medical evidence maybe some other type of evidence that that's a severe one separately that's good ninth circuit law in the sleeping situation of macallan and they found that there was medical testimony they verify that even though he he had problems sleeping he was on medication those problems persisted in this case what  think it's up to the court to to ferret those out which ones apply and that's the case by case analysis and i think that's what judge marsh did he carefully went through each of the three things and said these are the kinds of things you need something a little more of and you don't have  saying i can't do those things but i have problems i think i'm substantially impaired then more evidence is required i think that's the proper standard for the course or does that make it  tried to narrow down to have this law just apply to people who are legitimately disabled and have a limitation that effects a major life activity not the whole much larger group of people who have various problems in life like really two parts as which said in brief there's the statutory argument that i'll get into in a minute but i think you don't even have to go there in this case because what judge marsh really found and why he gave up because was a woman that worked in a warehouse to desert elsewhere house you know and claim gender discrimination she was harassed by her male coworkers she was disciplined more harshly better male coworkers she got think the court found that she in fact it did not dispute some of the things that the company based their disciplinary decision on but they found that at least one of the reasons was gender discrimination or which allegation at least there was to take the lower scoop of sand and drop it into a hopper which went into the plant and help mix up a product that was shipped out by far just at some point during the day he took a slower you saw some water b this isn't a single market i don't know what a single motive case would be because if you have two reasons and he's denying the one reason completely insane it's got to be this other re for other services as well there's no circuit that is analyzed the statutory difference between eighty eight and the title seven the oregon state statute models itself on the a b a they both use the because of language the civil rights act amendments in in ninety one did not address the aviator's been old statute stand stand that have done forty eight what title was done for title it here but no one no party that i can find this stuff to say well wait a minute take a look at the difference between the two statutes over in title seven you got this civil rights law amendment that specifically adopted motivating factor that's incorporated in the you know the only thing that was adopted here either was that the remedial portions not the determination of liability or discrimination sections that there's there's a difference between the numbers a stuck in the mud and our argument is and we put on compared to ours to show it was his discipline for having had that conduct was more severe than others it's just like the cost of case where there's an altercation she doesn't deny the altercation she gives to deny details of the altercation she's disciplined more severely than the other person involved in the altercation and there's a mixed motive because it may be partly the alt medical evidence in the low case the tenth circuit on a trial case where the expert witness was not available a lot of the case to go back on remained based on simply the plaintiff's testimony  your honor raise two points i want to confirm should be followed if it is not just a question of discrete teachers in the conditions affecting discrete features or the added aggregate it's both you've got a lot analyze it both ways particularly important in such a situation like a back in dish and where movement in general may be impacted that's one of viki's i believe in yes but i do i do not have a cite for your honor but i believe i have read that i do a lot of speaking on the radio i believe i have read that elsewhere but i cannot provide a cite i'd be happy to look for it for the court lastly the question as to whether the changes in title seven are incorporated those